Agenda - Planning Commission - 09/03/2009

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Local Zoning and Water Rights By Scott L. Reichle In 2001, as a result ofa dispute as to whether a neighbor had the right to build a pier and use the water on Watauga Lake in Tennessee, a man took a chainsaw onto the neighbor's property, cut off the stairway to the neighbor's dock, and then towed the dock away. In 2004, in Severn a Park, Maryland, three residents wished to build piers extending into a cove adjoining their properties. A local. association that owned most of the land sur- rounding the cove objected to the permits. Four years later, in 2008, the dispute had not ended. More than 100 people attended the permitting meeting in 2008; most of them op- posed the pier construction. Two of the owners seeking the permits characterized themselves as "outcasts" in the neighborhood as a result of the ongoing dispute. These types of heated disputes between neighbors over riparian rights are so common in coastal areas that one regulating agency has called them "dock wars." These conflicts em- phasize the importance of zoning ordinances in attempting to regulate the use of waterways in a way that balances the rights of land own- ers with those of neighbors and the public at large. Local zoning officials are accustomed to finding themselves involved in heated disputes between neighbors, but issues related to the construction of piers and other structures on . waterways often present unique and challeng- ing questions, Some of the issues that must be consid- ered include whether a locality has the author- ity to implement and enforce zoning standards on navigable and non-navigable waterways. Does state ownership of the waterway or ad- joining land affect the analysis? Where does the land end and the water begin for zoning purposes? How do a landowner's riparian rights fit into the picture, and what is their im- pact on zoning regulations? OWNERSHIP OF SUBMERGED LANDS In order to analyze these issues. one must first consider who owns the waterways and who has the authority to regulate them. The federal gov- ernment claims 12 nautical miles of submerged land seaward of the coastline as its "territo- rial waters." However, in accordance with the Submerged Lands Act, the United States gov- ernment gave certain rights to states located along the coastline. Under this act, signed by President Eisenhower in 1953; the federal 68 ZONINGPRACTICE 8.09 AMERICAN PLANNING ASSOCIATION Ipage 2