TODAY’S DISCUSSION

• Ways of talking about public access

• Constitutionality Concerns
– Nollan and Dolan
• Shoreline Management Act
• DOE Guidance
• Preliminary Draft/Recommendations
WAYS OF TALKING ABOUT PUBLIC
ACCESS

• Public versus Private

• Water-dependent versus Non-water-
dependent
• Industrial versus Non-industrial
• Global versus Local
EXAMPLE

• New use or substantial development

– Water-orientation
– Type of use (industrial, commercial, residential)
– Public or private (property, funding, applicant)
– Scope and scale of development (undeveloped site,
expansion, addition, underground, in water)
– Conditions and site context
• Safety hazards
• Security
– Impacts
• Navigability of public waters
• View impacts
• Existing access
CONSTITUTIONALITY CONCERNS

Public Comments:
• No basis for requiring access on private
property
– The Shoreline Management Act only requires
access on public lands
• Requirements do not meet Nollan and Dolan
tests
 NOLLAN

“Although the outright taking of an uncompensated,

permanent, public access easement would violate the Takings
Clause, conditioning appellants' rebuilding permit on their
granting such an easement would be lawful land use
regulation if it substantially furthered governmental purposes
that would justify denial of the permit. The government's power
to forbid particular land uses in order to advance some
legitimate police power purpose includes the power to
condition such use upon some concession by the owner, even
a concession of property rights, so long as the condition
furthers the same governmental purpose advanced as
justification for prohibiting the use.”
DOLAN

“A determination must be made as to whether the

essential nexus exists between the legitimate state
interest and the permit condition exacted by the
city. If the nexus exists, then a determination must
be made as to the required degree of connection
between the exactions and the projected impact of
the proposed development. There must be a rough
proportionality between the demands of the city
and the impact of the proposed development.”
SHORELINE MANAGEMENT ACT

• Priorities:
– The utilization of shorelines for economically
productive uses that are particularly
dependent on shoreline location or use.
– The utilization of shorelines and the waters
they encompass for public access and
recreation.
– Protection and restoration of the ecological
functions of shoreline natural resources.
SHORELINE MANAGEMENT ACT

RCW 90.58.020:
•“[T]he public’s opportunity to enjoy the physical and aesthetic
qualities of natural shorelines of the state shall be preserved to
the greatest extent feasible consistent with the overall best
interest of the state and the people generally.
•“Alterations of the natural conditions of the shorelines of the
state, in those limited instances when authorized, shall be
given priority for…development that will provide an opportunity
for substantial numbers of people to enjoy the shorelines of
the state.”
SHORELINES OF STATEWIDE
SIGNIFICANCE

Give preference to uses in the following order of

preference:
• Recognize and protect the statewide interest over local
interest
• Preserve the natural character of the shoreline
• Result in long term over short term benefit
• Protect the resources and ecology of the shoreline
• Increase public access to publicly owned areas
• Increase recreational opportunities for the public in the
shoreline
• Provide for any other element as defined in RCW
90.58.100 deemed appropriate or necessary
DOE PUBLIC ACCESS GUIDANCE

Local government is encouraged to require public access

for the following scenarios:
• The proposed development or use will create demand for or
increase demand for public access.
• The proposed development is for water-enjoyment, water-related
and/or nonwater-dependent uses or for the subdivision of land
into more than four parcels.
• The development or use is proposed by a public entity
• The development or use is proposed on public lands.
• The proposed development or use will interfere with existing
access by blocking access or discouraging use of existing
access.
• The proposed development or use will interfere with public use of
waters subject to the Public Trust Doctrine.
COMMENTS REVISITED

• No basis for requiring access on private property

– Act does not expressly require access on private property
– Public Trust Doctrine establishes public rights to waters
– SMA and SMP establish public purposes
– WAC Guidelines provide State’s interpretation of how to
implement governmental purpose
• Requirements do not meet Nollan and Dolan tests
– Nollan and Dolan concern how land use regulations are
applied, not the authority to condition permits
– Both Nollan and Dolan uphold land use authority to deny or
condition permits to require public access to further a
legitimate governmental purpose
– SMP frames the legitimate governmental purpose and how
we consider nexus and proportionality
QUESTIONS?
REVISING THE DRAFT

Four essential questions:

• Should the use/development provide access?
(applicability)
• If so, should the access be on site or off site?
(preference)
• Can on site access be achieved?
(waiver)
• Should we consider off site alternatives?
(options)
APPLICABILITY

• Proposed Approach
– Public access shall be required to the extent allowed
by law in the review of all shoreline substantial
development permits and conditional use permits
except for projects which meet one of the following
criteria:
• Subdivision of land into 4 or fewer dwellings
• A development that consists solely of maintenance
dredging, the construction of a private dock serving four
or fewer dwelling units, flood control measures,
stabilization measures, signage, or lighting
APPLICABILITY

• Public Comments
– Should not apply to private uses and development
– Should only apply to public properties
– Should not apply to water-dependent uses
– Incompatible with industrial uses
– No nexus to industrial development
– Maintain current approach: applies to all substantial
development and conditional use permits
APPLICABILITY

• Recommendations
– Applies to shoreline permits where certain conditions
exist
• Increases or creates public demand for access
• Interferes with existing access by blocking access or
discouraging use of existing access.
• Interferes with public use of waters subject to the Public Trust
Doctrine.
– Define what uses should be providing access
• Non-water-dependent uses
• Public projects or projects on public lands
ACCESS PREFERENCES

• Proposed Approach
– Water-oriented Port, Terminal, Industrial uses:
preference is for off site access or 2% contribution
– Water-enjoyment and non-water-oriented: preference is
on site between development and OHWM
– S-10 Port Industrial Area: Preference is off site or 2%
contribution
ACCESS PREFERENCES

• Public Comments
– Preference should be on site first and foremost for all
uses and development
– Opposition to preferences for off site or 2% contribution
ACCESS PREFERENCES

• Recommendations
– On site access should always be preferred to off site
access
– Off site access should provide greater public benefit
ACCESS WAIVER

• Proposed Approach
– Waiver is for on site access only
– Projects located in the S-10 shoreline district or
projects associated with a water-oriented Port,
Terminal and Industrial use in the S-7 or S-8 shoreline
districts do not have to demonstrate that on site access
is infeasible or incompatible
– Waiver for security, safety or environmental harm
– Waiver for detrimental impact to operations
– More meaningful access can be provided elsewhere,
consistent with Plan
ACCESS WAIVER

• Public Comments
– All uses and development should be subject to waiver
process, no exceptions for Port, Terminal, Industrial
uses
– Options should be more rigorously applied, provide
clear criteria
– Maintain current approach and current waivers
ACCESS WAIVER

• Recommendations
– Remove waiver option for water-oriented Port, Terminal
and Industrial Uses
– New waiver options:
• If constitutional and/or statutory limitations would be
violated
• If cost of providing public access is unreasonably
disproportionate to the long-term cost of the proposed
development.
– Identify specific information and materials the City may
require to determine if the project meets waiver criteria
ACCESS WAIVER

• Recommendations
– Require an evaluation of reasonable on site
alternatives:
• Regulating hours of access
• Design
• Other types of access
• Separation of uses
ACCESS OPTIONS

• Proposed Approach
– If use or development qualifies for waiver, off site
improvements or enhancement of access is required
– Available options include:
• On site
• Off site
• 2% Contribution
• Public Access Master Plan (limited to public entities)
ACCESS OPTIONS

• Public Comments
– Delete 2% contribution altogether or allow as option
only when nexus is established
– “Fee in lieu” is a tax, not permitted under RCW
82.02.020
– City is shifting burden of providing access onto private
uses
ACCESS OPTIONS

• Recommendations
– If analysis of a waiver request determines that on site
access is infeasible, the proponent shall evaluate and
implement reasonable off site improvements or
enhancements
– Remove fee in lieu as an option
– Identify priority shorelines: “Dome to Defiance”
– If reasonable off site improvements or enhancement
can not be identified, can approve the use without the
access
REVISING THE DRAFT

Recommendations:
• Should the use/development provide access?
Define the conditions and uses that should provide access
• If so, should the access be on site or off site?
Preference begins with on site access
• Can on site access be achieved?
Waiver analysis determines whether on site is feasible
• Should we consider off site alternatives?
Yes.
If there is no reasonable off site project, access is not
required.