SMP public access provisions remain controversial; Public Trust Doctrine vs. US Constitution

Public Access Provisions remain an element of controversy in Renton’s proposed SMP. This is not surprising, as the issue essentially pits the US Constitution (which states “…nor shall property be taken for public use, without just compensation”), against the Public Trust Doctrine, the ancient premise the public ownership of our waterways transcends lawmaking altogether (e.g. no law can take the oceans and certain other waterways away from the public.)

Throughout our county there have been countless legal battles regarding waterway access, that usually come down to balancing the US Constitution and The Public Trust Doctrine. And every law produced by congress, the state, the county, or a city, is subordinate to these two supreme codes. Since the Constitution and the Public Trust Doctrine are both nearly unchangeable and open to broad interpretation, the judicial branch currently has more power to affect laws regarding water access (through case-law decisions) then any legislative body in existence. And courts have been doing so.

Still, the City of Renton has been tasked by the state with developing broad, constitutionally acceptable public access rules for waterfront property in Renton. The State Administrative Code specifically says “Local governments should plan for an integrated shoreline area public access system that identifies specific public needs and opportunities to provide public access. … The planning process shall also comply with all relevant constitutional and other legal limitations that protect private property rights.” So as part of the SMP process, we are attempting to construct our public access laws knowing full well that we are not the final authority, and that we could end up in court like so many other jurisdictions have if we don’t balance the interests just right. (Wish us luck!)

So how do we do it? I can only speak for myself on this topic. Here are some of my most candid thoughts.

Boaters should feel free to travel on our lake, and float down our river, with no interference or admonishment by property owners. If two kids in a rubber raft need to stop in the mud at the edge of the Cedar River to re-inflate their boat, I believe they have that right under the Public Trust Doctrine, even if the upland property owner would prefer they not stop there. Likewise, if a fisherwoman in hip waders wanders in the shallows next to your riverfront property, you should let them fish– they have a supreme right to be in the river.

Children on the tide lands getting yelled at by territorial homeowners or their agents is too common in our area. I took this picture after witnessing such an altercation last summer at the edge of Salt Water State Beach. New state shoreline rules, and court decisions in other states favoring the Public Trust Doctrine, suggest that public access to Washington’s waterways will be increasing. This is particularly true of our tide lands, which many people feel are part of the ocean– the argument is that the state never owned the ocean, so it therefore had no right to sell part of it.

If our city bordered Puget Sound, I would be aggressive with public access there as well. If a photographer is looking at tide pools at a public access point on Puget Sound, and they spot an unusual star fish 20 feet away in a tide pool in the tide flats below a private residence, I believe they have a right under the Public Trust Doctrine to scramble to the stafish for a closer look. (Be aware there are waterfront property owners who would disagree with me, and some of them are stubborn; so be prepared to get in a confrontation if you try this. Some will argue that their great-great-grandfather purchased the tide-flat from the state years ago. But a growing body of case law says that the state never owned the sand and tide pools between the low and high tides, and hence could not sell this resource to a private homeowner. This issue has not been resolved in our state.)

Bottom line, I’m progressive on water access. Don’t get between me and a tidepool in THE PUBLIC’S tide-flats, and we won’t get into any arguments. And don’t try to stop me from floating past your property on the PUBLIC’S river, and we will be just fine.

However, once you get above the high water mark of the body of water, public access rights become murkier or non-existent. The sandy areas of saltwater beaches are widely in dispute on this point, because of the presence of annual extreme high and low tides which make the limits of the ocean disputable. Courts have had an easier time finding a bright line for property ownership on freshwater lakefront, when the water line is relatively constant. River boundaries are not as easy to define as lakes, but perhaps easier than salt-water beaches. In all these cases, land which is never underwater is generally assumed to be eligible for private ownership.

This is where the constitution comes in. As a councilman, I have been officially sworn to uphold the US Constitution (along with the laws of the state.) And the fifth amendment of the US Constitution makes it clear that private property can not be taken by the public without “just compensation”. What constitutes “just compensation” is clearly open to debate, but it is often a cash payment. It can be something else of value.

Our proposed SMP asks property owners in some cases to dedicate an easement for a trail across the dry portions of their property (above the high water line), and to physically construct the trail as part of their development. In some circumstances this is required outright, and in others it is a condition of being able to develop a larger project closer to the water.

While I love waterfront trails myself, this could raise the question of whether “permission to build” is in itself “just compensation” for the trail dedication. Evidence in favor– developers often dedicate roads and utilities to the city when they build, as part of the development agreement. Evidence against– these roads and utilities are almost always connected to the development project, and are necessary for access and operation of the building; a waterfront trail for the public is somewhat different. Evidence in favor– we require developers to either build park amenities or contribute to a parks fund when they build. Evidence against–a public waterfront trail may be above and beyond the typical burden placed on a developer, and I do not know if we have offered to waive the parks fee as part of the SMP.

In summary, balancing the public access rights with the private property rights is a complicated and often controversial process. We will discuss this topic as part of our final council deliberations on the SMP tomorrow night.

PUBLIC TRUST DOCTRINE: …the waters of the state are a public resource owned by and available to all citizens equally for the purposes of navigation, conducting commerce, fishing, recreation and similar uses and that this trust is not invalidated by private ownership of the underlying land. Click here for more information

US CONSTITUTION, FIFTH AMENDMENT: … nor shall private property be taken for public use, without just compensation.

WASHINGTON ADMINISTRATIVE CODE Section 173-26-221

(4) Public access.

(a) Applicability. Public access includes the ability of the general public to reach, touch, and enjoy the water’s edge, to travel on the waters of the state, and to view the water and the shoreline from adjacent locations. Public access provisions below apply to all shorelines of the state unless stated otherwise.

(b) Principles. Local master programs shall:

(i) Promote and enhance the public interest with regard to rights to access waters held in public trust by the state while protecting private property rights and public safety.

(ii) Protect the rights of navigation and space necessary for water-dependent uses.

(iii) To the greatest extent feasible consistent with the overall best interest of the state and the people generally, protect the public’s opportunity to enjoy the physical and aesthetic qualities of shorelines of the state, including views of the water.

(iv) Regulate the design, construction, and operation of permitted uses in the shorelines of the state to minimize, insofar as practical, interference with the public’s use of the water.

(c) Planning process to address public access. Local governments should plan for an integrated shoreline area public access system that identifies specific public 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 planning process shall also comply with all relevant constitutional and other legal limitations that protect private property rights.

PROPOSED RENTON SHORELINE MASTER PROGRAM:

b. Public Access Required: Public access shall be provided for the following
development, subject to the criteria in subsection d.

i. Water‐dependent uses and developments that increase public use of the
shorelines and public aquatic lands, or that would impair existing legal access opportunities, or that utilize public harbor lands or aquatic lands, or that are developed with public funding or other public resources.

ii. Non‐water‐dependent development and uses shall provide community and/or
public access consistent with the specific use standards in RMC 4‐3‐090E Use Regulations unless ecological restoration is provided.

iii. Developments of more than ten (10) single‐family residential lots or single‐family dwelling units, including subdivision, within a proposal or a contiguously owned parcel are required to provide public access. Developments of more than four (4), but less than ten (10) single‐family residential lots or single‐family dwelling units, including subdivision, within a proposal or a contiguously owned parcel are required to provide community access.

iv. Development of any non‐single family residential development or use consistent
with the specific use standards in RMC 4‐3‐090E.9 Residential Development.

v. Any use of public aquatic lands, except as related to single‐family residential use of the shoreline, including docks accessory to single‐family residential use.
vi. Publicly financed or subsidized flood control or shoreline stabilization shall not
restrict public access to the shoreline and shall include provisions for new public access to the maximum extent feasible.

vii. Public access provided by shoreline street ends, public utilities, and rights of way shall not be diminished by any public or private development or use (RCW 35.79.035 and RCW 36.87.130).
….
d. Design Criteria for Public Access Sites: Public access shall incorporate the following

location and design criteria:

i. Walkways or Trails Required in Vegetated Open Space: Public access on sites
where vegetated open space is provided along the shoreline shall consist of a public pedestrian walkway parallel to the ordinary high water mark of the property. The walkway shall be buffered from sensitive ecological features, may be set back from the water’s edge, and may provide limited and controlled access to sensitive features and the water’s edge where appropriate. Fencing may be provided to control damage to plants and other sensitive ecological features and where appropriate. Trails shall be constructed of permeable materials and limited to 4 to 6 feet in width to reduce impacts to ecologically sensitive resources.

ii. Access Requirements for Sites Without Vegetated Open Space: Public access on
sites or portions of sites not including vegetated open space shall be not less than ten (10) percent of the developed area within shoreline jurisdiction or three thousand (3,000) square feet, whichever is greater, on developments including non‐water‐dependent uses. For waterdependent uses, the amount and location may be varied in accordance with the criteria in Subsection 4‐3‐090.F.3. Public access facilities shall extend along the entire water frontage, unless such facilities interfere with the functions of water‐dependent uses. The minimum width of public access facilities shall be 10 feet and shall be constructed of materials consistent with the design of the development provided that facilities addressed in the Renton Bicycle & Trails Master Plan shall be developed in accordance with the standards of that plan.

…..
vi. Fund for Off‐Site Public Access: The City shall provide a fund for off‐site public access and may assess charges to new development that do not meet all or part of their public access requirements. Such a fund and charges may be part of or coordinated with park impact fees. Off‐site public access shall be developed in accordance with the reach policies for public access.

e. Public Access Development Standards: Public access facilities shall incorporate the
following design and other features.

i. Relation to other facilities:
(a) Preferred Location: Public access shall be located adjacent to other public
areas, accesses, and connecting trails, connected to the nearest public street, and include provisions for handicapped and physically impaired persons, where feasible.

(b) Parking Requirements: Where public access is within 400 feet of a public
street, on‐street public parking shall be provided, where feasible. For private developments required to provide more than 20 parking spaces, public parking may be required in addition to the required parking for the development at a ratio of one (1) space per 1,000 square feet of public access area up to three (3) spaces and at one space per 5,000 square feet of public access area for more than three (3) spaces. Parking for public access shall include the parking spaces nearest to the public access area and may include handicapped parking if the public access area is handicapped accessible.

(c) Planned Trails To Be Provided: Where public trails are indicated on the City’s
transportation, park, or other plans, construction of trails shall be provided within shoreline and non‐shoreline areas of a site.

ii. Design:

(a) General: Design of public access shall provide the general public with
opportunity to reach, touch, and enjoy the water’s edge and to view the water and the
shoreline from adjacent locations and shall be as close horizontally and vertically to the shoreline’s edge as feasible, provided that public access does not adversely affect sensitive ecological features or lead to an unmitigated reduction in ecological functions.

(b) Privacy: Design shall minimize intrusions on privacy of adjacent use by
avoiding locations adjacent to residential windows and/or outdoor private residential open spaces or by screening or other separation techniques.

iii. Use and Maintenance:

(a) Public Access Required for Occupancy: Required public access sites shall be
fully developed and available for public use at the time of occupancy of the use or activity or in accordance with other provisions for guaranteeing installation through a monetary performance assurance.

(b) Maintenance of Public Access Required: Public access facilities shall be
maintained over the life of the use or development. Future actions by successors in interest or other parties shall not diminish the usefulness or value of required public access areas and associated improvements.

(c) Public Access Must be Legally Recorded: Public access provisions on private
land shall run with the land and be recorded via a legal instrument such as an easement, or as a dedication on the face of a plat or short plat. Such legal instruments shall be recorded prior to the time of building occupancy or plat recordation, whichever comes first.

(d) Maintenance Responsibility: Maintenance of the public access facility shall
be the responsibility of the owner unless otherwise accepted by a public or non‐profit agency through a formal recorded agreement.

(e) Hours of Access: Public access facilities shall be available to the public 24
hours per day unless an alternate arrangement is granted though the initial shoreline
permitting process for the project. Changes in access hours proposed after initial permit approval shall be processed as a shoreline conditional use.

(f) Signage Required: The standard state‐approved logo or other approved signs
that indicate the public’s right of access and hours of access shall be installed and maintained by the owner. Such signs shall be posted in conspicuous locations at public access sites and at the nearest connection to an off‐site public right of way.