On the Chesapeake Bay side of Accomack County, Saxis and Tangier islands are two barrier islands that have been developed. On the Eastern Shore, most barrier islands have been left in their natural state rather than developed into vacation resorts. Two exceptions, Chincoteague and Wallops islands, have been developed. Those two are fetch-limited barrier islands, where modern development is protected from direct Atlantic Ocean wave action.
On Hog Island, the community of Broadwater was abandoned in the 1930's after shoreline erosion and storms caused extensive flooding. Many of the structures in Broadwater were floated over to Willis Wharf on the mainland, where they became part of the "Little Hog Island" community. As described by the Accomack-Northampton Planning District Commission:1
Efforts to develop the third, Cedar Island, have demonstrated the folly of building houses on exposed barrier islands - and the challenge to traditional concepts of real estate ownership, when the property consists of sand that moves.
Twice, developers planned to sell thousands of lots and build houses on Cedar Island. In the 1950's, Richard Hall proposed developing "Ocean City." He platted 2,000 lots, and proposed a bridge connecting the island to the Eastern Shore mainland. He expected to generate private profits from the new publicly-funded access to the Eastern Shore, after the US 50 highway was extended east by a new bridge across the Chesapeake Bay from Annapolis. Hall advertised in his 1951 sales brochure:2
In the 1980's, Hall's granddaughter Elizabeth and her husband, Ben Benson, tried once again to market the island as a site for vacation homes. They owned roughly 95% of the 2,100 acres of the island, and sold $3 million worth of lots. This time the sales brochure said:3
Cedar Island, south of Metompkin Island, is occasionally broken into two parts by an inlet
Source: US Geological Survey, Metompkin Inlet 1:24,000 topographic Map
The Virginia Marine Resources Commission chose to authorize the development, under Virginia's Barrier Island Policy. The geological instability of the island was well known - in 1987, a state report noted the erosion rate was 18-21 feet per year, and 90% of the island was inundated at least once every ten years. VMRC expected to issue permits for 69 residences to be built on the island.4
A line of houses on Cedar Island could block the recycling of sand though washover, redirecting the sand to offshore shoals and causing the entire above-water portion to disappear. In 1986, the Virginia Institute of Marine Science (VIMS) determined:5
In 1990 the Virginia Marine Resources Commission revised its regulations allowing new homes to be constructed on barrier islands. It adopted a formula to determine how far back new structures had to be located from receding shorelines. Staff had recommended requiring new structures to be located far from the shoreline, at least 50 times the 100-year recession rate. Based on that recommendation, "average" erosion would not threaten the house for the next 50 years.6
Instead, the state agency established a policy (still in effect) allowing construction closer to the water:7
The difference between the 50-year line and the 20-year line made construction of new beachfront cottages far more attractive:8
By 1997, property owners had constructed 27 houses on the side of Cedar Island facing the ocean. Today, only two homes and the former Coast Guard station remain on the island. Other structure have fallen victim to the rapid migration of the sand, and the Virginia Marine Resources Commission is forcing former homeowners to remove the pilings that once supported structures, but are now on submerged land and creating a risk to navigation.9
Land ownership on the island today is confusing. The US Fish and Wildlife Service and The Nature Conservancy have purchased parcels, while others remain in private ownership. The Cedar Island Division of Chincoteague National Wildlife Refuge contains over 1,400 acres in fee title and 600 acres in easements, including 1,200 acres donated in fee and another 600 acres of easements donated by the Bensons in 1986.10
The biggest legal challenge today involves dealing with submerged lots. Real estate law recognizes that shorelines change naturally. If change is gradual, then submerged areas can accumulate sediments and become upland. To ensure waterfront property owners retain access to the water, "accreted" land is simply added to theownership of adjacent property. However, if the shift in a shoreline is sudden, typically through a storm or "avulsion," then property lines may remain fixed and the old shoreline property owner may discover that someone else owns the new land, blocking access to the water.
On Cedar Island, sand has migrated and land has been lost due to accretion. Entire lots that were once waterfront property are now completely submerged. Old subdivision property lines are still used by Accomack County to bill for property taxes, even if the current lot is underwater. Legally, it is unclear if the old lot is still privately owned, or if the Commonwealth of Virginia acquired title once the entire lot became submerged land below the low-water mark.
Taking advantage of the confusion, an attorney purchased lots on Cedar Island. He then claimed that a 140-acre sandbar had "rolled back" on top of the lot boundaries, so it was his private property. The sandbar was not suitable for a new dwelling, but did have value as a popular recreational stop-off for boaters. The Commonwealth of Virginia contended that the sandbar was state property, separate from Cedar Island until recent sand migration. Until private property land claimns are acquired by the state, the US Fish and Wildlife Service, or The Nature Conservancy, it will not be the last time the confusion over ownership leads to a lawsuit.11
References1. "Hazard Mitigation Plan," Eastern Shore Hazard Mitigation Planning Committee, Accomack-Northampton Planning District Commission, 2011, p.31, http://www.a-npdc.org/hazardplan.pdf (last checked August 31, 2012)
2. "The swift retreat of Cedar Island Erosion: Once touted as an unspoiled hideaway by developers, this Virginia island is disintegrating. So are the homes. Many owners are leaving them to fall into the ocean and litter the beach," Baltimore Sun, February 20, 1998, http://articles.baltimoresun.com/1998-02-20/news/1998051038_1_cedar-island-virginia-island-assateague-island (last checked August 31, 2012)
3. "The swift retreat of Cedar Island Erosion: Once touted as an unspoiled hideaway by developers, this Virginia island is disintegrating. So are the homes. Many owners are leaving them to fall into the ocean and litter the beach," Baltimore Sun, February 20, 1998, http://articles.baltimoresun.com/1998-02-20/news/1998051038_1_cedar-island-virginia-island-assateague-island; James J. Szablewicz, "Development Of Barrier Islands In Virginia," Virginia Journal of Natural Resources Law, Vol. 6, Issue 2 (Spring 1987), p.401, http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/velj6&div=17&id=&page= (last checked August 31, 2012)
4. "The Commonwealth's Tidal Shoreline Erosion Policy," House Document No. 41, March 1987, p.7, http://leg2.state.va.us/dls/h&sdocs.nsf/fc86c2b17a1cf388852570f9006f1299/4ea90bcb9e408a1985255fda00753b8f/$FILE/HD41_1987.pdf (last checked August 31, 2012)
5. "Assessment Of The Development Of Cedar Island, Virginia," November 10, 1986, Appendix B of "The Commonwealth's Tidal Shoreline Erosion Policy," House Document No. 41, March 1987, http://leg2.state.va.us/dls/h&sdocs.nsf/fc86c2b17a1cf388852570f9006f1299/4ea90bcb9e408a1985255fda00753b8f/$FILE/HD41_1987.pdf (last checked August 31, 2012)
6. "VMRC Puts Stricter Rules On Barrier Islands," Newport News Daily Press, August 29, 1990, http://articles.dailypress.com/1990-08-29/news/9008290229_1_barrier-islands-cedar-island-property-owners (last checked August 31, 2012)
7. "Barrier island policy," Virginia Administrative Code 4VAC20-440-10, http://leg1.state.va.us/cgi-bin/legp504.exe?000+reg+4VAC20-440-10 (last checked August 31, 2012)
8. "VMRC Puts Stricter Rules On Barrier Islands," Newport News Daily Press, August 29, 1990
9. "On Cedar Island, homes wash away, danger remains," DelmarvaNow, August 20, 2012, http://www.delmarvanow.com/article/20120820/ESN01/120820001/On-Cedar-Island-homes-wash-away-danger-remains (last checked August 31, 2012)
10. "Transportation Observations, Considerations and Recommendations for Chincoteague National Wildlife Refuge," Interagency Transportation Assistance Group (TAG), January 8-10, 2008, http://www.volpe.dot.gov/coi/ppoa/publiclands/projects/docs/chincoteague_fta.pdf; "Split VMRC To Allow More Activity On Cedar Island," Newport News Daily News, July 12, 1989, http://articles.dailypress.com/1989-07-12/news/8907120065_1_wooden-pier-vmrc-barrier-island (last checked September 2, 2012)
11. "Lawsuit may privatize lands at Cedar Island's north end," DelmarvaNow, September 1, 2012, http://www.delmarvanow.com/article/20120901/ESN01/209010302/Lawsuit-may-privatize-lands-Cedar-Island-s-north-end?odyssey=tab|topnews|text|Eastern%20Shore%20News (last checked September 2, 2012)
land ownership (fee and easement) of US Fish and Wildlife Service on Cedar Island
Source: US Fish and Wildlife Service, Chincoteague National Wildlife Refuge - Cedar Island Division