Agenda - Planning Commission - 09/03/2009

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government granted title to all submerged land three miles seaward from the low-water mark to states that border the Atlantic and Pacific oceans. The rights are slightly different for those states bordering the Gulf of Mexico. In addition, the states were granted ownership to all their bays and inland navigable waterways. (Non-navigable waterways are generally owned by private parties.) Fu~hermore, there are cases where states have sold navigable waters, thereby placing these waterways and their sub- merged lands under private ownership. Finally, a private landowner in one of the 13 original colonies may be able to show own- ership of submerged lands even without having acquired title from a state if he can establish that the property was granted to him or his predecessor in title by the crown in England. The Virgiriia Supreme Court recognized these rights in Commonwealth v. Morgan, 225 Va. 517 (1983), holding that private citizens can actu- ally own the riverbed if they can establish own- ership stemming from a king's grant. From this discussion, it becomes clear that a determina- tion of ownership of subaqueous land can be a complex matter and requires careful analysis. WHERE DOES THE LAND END AND THE WATER BEGIN? Another issue that must be considered in es- tablishing zoning regulations directed to the construction of piers and other structures over waterways concerns the area C?f property af- fected by tides (the land located between mean high tide and mean low tide). Many localities have setback requirements in their zoning code that restrict the building of any structure within a set distance of any adjoining property owner. However, when a boundary line is defined by a body of water, the locality must define where the setback commences. Furthermore, this definition should consider the effects of tidal action on the boundary. Inasmuch as navigable bodies of water are owned by the states, one must again look to various state laws to deter- mine the appropriate demarcation. For exam- ple, localities in some states will regulate con- struction to the mean low-water mark based derive their authority to implement zoning restrictions as part of their police powers. As a result, they almost universally have the authority to place reasonable restrictions on buildings and structures within their territory. As explained earlier, however, many waterways are actually owned by the states and could be considered outside the territorial area of a locality. This raises the issue of whether locali- If a private individual owns a tidal region of property, the state may have the right to place restrictions on its use under the Public Trust Doctrine. upon the position that the upland land owner owns the land between the high-tide mark and low-tide mark and that the state owns the property seaward of the low-tide mark. As a result, many localities will implementzoning requirements for upland areas as well as for the lands falling between the high-tide and low-tide marks. Note that, even if a private individual owns a tidal region of property, the state may have the right to place restrictions on its use under the Public Trust Doctrine. Under this doctrine, the general public is granted use of waterways for navigation, recreation, and similar uses. DO LOCALITIES HAVE THE AUTHORITY TO IMPLEMENT ZONING RESTRICTIONS ON STATE-OWNED PROPERTY? Some localities implement zoning regulations to restrict the construction of piers and other structures located over waterways. Localities ties have the authority to implement zoning restrictions that apply to property owned by the state. The answer can determineq by inves- tigating what powers the state has granted to local governments. For example, this issue was analyzed by the courts in the State of Maryland in Harbor Island Marina v. Calvert Co;, 286 Md. 303, 407 A.2d 738 (1979). The court ini- tially reasoned that navigable waters were not subject to zoning restrictions implemented by a local government inasmuch as these water- ways were owned by the state for the benefit of its citizens. However, the court went further in its analysis and reasoned that piers, wharves, landings, and other structures that are actu- ally attached to the land could be regulated. by local zoning because they actually become extensions ofthe land. The Michigan Supreme Court performed a similar analysis in Hess v. West Bloomfield Township, 439 Mich. 550 (1992), rulingthat a ZONINGPRACTICE 8.09 AMERICAN PLANNING ASSOCIATION Ipage 3 69