Tacoma Planning Commission Presentation11-01-05

8/8/2019 Tacoma Planning Commission Presentation11-01-05

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TODAYS DISCUSSION

Ways of talking about public access

Constitutionality Concerns

Nollan and Dolan

Shoreline Management Act

DOE Guidance

Preliminary Draft/Recommendations


2/27

WAYS OF TALKING ABOUT PUBLIC

ACCESS

Public versus Private

Water-dependent versus Non-water-dependent

Industrial versus Non-industrial

Global versus Local


3/27

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


4/27

CONSTITUTIONALITY CONCERNS

Public Comments:

No basis for requiring access on private

property The Shoreline Management Act only requiresaccess on public lands

Requirements do not meet Nollan and Dolantests


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6/27

DOLAN

A determination must be made as to whether theessential nexus exists between the legitimate stateinterest and the permit condition exacted by thecity. If the nexus exists, then a determination mustbe made as to the required degree of connectionbetween the exactions and the projected impact of

the proposed development. There must be a roughproportionality between the demands of the cityand the impact of the proposed development.


7/27

SHORELINE MANAGEMENT ACT

Priorities:

The utilization of shorelines for economically

productive uses that are particularlydependent on shoreline location or use.

The utilization of shorelines and the watersthey encompass for public access and

recreation.Protection and restoration of the ecological

functions of shoreline natural resources.


8/27

SHORELINE MANAGEMENT ACT

RCW 90.58.020:

[T]he publics opportunity to enjoy the physical and aestheticqualities of natural shorelines of the state shall be preserved tothe greatest extent feasible consistent with the overall bestinterest 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 begiven priority fordevelopment that will provide an opportunityfor substantial numbers of people to enjoy the shorelines ofthe state.


9/27

SHORELINES OF STATEWIDE

SIGNIFICANCE

Give preference to uses in the following order ofpreference:

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 theshoreline

Provide for any other element as defined in RCW90.58.100 deemed appropriate or necessary


10/27

DOE PUBLIC ACCESS GUIDANCE

Local government is encouraged to require public accessfor the following scenarios:

The proposed development or use will create demand for orincrease demand for public access.

The proposed development is for water-enjoyment, water-relatedand/or nonwater-dependent uses or for the subdivision of landinto 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 existingaccess by blocking access or discouraging use of existingaccess.

The proposed development or use will interfere with public use ofwaters subject to the Public Trust Doctrine.


11/27

COMMENTS REVISITED

No basis for requiring access on private property Act does not expresslyrequire access on private property

Public Trust Doctrine establishes public rights to waters

SMA and SMP establish public purposes

WAC Guidelines provide States interpretation of how toimplement governmental purpose

Requirements do not meet Nollan and Dolan tests

Nollan and Dolan concern how land use regulations areapplied, not the authority to condition permits

Both Nollan and Dolan uphold land use authority to deny orcondition permits to require public access to further alegitimate governmental purpose

SMP frames the legitimate governmental purpose and howwe consider nexus and proportionality


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QUESTIONS?


13/27

REVISING THE DRAFT

Four essential questions: Shouldthe use/development provide access?

(applicability)

If so, shouldthe access be on site or off site?(preference)

Canon site access be achieved?

(waiver)

Shouldwe consider off site alternatives?

(options)


14/27

APPLICABILITY

Proposed Approach

Public access shall be required to the extent allowedby law in the review of all shoreline substantial

development permits and conditional use permitsexcept for projects which meet one of the followingcriteria:

Subdivision of land into 4 or fewer dwellings

A development that consists solely of maintenancedredging, the construction of a private dock serving fouror fewer dwelling units, flood control measures,stabilization measures, signage, or lighting


15/27

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 substantialdevelopment and conditional use permits


16/27

APPLICABILITY

Recommendations

Applies to shoreline permits where certain conditionsexist

Increases or creates public demand for access

Interferes with existing access by blocking access ordiscouraging use of existing access.

Interferes with public use of waters subject to the Public Trust

Doctrine. Define what uses shouldbe providing access

Non-water-dependent uses

Public projects or projects on public lands


17/27

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 ison site between development and OHWM

S-10 Port Industrial Area: Preference is off site or 2%

contribution


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19/27

ACCESS PREFERENCES

Recommendations

On site access should alwaysbe preferred to off siteaccess

Off site access should provide greater public benefit


20/27

ACCESS WAIVER

Proposed Approach

Waiver is for on site access only

Projects located in the S-10 shoreline district orprojects associated with a water-oriented Port,Terminal and Industrial use in the S-7 or S-8 shorelinedistricts do not have to demonstrate that on site accessis 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


21/27

ACCESS WAIVER

Public Comments

All uses and development should be subject to waiverprocess, no exceptions for Port, Terminal, Industrial

uses Options should be more rigorously applied, provide

clear criteria

Maintain current approach and current waivers


22/27

ACCESS WAIVER

Recommendations

Remove waiver option for water-oriented Port, Terminaland Industrial Uses

New waiver options:

If constitutional and/or statutory limitations would beviolated

If cost of providing public access is unreasonablydisproportionate 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


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24/27

ACCESS OPTIONS

Proposed Approach

If use or development qualifies for waiver, off siteimprovements or enhancement of access is required

Available options include:

On site

Off site

2% Contribution Public Access Master Plan (limited to public entities)


25/27

ACCESS OPTIONS

Public Comments

Delete 2% contribution altogether or allow as optiononly when nexus is established

Fee in lieu is a tax, not permitted under RCW82.02.020

City is shifting burden of providing access onto private

uses


26/27

ACCESS OPTIONS

Recommendations

If analysis of a waiver request determines that on siteaccess is infeasible, the proponent shall evaluate and

implement reasonable off site improvements orenhancements

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 theaccess


27/27

REVISING THE DRAFT

Recommendations: Shouldthe use/development provide access?

Define the conditions and uses that shouldprovide access

If so, shouldthe access be on site or off site?Preference begins with on site access

Canon site access be achieved?

Waiver analysis determines whether on site is feasible

Shouldwe consider off site alternatives?

Yes.

If there is no reasonable off site project, access is not

required.

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Tacoma Planning Commission Presentation11-01-05

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