Agenda - Planning Commission - 09/03/2009

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CaterI~ << ~.Ibj ----- illustration. In fact, a strong argument exists that a regulatory taking can occur through excessive regulation of riparian rights. As part of its police powers to protect the public's health, safety, and general welfare, a locality may prohibit or promote particular contem- plated uses of land. As a result, the courts. have repeatedly upheld zoning and other land-use regulations that adversely affected real property values. However, when excessive regulation terminates property interests, it is possible to argue that a "taking" has occurred if the ordinance does not substantially ad- vance legitimate state interests. In the exam- . pie discussed above (where the lot lines are "angled in:' in the seaward direction), there is a strong argument that simply extending the lot lines into the water can arbitrarily termi~ nate riparian rights and, hence, no legitimate state interest is served by this approach. This being said, it can be very difficult .for a locality to get involved with the actual determination of riparian rights. As a result, it may not be practical for it to implement and . enforc~ an ordinance that requires a party to limit construction to that area within its riparian rights. The delineation of riparian rights can be a time-consuming and lengthy process. Furthermore, only a limited number of experts are qualified to make this deter- mination. Indeed, most localities are not in a position to do so. The burden of a riparian survey will most likely fall on the landowner seeking the permit. Should this survey be required for all permits seeking to build over the waterway or only for those where poten- I '------'" : -"-r-_ : I. I ~ I 1.1--- 1- ---L- I __-I,;; I --r.l- " I I , : I , I I I R~ t;~ p~ ~<U1<la1j I..hls G> Figure 2. The riparian rights for a cove or other irregularly shaped body of water can be determined by giving each surrounding landowner a pro-rata portion of the waterway's navigable channel. a riparian rights determination using the ap- portionment method for the navigable portion ofa creek and apie method forthe end of the creek. POTENTIAL CONFLICTS BETWEEN LOCAL ZONING AND RIPARIAN RIGHTS A poorly designed or poorly worded local zoninll' ordinance may result in an arbitrary termination of the riparian rights of a property oy.'ner. As noted, riparian rights determined under the apportionment methods are defined by allocating each owner of property abutting a waterway the pro-rata share of the navi- gable portion of a waterway. As a result, lines extended out into the waterway for this deter- mination are not necessarily extended in the same direction as boundary lines on the shore. If a zoning ordinance defines construction set- backs by extending the lot lines into the water in the same direction as those on the land, the result can be an arbitrary termination of the ri- parian rights. Arguably, a locality could enforce an ordinance that does this, but it makes little sense. This approach can arbitrarily "take" all riparian rights of a landowner, depending upon the direction of the lot lines on the shore.lf, for example, the last.two feet of property line turned suddenly "outward," the riparian rights would not be terminated. On the other hand, even if a landowner owned a large parcel with an extensive wa- terline and ancillary riparian rights, a sud- den turn of the property line "inward" at the water's edge could completely terminate the owner's riparian rights. See Figure 3 for an @ Figure 3. A zoning ordinance that extends building setback lines into the waterway can arbitrarily and prematurely terminate a landowner's riparian rights.. !;:%lmal:e of ~R~~ I I I I I I I I I I I I 1..01;1 . 1..01; 2 1..01; ~ 1..01; 4 1..oI;~ f ennlna/;.IOl'l of Rlparla'l a-ea5 b4 extendlnq 1000h~~ for ZOl'lIt1q 1 I I I I I I I I I CenI:erIlne of nav~rtlt4 5horellne 1..01; 6 ZONINGPRACTICE 8.09 AMERICAN PLANNING ASSOCIATION Ipage 5 7 1