Shorelines and Public Access Power
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Transcript of Shorelines and Public Access Power
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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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CITY OF TACOMA
SHORELINE ACCESS PLAN
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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CITY OF TACOMA
SHORELINE ACCESS PLAN
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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CITY OF TACOMA
SHORELINE ACCESS PLAN
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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CITY OF TACOMA
SHORELINE ACCESS PLAN
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
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