Public Access Issues Under The Shoreline Management Act
I attended a KCBA Environmental and Land Use Section’s April Brown Bag CLE earlier this week. The topic was “The Shoreline Management Act and Public Access.” There were some interesting issues presented on public access required under The Shoreline Management Act.
As a shoreline property owner, what are obligations do you have to provide public access to or across your property, and what limits are placed on government to command public access to or across your property?
There are both statutory and constitutional limits to mandating public access to private property. However, government must also assure that private property interests are protected, and the property owner is not required to prove the illegality of government requiring dedication of private property for public access. The government must prove the nexus of a reasonable relationship between the condition imposed and the burdens created by obtaining the access sought. The government must also demonstrate the proportionality between its exactions demanded from the property owner, the resulting impact created and condition imposed and the need for some reasonable relationship to a substantial governmental purpose. Government must show that the condition imposed on property rights is reasonably necessary under the circumstances.
The U.S. Supreme Court has stated that an essential element of individual property is the legal right to exclude others from enjoying it. Nollan v. Cal. Coastal Com, 483 U.S. 825 (U.S. 1987). Public guidelines encourage public access where at all feasible, “recognizing and protecting private property rights consistent with the public interest….” RCW 90.58.020. Thus, a property owner is not to be left in the position of having to challenge a government master plan requirement to provide public access.
Nevertheless, one has to expect that there will be ongoing issues between shoreline property owners and governmental agencies over public access issues under the Act.
