Agenda - Planning Commission - 09/03/2009

Home

In jurisdictions where the prior appropriation doctrine is applied, ownersh ip of the real property adjoining the water body carries no rightto use the water. township had the authority to regulate dockage forboats and similar uses of the waterways. In Hess, the court noted thatthe authority granted by the state included the authority to regulate activities to promote the gel}eral welfare of the public and promote the character and natural resources of the township. The court went on to emphasize that regulation of riparian rights was necessary to ensure that the land uses were compatible with surrounding properties and to conselVe water resources. However, the crux of these determinations centered upon the grant of authority from the state, and, as a result, each locality must look carefully at its own state statutes and cases to determine its rights in this regard. This analY,sis typically applies as it relates to local government's ability to regulate houseboats, live-aboard sailboats, and similar vessels. RIPARIAN RIGHTS AND WATER RIGHTS UNDER PRIOR APPROPRIATION The riparian rights of a landowner or rights acquired through prior appropriation must also be considered in any zoning ordinance that regulates the construction of piers and other structures located over waterways. West of the Mississippi, most states apply rules of prior appropriation in determining water rights be- tween parties. Under this doctrine, all persons have the right to use the water for beneficial purposes; however, no party may'actually own the waterway. In essence, the first party to use the water is given superior position to those that come to use the water at a later date. An appropriation under this doctrine requires that the first user of water being used or diverted for a beneficial use be superior to subsequent par- ties who seek to gain rights to use the water. In contrast to riparian rights discussed below, the parties' rights are not predicated upon the ownership of land adjoining the waterway at issue. In fact, in jurisdictions where the prior appropriation doctrine is applied, ownership of the real property adjoifling the water body carries no right to use the water. Instead, ap- propriation is required to obtain rights. 70 Riparian rights, on the other hand, are rights to water use that are appurtenant to property that abuts a waterway. This doctrine is generally applied east of the Mississippi River. Riparian rights are derived from common law originating in England. In this respect, these rights were initially judge-made laws in the . United States: however, these rights are obvi- ously subject to modification through legisla- tive action. The riparian rights are derived by the landowner as a result of the ownership of property adjoining the water. A riparian owner has the right of access from the waterfront of ment method. For a circular lake, the riparian rights are generally defined in a pie-shaped division that will define each landowner's rights, as shown on Figure 1. As the shape of the waterway becomes more complex, so does the determination of the riparian rights. The apportionment method is generally re- quired for elongated lakes or creeks in the eastern United States. In essence, each per- son who owns property that abuts the water is entitled to his pro-rata proportion of the waterway's navigable channel. To make this determination, one must measure the length of the shoreline and determine the portion that each landowner has of the total shore- line. Next, the line of navigability of the chan- nel must be determined. This can be the most difficult and subjective part of the determina- tion because the centerline of navigability is often not well defined. Orice the line of navi- gability is determined, the length of the line of navigability is determined. Each landowner his property to the navigable part of the water- way, and also the right to use the soil under the water between his [and and the centerline of navigability of the watercourse. A riparian owner may generally erect whalVes, piers, or bulkheads for his own use, or the use of the public, subject to such rules and regulations as a state may impose for the public's protection. See Evelyn v. Commonwealth, 621 S.E.2d 120, 135 fya. App., 2005). However, courts have 'recognized that the landowner's right to use the land and the water below the watermark as a "valuable" property right. In most states, a property owner's ripar- ian rights are determined by an apportion- @ Rgure 1. The riparian rights for a roughly circular body of water can be determined by dividing up the the total area into pie-shaped sections. is then given the same proportion of the line ofnavigability that the owner has ofthe total proportion of shoreline. As a result, each landowner will be given a portion of the line of navigability. Lines 'can then be extended for each landowner from the shoreline to the line of navigability, and each will have the right to us~ the waterways and subterranean land within these lines in accordance with the rights prescribed to riparian owners. The lines drawn to establish the riparian boundary will be parallel, converge, or diverge as the length ofthe navigable water line happens to be equal with, or is shorter or longer than, the shoreline. Figure 2 shows an example of ZONINGPRACTICE 8.09 AMERICAN PlANNING ASSOCIATION Ipage 4