Plan and Regulate for Access
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Plan and Regulate for Access

  • Towns, the state, and the federal government can regulate in ways that address coastal access.
  • Regulation may take the form of zoning, harbor management, or environmental regulation that protects ocean resources.
  • Regulation is best used to limit the types of development that are either incompatible with access, or displace uses that have historically provided access.
  • While creating and enforcing regulations is unique to the government, knowledge of the planning process will enable interested parties to provide support for effective regulations and plan for the future of their towns.
  • Governments have authority to use their regulatory power on behalf of the public, with restrictions. The legal doctrines involved include police power, the common law public trust doctrine, and the protection of private property provided by the "takings" clause of the U.S. Constitution. For a more in-depth description of legal authority, visit Common Law and Statutes and Eminent Domain and Takings.

Overview

What planning processes exist for securing access in waterfront towns?

Comprehensive planning: Under the Maine Growth Management Act, towns are required to have a comprehensive plan to guide orderly growth and support land use regulation and zoning ordinances. Comprehensive Plans are required to address public access to coastal waters for recreation and marine harvesting activities. More information on Comprehensive Planning is available at the State Planning Office or contact your regional planning commission (click here for a list by region).

Harbor planning: Harbor management plans direct the town harbormaster in oversight and enforcement of harbor use rules and regulations established by local ordinance. Ideally, harbor plans are created from the town’s comprehensive plan, and are often linked to a harbor management ordinance.

Shoreline Access Planning: Coastal communities can undertake public access studies and analyses to document the need for improved and enhanced access, locate potential access sites and facilities, and undertake projects to acquire and develop access to coastal waters. Planning grants may be available from the Maine Coastal Program.

Mandatory Shoreland Zoning: Though the Mandatory Shoreland Zoning Act is not a planning program, it requires all municipalities to adopt and enforce mandatory shoreland zoning districts and regulations that protect existing access to the shore, consistent with state guidelines.

What is zoning and how can it be used as an incentive for protecting access?

Zoning is a system of developing a city or county plan in which various geographic areas (zones) are restricted to certain uses and development, such as water-dependent use zoning. By preventing certain uses, zoning can ensure that some land remains open for access or for the possibility of being acquired for access. Also, zoning can help prevent residential uses from competing with marine uses. Exception to zoning restrictions can be negotiated in exchange for a public good, such as a public boat ramp or path to the shore. More on zoning for coastal access.

What is the role of rights of way?

Rights-of-way provide the right for the public or designated individuals or groups to cross property to access another parcel. Public rights-of-way are sometimes lost over the course of generations of land ownership changes. Municipalities can create or rediscover rights-of-way to the coast in an effort to support commercial fishing and marine industries as well as recreational access.

    Creating Public Rights-of-Way: Municipalities may require that rights-of-way to public waters be established within a subdivision or development plan to serve the needs of residents of the subsequent development, but not the general public.
    Rediscovery of Public Rights-of-Way: Over time, towns lose track of the location, bounds, and uses of existing public rights of way or access points. Abutting landowners may encroach on a public way, or challenge people using the way. The Right-of-Way Rediscovery Program of the Maine Coastal Program provides small grants to municipalities to conduct the research needed to re-establish and defend existing public ways to coastal waters.

How do environmental regulations address coastal access issues?

Environmental regulations, such as habitat protection and stormwater runoff regulations can impose restrictions that affect access use. Regulations can be crafted to include access as a compatible use, but exclude other uses that might restrict access. These differ from zoning in that restrictions cannot be contracted out of or negotiated away. More on environmental regulation.

What kinds of ordinances can be used to address access needs?

Ordinances can be used in many ways to address access needs. For example, a boat ramp might have quiet hours overnight (a sound control ordinance), thereby protecting the rights of the nearby landowners by minimizing how the ramp can be used at night. Or a harbor can have a restriction on vessel size to prioritize access by a certain size boat. Light pollution ordinances can also affect access.

What tools can governments use to generate funding for access?

What are other regulatory options?

Special assessments, impact fees, and exactions can be used as possible monetary and non-monetary incentives for a desired form of land use and development. Properly applied, they can be used by a municipal government to help finance larger waterfront construction and improvement projects related to water-dependent uses, and to discourage (or derive public benefit from) other major development projects.

Special Assessments: In order to finance the construction of improvement of a large public facility, municipalities may impose charges on property owners who benefit from that facility. Typical examples include road improvements, sidewalk construction, street lighting, and sewer extensions, but they might also partially finance municipal wharf projects and other capital-intensive waterfront improvements.

Impact Fees: These are charges imposed on new development for the impact of the development on the public facilities that benefit them. Impact fees can be used to finance any type of public facility or service, such as a public oceanfront park, which will benefit the new development. However, impact fees can only be used to cover the percentage of the cost that is attributable to the new development.

Exactions: These can be used when a municipality requires a landowner seeking to develop her property to provide a public benefit that mitigates any harm caused by the development. This approach requires land developers to dedicate an interest in land (or pay a fee in lieu of such dedication) to mitigate the reduction of some public benefit that their development will cause. For an exaction to be imposed it must be logically connected, and roughly proportional to the negative impact that it is being required to offset.

Case Studies

See successful examples of planning and regulating for access:

What programs exist for towns to support coastal access?

Click here for more information.

Where can I find more information?

Marine Law Institute. 1988. North Atlantic Water Dependent Use Study, Volume 1: Managing the Shoreline for Water Dependent Uses: A Handbook of Legal Tools. Portland, ME: University of Southern Maine.

Maine State Planning Office. 1990. Planning and Implementing Public Shoreline Access. Maine Shore Access Public Access Series. Augusta, ME.

Tax-based Opportunities and Challenges for Working Waterfront Protection By Micheal Dixon, University of Maine School of Law, July 2010.

Working Waterfront Tax Strategies (PDF 216 KB) By Steven R. Gerlach, Esq., Bernstein Shur, Counselors At Law, September, 2010.