Planning and Regulating for Access
How do I control public 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 lobby 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.
What planning processes exist for securing access in waterfront towns?
Comprehensive planning: Under the State Planning Act of 1985 (N.J.S.A. 52-18A-196 et seq.), a New Jersey State Development and Redevelopment Plan is prepared, revised and readopted every three years to coordinate planning activities across the state to protect the environment and guide future growth. The Municipal Land Use Law (NJSA 40:55D et seq) guides municipalities to plan and zone for the appropriate use or development of lands, including preservation of open space and providing sufficient recreational areas.
More information can be found at New Jersey Department of Community Affairs, Office of Smart Growth.
Harbor planning: The New York/New Jersey Harbor Estuary and Delaware Estuary both have comprehensive conservation and management plans (CCMPs) to maintain healthy and productive ecosystems and address port/harbor and public access issues.
Shoreline Access Planning: Public access standards have been developed for all coastal development and for those participating in the Shore Protection Program or Green Acres Program. The Shore Protection Program protects property and infrastructure through projects including beach replenishment, bulkheads and jetties. The Green Acres Program purchases land to protect open space and integrates it into the state park system.
More information can be found at New Jersey Department of Environmental Protection Coastal Management Program, Shore Protection Program and Green Acres Program.
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.
How do environmental regulations address coastal access issues?
Environmental regulations, such as habitat protection and storm-water 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 regulations.
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 but 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 are other regulatory options?
Exactions can be used when a municipality requires a landowner seeking to develop his/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. 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.
Where can I find more information?
Public Access in New Jersey: The Public Trust Doctrine and Practical Steps to Enhance Public Access (NJDEP Coastal Management Program)