Shorelines and Public Access Power

8/8/2019 Shorelines and Public Access Power

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CITY OF TACOMA

SHORELINE ACCESS PLAN

6.5 Public Access

6.5.1 Policies

1. Public access to shorelines is required,where feasible, to the fullest extent

allowed by law, provided that the provision

of the public access results in no net loss

of ecological function.

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4. Where public access cannot be

provided on-site, the City should consider

innovative measures to allow permitapplicants to provide public access off-

site, including contributing to a public

access fund to develop planned shoreline

access projects.

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5. Public access provisions should be

consistent with all relevant constitutional

and other limitations that apply to publicrequirements that are placed on private

property, including the nexus and

proportionality requirements.

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6. Public access requirements on privately

owned lands should be commensurate

with the scale of the development andshould be reasonable, effective and fair to

all affected parties including but not limited

to the landowner and the public

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13. Off-site public access or other innovative

methods for providing public access are

preferred for satisfying the public access

requirements of this Program for alldevelopment within the S-10 Shoreline District,

and for water-oriented Port, Terminal, and

Industrial uses in the S-7 and S-8 shoreline

districts.

Sept. Draft, pp. 89

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"to the fullest extent allowed by law"

Nollan and Dolan define Constitutional

limits.

Project must create the demandnexus Mitigation must be reasonably related to the

demand created by the project

proportionality

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WAC Guidelines Require Protection of

Property Interests

(c) Planning process to address public access. Local governments

should plan for an integrated shoreline area public access system that

identifies specificpublic needs and opportunities to provide public access.

Such a system can often be more effective and economical than applying

uniform public access requirements to all development. This planning

should be integrated with other relevant comprehensive plan elements,especially transportation and recreation. The planningprocess shall also

complywith allrelevantconstitutional andother legal limitations that

protectprivate propertyrights.

WAC 173-26-221(4), emphasis supplied.

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Right to Exclude Others is a

Fundamental Property Right

In this case, we hold that the right to

exclude, so universally held to be a

fundamental element of the property right,

FN11 falls within this category of interests

that the Government cannot take without

compensation.

Kaiser Aetna v. U. S., 444 U.S. at 179-180.

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Public Trust Doctrine Does Not

Supersede Nollan and Dolan

According to the public trust doctrine, the State holdsstate shorelines and waters in trust for the people ofWashington, and the state can no more convey or giveaway this jus publicum [FN8] interest than it canabdicate its police powers in the administration ofgovernment and the preservation of the peace.

FN8. Jus publicum refers to the principle that the public has an overriding

interest in the navigable waterways andthe lands underthem. Caminiti,

107 Wash.2d at 668, 732 P.2d 989.

Samson v. City of Bainbridge Island, 149 Wn. App. 33, 202 P.3d 334(2009).

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Public Trust Doctrine Does Not

Supersede Nollan and Dolan

He does not from the mere circumstance that he is theowner of the bank, acquire any special or particularinterest in the stream, over any other member of thepublic, except that, by his proximity thereto, he enjoysgreater conveniences than the public generally. To him,riparian ownership brings no greater rights than thoseincident to all the public, except that he can approach thewaters more readily, andover lands whichthe generalpublichave norightto use forthatpurpose.

U.S. v. Willow River Power Co., 324 U.S. at 507-508,emphasis supplied.

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Navigational Servitude Limited to Waters

and Lands Under Them

The navigational servitude, which exists by virtue of theCommerce Clause in navigable streams, gives rise to anauthority in the Government to assure that such streamsretain their capacity to serve as continuous highways for

the purpose of navigation in interstate commerce. Butnone of these cases ever doubted that when theGovernment wished to acquire fast lands, it was requiredby the Eminent Domain Clause of the Fifth Amendmentto condemn andpay fair value for that interest.

Kaiser Aetna v. U. S., 444 U.S. at 177.

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Gov't Must Show Compelling Public Interest,

Not Mere Proximity and Public Desire

to Secure Public Access

We view the Fifth Amendments Property Clause to be more than a

pleading requirement, and compliance with it to be more than an exercise

in cleverness and imagination. As indicated earlier, our cases describe the

condition for abridgement of property rights through the police power as a

substantialadvanc[ing] of a legitimate state interest. We are inclined tobe particularly careful about the adjective where the actual conveyance of

property is made a condition to the lifting of a land-use restriction, since

in that context there is heightened risk that the purpose is avoidance of the

compensation requirement, rather than the statedpolice-power objective.

Nollan v. Calif. Coastal Commission, 483 U.S at 841, emphasis supplied.

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Here, the city made an adjudicative

decision to [require public access

for] petitioners application for a

building permit on an individual parcel.

In this situation, the burden properly

rests on the city.

Dolan v. CityofTigard, 512 U.S at 391,Footnote 8.

Burden of Proof is on the Government to Prove

Need For Required Public Access

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The City Needs to Limit Public Access

Requirements to Appropriate Cases to

Protect Private Property

The public trust doctrine in this state, similar to the federalrights in navigation, are limited to the public interest in thebeds and shores of the states navigable waters. As such,

the authority to regulate uplands under the public trustdoctrine is limited to protection of that interest. While suchinterests include interests in the recreational use of thewater and the necessary need to access the water, theShoreline Management Act limits the upland requirementsfor public access to public access of publicly owned

shorelines and does not provide rationale or justification forpublic access across private lands outside traditionalnotions of nexus and proportionality recognized at the stateand federal level.

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Presented by

Alexander W. "Sandy" Mackie

Perkins Coie LLP

1201 Third Avenue, Suite 4800Seattle, WA 98101-3099

206-359-8653

[email protected]

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Shorelines and Public Access Power