public access

Hot Issues in Shoreline Master Program Updates

Tim Trohimovich, AICP, JD, Futurewise

*Public Access

*SMA requires public access

*Increasing public access is one of the policies of the Shoreline Management Act (SMA). RCW 90.58.020

*Public access improvements are also a priority use. RCW 90.58.020

*RCW 90.58.100(2)(b) requires Shoreline Master Programs (SMPs) to include “[a] public access element making provision for public access to publicly owned areas”

*Guidelines Require Planning for Public Access

*The guidelines identify public access as one of the issues that may need to be addressed comprehensively in the update. WAC 173-26-201(1)(d)

*Existing and potential shoreline public access sites are to be inventoried. WAC 173-26-201(3)(c)(vi)

*For shorelines of statewide significance, identify public access needs and opportunities within the jurisdiction and explore actions to enhance shoreline recreation facilities. WAC 173-26-201(3)(d)(iv)

*SMP Guidelines Require Public

Access

* WAC 173-26-221(4)(d)(i) requires policies and regulations that protect and enhance both physical and visual public access

* WAC 173-26-221(4)(d)(ii) and (iii) mandate that SMPs require:

* Public access for public agency shoreline development

* The dedication and improvement of public access in developments for water-enjoyment, water-related, and nonwater-dependent uses and for the subdivision of land into more than four parcels. Except:

* Where the local government provides more effective public access through a public access planning process described in WAC 173-26-221(4)(c)

* Where it is demonstrated to be infeasible due to reasons of incompatible uses, safety, security, or impact to the shoreline environment or due to constitutional or other legal limitations that may be applicable

* For individual single-family residences not part of a development planned for more than four parcels

* Public access pathways required for dikes, levees, similar structures. WAC 173-26-221(3)(c)(iv)

* SMPs must include provisions to minimize the impacts to existing views from public property or substantial numbers of residences. WAC 173-26-221(4)(d)(iv)

* SMPs must assure that public access improvements do not result in a net loss of shoreline ecological functions. WAC 173-26-221(4)(d)(v)

*SMPs must comply with the

Guidelines

*RCW 90.58.080(1) requires that “[l]ocal governments shall develop or amend a master program for regulation of uses of the shorelines of the state consistent with the required elements of the guidelines adopted by the department ….”

*90.58.030(3)(c) provides in part that a “‘[c]omprehensive master program update’ means a master program that fully achieves the procedural and substantive requirements of the department guidelines effective January 17, 2004, as now or hereafter amended;”

*Public Trust Doctrine

*The Shoreline Management Act (SMA) reflects public trust principles and is the way the state manages this interest as to development. Orion Corp. v. State, 109 Wn.2d 621

*The jus publicum or public authority interest. The right of navigation, together with its incidental rights of fishing, boating, swimming, water skiing, and other related recreational purposes generally regarded as corollary to the right of navigation and the use of public waters

*The public authority interest remains with existing or former navigable waterways, including those that have been filled or developed

*Hot Issues

*Must the SMP require public access on private property?

* Yes

* Include public access improvements?

* Yes

* Is this constitutional?

* Yes

* Is this morally right?

* Yes

*How will these improvements be maintained?

* Should be addressed in the SMP update process

*Will my SMP update be appealed if it does not incorporate public access consistent with the guidelines?

* What do you think?

*Resources

*Ralph W. Johnson et al., The Public Trust Doctrine and Coastal Zone Management in Washington State (October 1991) at: http://www.ecy.wa.gov/biblio/93054.html