# Presentation: 592579

## Management of 

**Management of **
**Small  Docks and **
**Piers**

**Legal Authorities **
**and **
**Management Techniques**

**Notes:**
1. Greeting.
2. This discussion will review the various legal authorities and other techniques that can be used to implement small dock management.

## National Oceanic and Atmospheric Administration

**This presentation funded by the**
_**National Oceanic and Atmospheric Administration**_
**National Centers for Coastal Ocean Science**
- and
**The Office of Ocean and Coastal Resource Management**
**Materials prepared by Steve Bliven of Bliven & Sternack**

**Notes:**
This material was prepared, at the request of coastal managers, by two offices of the National Oceanic and Atmospheric Administration (NOAA); the National Centers for Coastal Ocean Science—a research branch—and the Office of Ocean and Coastal Resource Management—a management branch.

The slide show(s) and workbook were prepared by a contractor for these agencies–Steve Bliven of Bliven & Sternack in Massachusetts

## Management Through Regulatory Techniques

**Management Through Regulatory Techniques**

**Police Powers**
**Ownership**
**Public Trust Obligations**

**Notes:**
There are two general techniques for managing impacts from small docks:
Regulatory—permitting reviews, zoning and so on
Non-regulatory—acquisition for communal docks or ramps, public education, and the like
For the next few minutes we will be talking about regulatory techniques.
Regulatory capability at all levels of government come from two principal authorities.
Police powers are those established to protect public health, welfare, safety, and morals.  An example of this is the environmental review process and regulations that apply to small docks.
The rights of ownership. Through ownership, one is not bound by the public health, welfare, and safety criteria. Management through ownership can be much more expansive than through the police powers.
The coastal waters are “owned” by the public and held in trust by the states.  This requires that activities in those waters not deprive the citizens of their right to access and use of coastal waters. These are the Public Trust obligations of the states.
Depending on the state, some portion of the inter-tidal zone or the dry land above it are also subject to the Public Trust obligations.

## Management Through Regulatory Techniques

**Management Through Regulatory Techniques**

** ****Avoid**
** ****Minimize**
**Mitigate**

**Notes:**
[[ Speaker—”Hide” this slide if the BMP module is being presented at the same session.  The same information will be presented there. ]]
Management approaches generally follow the paradigm of 
Avoid—Minimize—Mitigate
Avoid adverse impacts to the resources.
Where this is not possible, minimize the impacts to the point where the impacts are acceptable to community standards as they are defined in statutes, ordinances and regulations.
Where the impacts cannot be minimized, and the benefits of the project outweigh the detriments, mitigation is sometimes allowed.  This involves a “payment” of sorts to make up for the impact.

## Management Through Regulatory Techniques

**Management Through Regulatory Techniques**

**State Options**

** ****Environmental Review**
** ****Public Trust Review**

**Local Options**

** ****Zoning**
** ****Sub-division Control**
** ****Building Codes**
** ****Local Environmental Ordinances**
** ****Harbormaster Oversight**

**Notes:**
In almost all states there are two forms of dock regulation
Regulations designed to protect environmental interests.  These are adopted under the police powers.
Regulations  to protect public trust obligations.  The standards for this sort of management flow from the rights of ownership and are designed to allow limited private use (such as docks) of public waters without detriment to public interests.
There are also a number of regulatory mechanisms at the local level.  These can, depending on the state, include:
Zoning, which can include zoning of the water surface (or watersheet) as well as land areas
Sub-division Control Ordinances
Building Codes
Local Environmental Protection Ordinances (which may include such interests as wetlands habitat or shellfish)
Local Harbormaster Oversight of floats and moorings  

## Management Through Regulatory Techniques

**Management Through Regulatory Techniques**

** ****Issue is not individual docks but ****	****	****increasing “sprawl”**
** ****Consider cumulative impacts**
** ****Consider full build-out**

**Notes:**
It is important to remember that the issue related to small dock management is generally not the single dock—rather it is the cumulative effects of many docks, the impacts from increasing “sprawl” along the waterfront.
So in developing and implementing regulatory management techniques, it is important to consider cumulative impacts, even when reviewing individual docks.  
The cumulative impacts to be considered should not only include existing structures.  To be most effective, management techniques should consider the impacts from a full build-out scenario, that is if all the docks that could be built are built.

## Management Through Regulatory Techniques

**Management Through Regulatory Techniques**

**Planning and Zoning Techniques**

** ****Base Zoning on Comprehensive Plan**
** ****Planning/Zoning should:**
** ****Have well-defined boundaries**
** ****Be based on community values**
** ****Be reviewed and updated regularly**

**Notes:**
In establishing zoning standards for small docks, local officials should consider several aspects of the process.
Base the dock-related zoning on a comprehensive plan.  This would look at a wide range of resources, potential impacts from a full build-out of docks, and community values and concerns.
The planning area or resulting zoning should have well-defined boundaries—boundaries that can be justified based on the need to manage impacts and also to be easily understood by the public.  Clear boundaries help make the regulatory process predictable.
The standards developed as part of the planning and zoning effort need to reflect values generally held by the community.
Make sure that the plan is fluid: that is, it can be reviewed and updated regularly.

## Management Through Regulatory Techniques

**Management Through Regulatory Techniques**

**Types of Plans:**

** ****Special Area Management Plans **
** ****Local CZM Plans**
** ****Harbor Management Plans**
** ****Regional Plans**

**Notes:**
There are a number of existing types of planning frameworks that could be used for the development of a dock management plan. Many of these lead directly to implementation programs.  These include:
Special Area Management Plans.  These may be done as part of a state coastal zone management program or under a state designation of some sort (e.g., Area of Critical Environmental Concern, Area for Preservation and Restoration, Critical Wildlife Habitat).
Local Coastal Zone Management Plans.  Some states provide for the preparation of local Coastal Zone Management Plans.  Upon approval by the state coastal management program, these plans ensure consistency in permitting decisions between the local, state, and federal regulatory agencies.
Harbor Management Plans.  These can cover a wide range of topics but provide a suitable framework under which a dock management plan can be produced. 
Regional Plans.  This may be done through the auspices of a regional planning agency, or inter-municipal agreement.  This sort of plan typically involves more than one community.

## Management Through Regulatory Techniques

**Management Through Regulatory Techniques**

**Plans should:**

** ****Identify areas where dock growth is allowed and**
**     ****where it should be limited.**
** ****Encourage community docks.**
** ****Promote marinas as **
**     ****alternatives to individual **
**     ****docks.**
** ****Consider regulating **
**     ****groups of docks as **
**     ****marinas.**

**Notes:**
Items that should be considered in these plans are ways to focus dock development; getting away from “waterfront sprawl”.  Some steps for consideration include:
Identifying areas where no further dock development should occur and, conversely, areas where additional dock growth would be accepted or even encouraged.
Encouraging docks for multiple users.  These could include community docks, marinas, or yacht clubs.  Multiple user docks provides increased access to the water but focuses the activity into specific sites rather than a broadly dispersed number of docks.
Groups of private docks in a body of water can have the same impacts as a marina which often have more stringent regulations. Consider applying the standards for marinas to a grouping of docks..

## Management Through Regulatory Techniques

**Management Through Regulatory Techniques**

**Lloyd Harbor, NY Case Study**

**Zoning Overlay District**

**“****Generally a municipal zoning ordinance is**
**	****presumed to be valid and will not be **
**	****held unconstitutional if its wisdom is**
**	****at least fairly debatable and it bears a**
**	****rational relationship to a permissible**
**	****state objective.”**

**Notes:**
As an example of a Zoning Overlay District based on a comprehensive plan, consider Lloyd Harbor, NY.  The Village developed an Overlay District after an extensive planning process.  Part of the District Regulations called for a maximum dock length of 75 feet.  Subsequently an applicant proposed building a dock 115 feet long.  The application was denied based on the zoning standards.
The applicant appealed  to the courts, contending that the standards equated to a taking of his riparian rights, was not based on a comprehensive plan and was arbitrary and capricious.
The judge in the matter denied the appeal and made the following statement: Generally a municipal zoning ordinance is presumed to be valid and will not be held unconstitutional if its wisdom is AT LEAST FAIRLY DEBATABLE and it BEARS A RATIONAL RELATIONSHIP TO A PERMISSIBLE STATE OBJECTIVE. [[Emphasis added]]  This provides a test for any dock-related zoning ordinance—or other regulation.  Is it at least fairly debatable, and does it bear a rational relationship to a permissible state objective?
Incidentally, the judge also found that a dock was not necessarily considered a riparian right.  That right only guarantees access to adjacent waters, not a structure.  The judge noted that a dinghy launch from shore met the test for riparian rights.

## Management Through Regulatory Techniques

**Management Through Regulatory Techniques**

**Legal Challenges**
**	****and How to Meet Them**

** ****Exceeding Authority**
** ****Violation of Legal Processes**
** ****Arbitrary and Capricious**
** ****Unconstitutional Takings**

**Notes:**
Local ordinances are often challenged.  Several of the issues commonly raised include:
The ordinance exceeds the authority of the statutory authority.  In developing an ordinance or supporting regulations be sure to stay within the boundaries of any enabling legislation.
The ordinance or decision violated legal processes.  This refers to the procedural activities involved in producing the ordinance or a decision under it.  Things such as failing to notify affected parties as required, not conforming to mandated timelines, or not having a quorum for a vote can lead to a challenge of this type.
Arbitrary and Capricious.  A challenge in this area suggests that the decision-making body was not adhering to its mandated statutory or regulatory guidelines and standards.  Ensure that all formal decisions are clearly linked to language in the implementing authorities.
Takings.  This challenge suggests that the decision violates the terms of the Fifth Amendment of the US Constitution by depriving private property of reasonable uses.  The challenge of environmental permitting decisions as takings is a developing area of legal decisions  but, generally if there is a rational link to the police powers (protecting public health, welfare, or safety) and the property owner retains some reasonable use, the ordinance or decision can withstand this challenge.

## Management Through 

**Management Through **
**	****Non- Regulatory Techniques**

**Mechanisms include: **

** ****Public Education**
** ****Acquisition for communal docks or ramps**
** ****Incentives/Disincentives**
** ****Funding or taxes**
** ****Permitting**
** ****Social pressures**

**Notes:**
There are also an number of non-regulatory techniques available for dock management.  
Public education.  An informed public is more apt to recognize the value of a management program and voluntarily comply.  
Land can be acquired for construction of communal docks or public boat ramps or landings to be used in lieu of private docks.
There are a number of possible incentives or disincentives.  These may include:
Funding or tax incentives: funding or technical assistance can be provide to neighborhood groups or other entities to speed the development of communal docks.  Conversely, property value tax increases for docks may act as  a disincentive.
Permitting processes may be a disincentive due to costs and time requirements.  A speedier process for communal docks of a pre-specified design might act as an incentive for this sort of development.
Don’t underestimate the strength of social pressure to ensure conformity to a dock management plan.  If most of the neighbors agree to not build docks, they are apt to apply some level of social pressure against someone who proposes to construct one.

## Case Study - Pleasant Bay (MA)

**Case Study - Pleasant Bay (MA)**

**Notes:**
Lets look a couple of case studies.  
There are a number of excellent examples of special area management around the country.  Examples are found in the Ashley River, SC; Blakely Harbor in Washington State; and the Connecticut River. 
The two case studies we will discuss here are from similar geographic and environmental systems and, being in the same state, were working within the same legal structure.  They also had similar results in that they identified “build” and “no build” zones within their respective harbors.  What is interesting to this discussion is how differing community values were used in developing the plan.  
Pleasant Bay is on Cape Cod in Massachusetts. It is bordered by four towns.  A designation of the bay as an Area of Critical Environmental Concern by the state established a moratorium on dock construction until a resource management plan had been approved.
The communities prepared a plan that evaluated 26 sub-units of the bay for their sensitivity for dock development.  They used a matrix that rated various categories that were important to the  members of the community.

## Case Study - Pleasant Bay (MA)

**Case Study - Pleasant Bay (MA)**

**Developed Matrix with Categories Including:**

**Nature of Water Body**
**Dock Ratio**
**Shellfish Habitat**
**Width of Fringing Marsh**
**Abundance of SAV**
**Water Depth within 150 Feet of Shore**
**Moorings within 150 Feet**
**Navigation Channel within 500 Feet**
**Recreational Use**

**Notes:**
These are the 9 categories evaluated.  As you can see, the categories range from protecting natural resources (shellfish habitat, marsh, SAV), to protecting navigational interests (water depth, moorings, navigation channels), to recreational use.
Each had a method to generate  numerical scores based on presence, absence and/or quality of the resources.  These scores were added and a score for each geographical subunit of the bay was established.  

## Case Study - Pleasant Bay (MA)

**Case Study - Pleasant Bay (MA)**

** ****Prohibited docks in**
**    ****some areas**
** ****Established common**
**    ****standards among four**
**    ****towns for management.**

**Notes:**
Following a review of these rankings, the four communities joined in prohibiting docks from the most sensitive areas and regulating construction in others  in a common manner. 
The dark portions on the map represent the areas where docks are not permitted.
A list of the standards used by the towns may be found in Appendix 1 of the Management Techniques section of the workbook. 

## Case Study - Marion, MA

**Case Study - Marion, MA**

**Notes:**
A second case study approached dock management from a somewhat different direction.
The people of Marion, Massachusetts expressed a concern that the growth in the number of private docks would affect the Town’s shellfish resources—both by disrupting critical habitat and by making some shellfishing areas difficult or impossible to reach.
Their planning effort followed a similar process as that in Pleasant Bay but varied greatly in the details of the matrix—reflecting the differences in community values for the harbor. 

## Case Study - Marion, MA

**Case Study - Marion, MA**

**Developed Matrix with Categories Including:**

**SAV beds**
**Softshell Clam Habitat**
**Hardshell Clam Habitat**
**Oyster Habitat**
**Bay Scallop Habitat**
**Razor Clam Habitat**
**Endangered Species Habitat**

**Notes:**
With one exception, all of the categories evaluated in Marion are directly related to the  presence or absence of shellfish or submerged aquatic vegetation.   The one exception is related to habitat of the endangered Diamondback Terrapin. 
As with Pleasant Bay, the planning group assigned numerical values to each category to produce an over all rating for various sub-sections of the harbor.  A threshold number was defined to separate areas where docks would be prohibited from those where construction would be allowed.  
Proximity to swimming beaches was considered but not as a evaluated category—instead it was used as sort of a “tie-breaker” for areas that were near the threshold of build/no build.

## Draft No Dock

**Graphic courtesy Buzzards Bay Program**

**Draft No Dock**
**Construction**
**Zone**** **

**No dock areas**

**Notes:**
The results of the planning process defined the areas in red as places where docks should not be built.  As of early 2005, this moratorium has not been put into place, pending action of a Town Meeting.
Comparing the matrices developed in Marion and Pleasant Bay, it is clear that even though communities may value resources and waterway uses differently, they can all use planning methods to effectively manage docks and piers based on their community values. 
The processes were similar as were the outcomes—in that both plans defined “build” and “no build” zones, but the premises on which they were developed differed significantly.

## Slide 19