Title:توسعه سواحل و واقعیت های نظارتی

۲۰۱۱-۰۲-۱۸ ارائه دهندگان: جان کیسی این وب‌کست فقط برای مشاهده در دسترس است، برای اعتبارات AICP CM قابل استفاده نیست. این ارائه به برنامه ریزان یک دید کلی از چارچوب نظارتی حاکم بر توسعه ساحلی، و درک منابع طبیعی و مفاهیم حقوق مالکیت و نگرانی های منحصر به فرد برای املاک ساحلی ارائه می دهد. این برنامه آخرین موضوعات در مجوزهای ساحلی و ملاحظات مربوط به فعالیت های توسعه در منطقه ساحلی را پوشش می دهد، از جمله: خانه های ساحلی، توسعه تجاری و توسعه مجدد. تغییر اقلیم؛ حقوق ساحلی؛ اسکله ها و دیوارهای دریایی؛ و تالاب جزر و مد. ارائه دهندگان در مورد صلاحیت و اهداف نظارتی برنامه ملی بیمه سیل، سپاه مهندسین ارتش، CT DEP و شهرداری ها بحث خواهند کرد. همچنین تکنیک هایی برای حفاظت از نماها و حفظ منابع طبیعی ارائه خواهد شد.

قسمتي از متن فيلم: Hello my name is cody price and i just want to welcome everyone it is now one o’clock so we’ll begin our presentation shortly today on february 18th we’ll have a presentation on coastal development and regulatory realities given by john casey for help during today’s webcast please

Feel free to type your questions in the chat box found in the webinar toolbar to the right of your screen or call 1-800-263-6317 for content questions please feel free to type those in the questions box and we’ll be able to answer those at the end of the presentation

During the question and answer session here’s a list of our participating chapters divisions and universities and i would like to send out a personal thank you to the connecticut chapter for sponsoring today’s event here’s a list of our upcoming webcast on next wednesday we’ll have a a continuation of our series on the

Aging population so if you want to check those out there is one on the developing aging friendly communities and then we’ll have another one on february 25th on a framework for assessing aging in the place technologies i just want to point out as well is just that we recently added the march 11th

Urban retail webinar so if you’re interested in that please be sure to sign up and you’ll be able to find a complete listing for our 2011 webcast schedule at the following address at www.utah.apa.org webcast htm and so you will be able to find a complete listing and if you find ones that

Interest you feel free to register for those events to log cm credit for attending today’s session you’ll need to go to www.planning.org cm select activities by day and then select today’s date friday february 18th and then select coastal development and regulatory realities and again this is already up for one and

A half cm credits so you can go and attain those after the session today and then afterwards we are recording today’s session so you’ll be able to find a video recording and a pdf of today’s presentation at www.utah.apa.org and then this should be up by monday and at this time i’m going to

Introduce our speaker for today john casey is an attorney with robertson and cool llp a law firm with over 225 attorneys and nine offices throughout the northeast and florida john has been with the firm since 2002 and practices out of its new london hartford and providence offices john’s practice covers all aspects of

Land use law with a particular emphasis on coastal management development and permitting littoral and riparian water rights and litigation related to land use permitting and property rights john began his legal career as a lieutenant lieutenant and the u.s navy judge advocate general’s corpse fulfilling various legal duties while

Stationed at the naval submarine base in groton after completing his military service but before joining robinson and cool he worked for a small firm in new london john is a member of the board of directors executive committee and audit committee for connecticut legal services a private non-profit civil law firm

Dedicated to providing access to justice as a means of improving the lives of low income people throughout connecticut john is also a volunteer with lawyers for children america providing representation to child victims and abuse and neglect proceedings the president of the board of directors of the connecticut cruise ship task force a

Non-profit entity that promotes and coordinates cruise ship visits to ports within the state he’s also a member of the board of the mystic and nunec library and a member of the board of the new london education foundation which is a non-profit organization that provides grants for educational programs in new london

John also coaches youth lacrosse for the roton mystic lacrosse association john earned his jd summa laude from american university’s washington college of law in washington dc and his bachelor of arts in economics from the university of connecticut now i’d like to hand it over to john casey who will be giving a

Presentation for today thank you cody and welcome everyone i i wonder how i have any time to to practice law when i hear that list of all the other things i do but um as cody said my uh my primary practice area here in connecticut is is coastal development

And i’m happy to um to to be with you all today with you in in spirit over the internet um to talk about um the sort of permitting regime and the the statutes that that control coastal permitting also to talk about some of the the legal issues that arise in coastal

Development issues or coastal management issues and also talk about some recent developments and some examples of things that come up which i find to be a good way to understand the issues okay i guess we’ll just start and i for a bunch of planners you all know why

It’s important to regulate uses and but i wanted to address you know why specifically on the coast is it important and the first issue is we want to protect the environment the bullet here shows that in connecticut it’s estimated that 90 of tidal wetlands have been lost due to filling dredging and similar

Activities now most of these losses have taken place decades and decades ago in fact connecticut is is very good um in a recent report i read from the national um oceanic and atmospheric administration uh connecticut has only seen a loss of one acre of thailand uh title wetlands

In the past few years per year so that’s an excellent track record of protecting these important resources which serve as you probably know as big sponges to to filter out pollutants as well as to provide a flood protection from the incoming waves and the other side of it from a zoning

Point of view is to protect life and property as we’re close to the coastline the fema rules come into effect about floodplain management and flood zone management and a recent estimate is that those policies and regulations have prevented over 1.1 billion dollars annually in flood damage so now who regulates

Who do you have to deal with and it’s it’s the entire spectrum from the federal agencies state agencies and local agencies and as an example of a project that i’ve recently been involved with for a residential dock in the fairfield county section of connecticut the the applicant applied to the state

Which then forwards the application to the army corps who then forwards it to the federal resource agencies epa noaa and nymphs nf is that’s national marine fisheries services the fisheries service and epa had a concern about the design of the the structure um it was proposed to have a

Fixed pier with a gangway to a floating dock they were concerned about the impacts of a floating dock on the benthic environment the mud that’s under the water and so there was a process of dealing with federal agencies because the army corps who’s the permitting agency wouldn’t sign off until the

Resource agencies were satisfied and then we had to go to back to the state agency the environmental in connecticut’s department of environmental protection who generally was okay with the the proposal but didn’t didn’t want to issue a permit if there wasn’t going to be a federal permit the process here in connecticut allowed

For a public hearing because we were in title wetlands which some neighbors petitioned for so we had a complete administrative hearing we then after we got through that process and were issued the state permit we just on tuesday had to go to the local zoning commission which has jurisdiction over

Those portions of the dock that are above the mean high wall waters and town property so it can be a very complex permitting process and you may also have to depending on your state or your town deal with the harbor management commission a shellfish commission connecticut i skipped right over if

There’s any shellfish resources you have to deal with the bureau of aquaculture and the pressure it is so highly regulated because there’s a lot of pressure on the coast um and i’ll try to get through these pretty quickly 53 of the population inc in the state in the nation live in

۱۷ of all the land area which is 673 coastal counties which is an increase of 333 million people since 1980. and to show you how the development here is in connecticut red on this slide red represents more intense development and you can just see along the major along the shore

And the major waterway which is the connecticut river which runs from the center of the state down and then slightly to the southeast the connecticut river and then in the south east corner little red patches the new london groton area i’ll have to correct cody on this pronunciation of my

Hometown it’s groton connecticut so you can see where people are are are living and then another example because i do think pictures um are worth a thousand words this is an aerial photo from 1934 of the um westport of westport connecticut the saugatuck river

And you can see if you just look at the edges of the shoreline it’s it’s it’s it’s natural for the most part you see a few features there’s a canal in the bottom right hand corner you can see the roads you can see the land upland divided but the coastline meanders

There’s tidal wetlands there’s the tidal creeks if fast forward i’m sorry there we go to the same area today and you can see how the coastline is just completely changed it’s it’s a uniform um line um it’s there’s been fill in the wetlands there’s been a lot of houses placed there um and

This you know is the big change and protecting what remaining resources that we have is the the reason we have such uh such tight regulations okay but we are dealing with as you would in any situation private ownership um in connecticut i’ll talk about um private ownership

Uh starts and end at the mean high water line which is marked there in red a couple other lines of interest that you have to deal with unlike when you’re just dealing with an upland property where you have a boundary which is pretty well established and understood as to

Where it is where the right-of-way line is on a street at the shore you have a number of lines and resources that you have to deal with and each of them impact how things are regulated but we’ll start with private ownerships the mean high water line when you’re at the

Shore you have to deal with the public trust doctrine which um covers starts in connecticut at that mean high water line and it’s this area in red on on the slide once you get below mean high water that’s where the state has an interest in protecting the resources and the

Interests of this of the public to use the water and use the resources and just i have a note there that state title to submerged lands goes out three miles under the submerged land act so the state regulates that area which if you’re in new england and you’re following any of

These proposals for offshore wind farms that will determine whether the the turbines will be in state waters or federal waters and just about public trust because it does sort of overlay how the state has to approach these it’s a very ancient doctrine it goes back to roman times where the concept was that

The sovereign would hold in trust and control for the benefit of the of the empire really the resources that were necessary to the public commerce which would be access to tidelands access to water for navigation and rights to the shoreline and waters for phishing these rights were incorporated into english common law

And then brought over to the colonies and are made part of american common law these rights were recognized one of the more famous cases is the illinois central case this is where the state of connecticut tried to convey title to lands underneath lake michigan and the supreme court said they couldn’t do that

Because they were abdicating or their rights to their public trust rights so this is a very significant concept i guess and an obligation of the state when it comes to regulating along the shoreline of course the public trust applies to other things but we’ll focus on how it applies to the shoreline

In connecticut just quickly uh just so you know that this does apply you know at the state level here’s what the supreme court in connecticut said just as recently as 1994 that the state as a representative public is the owner of all lands between high and low water

Marks upon navigable waters and because the state owns that land when it comes to permits along the shore that’s a property interest and a obligation that has to be considered overlaid on that are the private property rights of the upland property owners they’re known as littoral rights sometimes referred to as

Riparian rights um and in every case in connecticut the court always puts a footnote saying they’re used interchangeably but the the actual term is littoral for navigable and tidal waters under connecticut law the waterfront property owner has certain exclusive rights to use the water that fronts his property and

And where his littoral boundaries are based on the the shape of the shoreline and the intersection of the property boundaries with the mean high water line going back to what i said earlier that line being the extent of private property ownership the thing about littoral rights and littoral boundary lines is they don’t

Really exist it’s not like the survey that we’re all used to even if you’re you’ve got property that goes back 100 years with boundary markers you know by the old oak tree and along the rock wall um in in 99 of the matters that i’ve been involved with you really don’t have

Littoral boundaries set out now neighboring property owners can establish them by agreement or they can go to court and ask a court to establish them based on some principles and then once you have the you have those rights my last bullet there is that they are subject to regulation but

The question is how much and a few quick examples this is always a fun exercise i’ve been involved in a few littoral boundary cases and how you establish where your rights are depends on as i said the shape of the shoreline and the intersection of the private property with the um

With the high water mark so you have to decide if you’re dealing with a straight shoreline where you draw this line the sort of dotted dashed line which is in the water take my word for it you draw that line along the shore and then you draw nine

At 90 degree angles you draw back to the intersection of the side yard boundaries and and that’s your property that’s your littoral boundary area and your boundary your littoral boundary area or your littoral area is no bigger than the length of the shoreline the different funny uh opinions about where

The boundaries are because it depends because if someone could call this a straight shoreline they can call it a curved convex shoreline here’s another curved convex shoreline you can call it a concave curve shoreline it just depends on the shoreline features so i’ll move on so how do we get how do we

Get regulation at the the um along the coast um while states had coastal um permitting statutes before 1972 um it was really the the passage of the coastal zone managing act by congress in 1972 that that focused on coastal zone management and what it is it’s a voluntary partnership between the federal government

And the u.s coastal states and territories 34 of 35 states and five island territories have developed coastal zone management programs illinois is the last one working on obtaining approval for its program they it’s been very successful it protects more than 99 of the nations 95 331 miles of ocean and great lakes shoreline

And the purpose is to focus on balancing um which really are as i write it here but competing land and water uses while protecting sensitive coastal resources what what the federal government is looking for in coastal zone management programs are those that would result in enforceable policies to protect the coastal resources

And then there’s this process called federal consistency any federal action has to be consistent with a state’s federally approved coastal management program and those are any federal actions that have a reasonably foreseeable effect on land or water use or natural resource in the coastal zone and one of those federal actions

They’re broken down into four areas federal agency activities those are just like it sounds anything done by a federal agency which include fishery plans national morning fisheries service naval exercises disposal of federal land an army corps project like a breakwater beach renourishment or oil and gas lease leases by

I guess what used to be the mms federal license or permit activities this is where you run into this for the most part if the army corps is going to grant a permit to an individual or an entity for a non-federal entity then that permit decision has to be consistent with the state’s

Coastal management program and this is where this where you run into this mostly in the permitting world the last two outer continental shelf plans and federal assistance to state and local government so since we’re talking about permitting hero i’m gonna focus on the second one so this comes up mainly when you’re

Trying to get an army corps permit and the the course regulatory jurisdiction is under two primary statutes section 10 of the rivers and harbor act and section 404 of the clean water act and here’s a little going with the same diagram so you see what we’re talking about and section 10

Jurisdiction is the mean high water line okay um the the process um by which army corps permits are our issue is primarily through at least in new england the programmatic general permits which are issued state by state and they cover both coastal inland wetland activities um structures dredging filling and disposal

Of dredge material and just so you get a sense section 10 i’ll go back of the rivers and harbor acts deals with structures and encroachments into navigable waters and fill dredging of um of uh of any navigable waterway and section 404 deals with the in the coastal realm um

A lot most of the times disposal of dredged materials drilling down then to connecticut as our example connecticut has two permitting statutes that it administers at the state level the first is called the structures dredging and phil act and where the jurisdiction is the high tide line and the title wetlands act and

Which are title wetlands areas the the juris the definition is there um but in general it’s any title wetlands area or area that is capable of growing tidal wetlands plants and in connecticut the permitting under these statutes is by the connecticut department of environmental protection these programs these statutes are

What’s known as the enforceable policies under the state’s um coastal zone management act and when you’re talking going back to concept i mentioned earlier federal consistency um federal permits have to be consistent with um the the permitting under these acts by the state in order to obtain a federal permit and

The administration of these two acts are specifically part of connecticut’s coastal zone management program the final piece of connecticut’s coastal management policies is what’s known as the coastal management act which is quite lengthy um but it regulates all the development with within an area defined as the coastal boundary which is

Anywhere within 100 year flood boundary or a thousand foot setback measured from mean high water or the inland boundary of really any coastal resource and so whichever whichever those two numbers is the furthest inland but unlike permits for structures such as a dock or dredging or any activities in title wetlands

Which are exclusively under the jurisdiction of the state dep many permits under the coastal management act are issued by the 36 separate coastal municipalities here in connecticut excuse me um and it’s a it’s an integrated process between the the local planning and zoning staff and the local planning and zoning commission

And the dep because anyone who’s proposing any activity within the coastal boundary required to file what’s called a coastal site plan and coastal site plans are required for just about any activity a subdivision a special permit or special exception a variance and let’s see and any municipal project

Referred to a local planning commission has to be considered there are some exceptions to projects or activities that may not need a coastal site plan really minor activities um but for the most part if you’re if you’re gonna if you’re in the coastal boundary you’re gonna be subject to higher

Scrutiny your project isn’t gonna be just reviewed by the commission but it’s going to be sent to dep for a review and a report on consistency with the coastal management policies and just go into this graphic again while uh the mean high water line is further down the beach connecticut

Regulates under the structures dredging the fill act to the high tie line so there’s an overlap in jurisdiction between local permitting which goes to mean high water and the high tide line and continuing along since i’ve been talking so long start looking at some pictures now

The thing about the high tide line is it’s not it’s just defined under statute as the intersection uh the um highest reach of the tide with the the upland i’m paraphrasing there and and contains a number of ways that it can be determined one of the ways is to look at a rack

Line and here’s a beach down in the caribbean that a colleague sent to me where you can see all the different rack lines they’re numbered one through six um which shows that you know sometimes trouble with with deciding where the the high tide line is

And this is again just to keep in mind this is on a nice gently sloping beach in the caribbean sandy in connecticut our shoreline looks a little different and it looks a lot of times more like this which is an area of tidal wetlands upland old phil you can see some boulders there

On the left you see a rack deposit that’s marked out there and an estimation of the mean high water these numbers all can be determined by by surveyors using title data and whatnot but just just to show you that um it’s not always clear where the the dep’s jurisdiction begins and ends and

That’s important uh if you’re trying to stay out of their jurisdiction or you thought you stayed out of their jurisdiction and i don’t know if um and i you know i’m involved in a couple of matters where we’re fighting over where the high tide line is exactly quickly with uh connecticut title

Wetlands jurisdiction uh the the earlier side said it’s it’s all title wetlands or one foot above uh local extreme high water which isn’t really defined anywhere but um i grade out the area on the left saying just to indicate that the title wetlands jurisdiction in connecticut um

Really can extend inland as far as the wetlands go or the the possibility of growing wetland species exists now the one good thing about connecticut is well there’s a lot of good things about connecticut but um just in terms of jurisdiction over tidal wetlands versus inland wetlands there is a very clear

Demarcation and it is the state who regulates tidal wetland activities and not the not the local at least here in connecticut inland wetlands are regulated by local inland wetlands commissions turning to the other state i work in to give you another perspective connecticut has the two acts i mentioned

And they have one set of regulations for their um title wetlands statute but they have no regulations for their um structures and dredging which sometimes is a problem and sometimes is it i guess it’s nice not having regulations but sometimes it’d be nice to to know exactly what you’re dealing with

Rhode island on the other hand has a very extensive coastal management program with numerous documents um covering many different regulatory requirements they’re they’re the program is run by what’s called the coastal resources management council there’s a site to the statute there that that created it their regula extends

From the territorial sea limit mentioned earlier three miles offshore to 200 feet inland from any coastal feature and as i mentioned it’s a high regulated coastal management program here’s a little picture this comes from one of crmc’s documents it shows that’s the coastline of rhode island on the left you start with the

Eastern border with connecticut has a three mile state limit and a three mile limit around that island in the middle is block island for those not familiar the rhode islands regulatory jurisdiction is a little different and and um a little i won’t say cutting edge because they’ve been doing it for so

Long now but what they did was they they categorized all the waters of the state and all the shorelines into six water types based upon resources uses potential uses and and here are the here are the six you have conservation areas low intensity use high intensity boating multi-purpose commercial recreational harbors and industrial

Waterfronts and what they’ve done is they have actually mapped the coast this is this is the map for the southwestern corner of the state near watch hill and westerly and you can see the numbers in red indicate the type of water that that we’re dealing with and depending

On the type of water is what is permitted at the you know from the upland or in the water the next step in rhode island after water type is they look at coastal features and these include coastal beaches dunes barrier islands coastal wetlands cliffs plus rocky shores man-made shoreline and again the um

This feature uh the is regulated not just itself but 20 feet in from its furthest inland border which gives the crmc you know a very wide purview over activities and they can and do establish setbacks from activities near waters and coastal features actually i’m going to continue with items that trigger rhode island

Regulatory jurisdiction they’ve also included cultural features freshwater wetlands and activities which occur in watersheds poorly flushed estuaries with the idea that they want to protect these and enhance those estuaries they don’t want anything to make them any worse and then there’s a whole list of statewide activities

That they get to say get a say in because of the possibility of those activities impacting the coast and tidal waters rhode island being such a small state with an extensive shoreline everything is really you’re never very far from the ocean and it is called the ocean state

So for each of those um coastal features i spoke about there’s a series of regulations about what you can and can’t do then you overlay that with the water types which tells you what you can and can’t do then you also have to consider uh a number of special area management plans

That the um the state has implemented and and this is the list of of eight plans um and so if you’re project is going to be in any of these areas you have to review the plan which again are fairly lengthy and specific about what can uh what can happen

Or what they want to see what the policies are all the plans and the regulations um have provisions there they really are like zoning regulations they have provisions for special exceptions they have provisions for variances uh and then provisions for appeals um if um you know if the applicant isn’t

Successful or if a neighbor wants to appeal an approval it’s it’s really a um ink process difficult but well organized here’s a map of the special area management plan and then just as an example just so you see what you’re you’re dealing with um this is again along the south shore

Of rhode island um this points out all the regulated areas whether it’s coastal feature it doesn’t have the water types but it has the the boundary between the crmc jurisdiction versus inland wetlands as you get north of that but then you also have to consider the assault pond special area

Management plan you have fresh water inlands you have rocky shores a developed barrier a moderately developed barrier all these things you need to consider when when you come to permitting in rhode island okay when i started um we were talking about i mentioned that there’s the sort of coastal permitting resource protection

And then there’s also the fema jurisdiction which are implemented through fema’s published flood plain management regulations they’re in the code federal regulations and they require each municipality if you’re in the flood zone to pass and maintain zoning regulations to remain part of the flood insurance program which is very important some particular

Then these are these regulations provide construction rules for construction within the the flood zones and depending on the activity and just as an example i put here in high hazard areas v zones all new construction must be located waterward of the reach of the mean high tide line and

I’m trying to keep a theme so you get a picture these are these lines on the shore and depending on what you’re doing you’ve got to consider where the line is so i want to just put in here how fema they’re they’re talking about the mean high tide line

Now municipalities can implement and some do more stringent requirements than those that are contained or noted as required in the code of federal regulations for example there’s one municipality here in connecticut that implemented a 100 foot setback from coastal features which depending on the property can really

You know inhibit the ability to to do anything on the property there are variance procedures in floodplain management regulations but you know the concept being you don’t want to encourage people to build where they’re likely to be flooded and they get penalized through the flood insurance program by higher

Premiums if they are in more flood flown prone areas so under fema same thing no new construction between below mean high water the other big issue and with any construction along the shore is the the new construction the the regulators can really kind of get their arms around

Those projects you you know what the resources are you know where the flood zones are and you can apply them and you know what the rules are the issue in a lot of cases for towns that are already developed and you already have houses along the shore are going to be substantial improvements

What i have here is a change to zoning regulations the flood plain management regulations in westport connecticut basically the concept is that you don’t want to encourage people to continue to improve houses you know be they beach cottages uh what have you uh that are in a flood zone um

And therefore increasing the value of the house without taking steps to make the house flood proof so the basic rule is that if you’re going to do a renovation that results in or exceeds 50 of the market value of the structure you need to bring the entire house or structure up to

Code for fema and a lot of times that requires basically raising the structure so that the the bottom horizontal member of the first floor in which people live is going to be one foot above the 100 year flood elevation and the 100 year flood elevation is really the key that’s

That’s the line that controls a lot of fema policies and rules but that’s difficult to do in a lot of circumstances without completely rebuilding the house and creating houses on stilts or very oddly designed houses and also depending on the value that the local tax assessor places on the house versus the property

You can you can be in a situation where you have a property at least in connecticut we’ve seen this you have a waterfront piece of property the the land is worth a million dollars but the house is worth three hundred thousand dollars um and if you’re at a threshold

If you wanna do some major renovations to that you’re gonna pass surpass hundred and fifty thousand dollars in construction costs pretty quickly you know uh for those of you who have renovated a house or built the house you know a new kitchen can cost you fifty thousand dollars just for interior

Repairs uh you know interior renovations so um it it can really make a big difference what you’re trying to do and also the the reason getting back why i have this particular slide and the changes is in connecticut at least sometimes whether the substantial improvement uh rules applied or not

Depended on what town you were in or how they would apply for example here in westport they went from a five-year look back provision to a lifetime look back provision you can see that in the first three lines there and the the concept there was if you’re only looking back five years

Every fifth year you could do a major renovation and maintain a house that really isn’t safe for when the next hurricane strikes so towns are starting to get a little more strict with with the substantial improvement policies and here the definition of substantial improvement you can see is is pretty broad okay

Thanks for giving me a minute to catch my breath let’s just um as we charge here to the end one of the big issues in connecticut and i think in in other states and in rhode island is get our violations along the shore um uh who’s going to be responsible

If if there’s an existing violation the the history of this issue in connecticut at least being people would build things a lot of time residential docks without permits the property would get transferred sometime checking there was no requirement in connecticut to record permits i i think realtors and and closing attorneys maybe

Just turned a blind eye to whether a doc had a permit or not and i i know of situations where houses were sold with you know dock was a key feature especially older docks bigger docks that go out into deep water which may not be

Might not be able to get a permit for those anymore but they never checked to see if it had a permit so in connecticut the current property owner is deemed to be responsible for maintaining a structure and it could be they said a dock a lot

Of times it could be a sea wall or any type of flood and erosion control structure a pile of rocks along the shore under most coastal zone management programs any type of structure like that that controls flooding or erosion is going to be highly regulated

If you buy a house and it has a little seawall even a garden wall it’s likely that it required a permit and if you keep it if you don’t rip it out not that you did anything affirmative to maintain it you’re still responsible and it’s frustrating and for the owners i will say

For the most part the the dep staff are understanding um that people maybe should have done a better job checking but they’ll be understanding and resolving violations but the statutes are clear that if you retain or maintain anything you’re you’re going to be responsible for it it’s the easy cases

Where the person still owns the property who did something to correct this problem starting just october of last year the state now requires that if you receive a permit from the dep for any coastal activity you have to record it on the land records so it’ll be there for the next

You know during the next title search and they also require that if you now own a property that has a regulated activity on it you have to record the most recent permit prior to transferring the property and it’s new i’ve talked to a few town clerks who weren’t aware of this same with

Real estate attorneys but i think as people get understand this uh requirement it will really sort of cut down on um these situations because if you’re buying a multi-million dollar house and you’re going to the closing and your attorney tells you by the way there’s no permit for that doc you’re going to

Make accommodations to get that resolved with the seller before you put yourself in a situation where um you’re going to be responsible for permitting the doctor or ripping it out in connecticut i’m sorry in rhode island the regulations have required that the applicant record they call them ascents on the land records

At the time after they’ve received them and but the regulations also and their the laws also make clear that you know any person can be ordered to cease and desist any violation and that notices and it’s the same in connecticut notices or orders are recorded on the land records okay

I mentioned docs that don’t have permits and all of the regulations and for connecticut army corps rhode island have grandfathering dates for lack of a better term and they’re they’re here connecticut there’s one day the 95 day is actually that’s new that just got moved up from january 1 1980

June 24th 1939 is the um that’s when coastal permitting first came into effect in connecticut and there’s another statute that specifically talks about um structures or activities that predate that date but all these are are hard to to meet the eligibility requirements it’s not always just so simple to say

That it was there there’s other requirements to meet generally it needs to have remained the same since the grandfathering day yeah a lot of times these grandfathering dates will apply easily to uh sea walls and and revetments and things of that nature that someone put in you know decades ago

But it’s harder for docs and things like that because not many have remained the same especially when in connecticut the grandfathering date was 1980 um something would change and and connecticut like a lot of states has a whole series of aerial photographs and you could tell as you look through the series that

Something’s changed and if that’s the case then you don’t get to maintain it and just real quick for the for connecticut and grandfathering connecticut has a simplified permission a permitting process called a certificate of permission um that allows you as i was saying to get to go through the simplified process to

Be considered grandfathered but in general it has to be continuously maintained and serviceable that’s the term and as i said from either the if it was a pre-39 structure or a pre-95 structure but the question is always going to be was it continuously maintained and serviceable and you have situations like this timber

Bulkhead you can see in the background there some some logs have fallen in is it going to be allowed to make to remain or be rebuilt yeah that’s a it’s an unanswered question um but it’s some it’s the questions that have to be have to be asked because

Uh as i said the coastal zone management programs generally um um frown upon structural controls for erosion and sedimentation along the shoreline i’m gonna go now if you have um just to sort of talk about some of these issues and pictures i know we have about 13 more minutes of you hearing me

Go on and on um so i just talk a little bit about some of these concepts in practice um and examples of things i talked about the the old does not mean okay this is the situation where you you buy a property and this is one of those properties where

You have a quite a long dock but it doesn’t have all the permits it needs the new owners even decades later there’s no statute of limitations provisions could require that the doc come out especially if it has impacts on coastal resources and really if it has impacts on navigation

Going back to the concept of public trust the primary concern that the state’s going to have is that structures do not impact navigation and just a sense of the change in how the agencies have looked to to impacts and what’s acceptable for for structures along the shoreline these little stretch of shoreline

Along the connecticut river you can see the most southerly property has a pretty extensive dock i mean you can’t miss that but then it has armoring and flood and erosion control along the shoreline the next one up the dock is older and and actually is older but that owner would never get

Is highly unlikely i should say to get a a permit for a dock as large as the one on the bottom just because the the concepts of impacts have has changed and then you can see the dock on the top uh is more typical the type of dock that’s that’s uh permitted now

That one is a little unique because you see a very long walkway through um a high marsh you know upper tidal wetland my experience would be that that depending on how wet the soils are there the dep probably wouldn’t like that type of walkway anymore because it cuts up the wetland and and

With the concept being you want to have as minimal a structure as possible now say is a side since i represent property owners and and i have a somewhat excuse me difference of a opinion with the regulators about what reasonable access should be from from a you know waterfront property when

It comes to boating access connecticut common law refers to access to deep water and connecticut dep’s policies talk more about reasonable access which means not all times and tides i just had a meeting with some regulators yesterday they they know we have a philosophical difference um but sometimes for the property owners

And for the dep it’s it’s not worth making a federal case out of maybe 10 more feet of dock shorter or longer so it’s one of those issues that’s constantly simmering but no one’s yet decided to to make a federal case out of it sea walls

And i’ll talk in a little bit about climate change and sea level rise but sea walls are always going to be a point of contention as i said this is a flood shoreline flood and erosion control structure and under connecticut’s coastal zone management act and most coastal zone management policies they

Are frowned upon because they change the national natural erosion process and sediment transport so it’s there’s generally a battle if a property owner wants to try to conserve acreage if they’re seeing a significant erosion of their coastal property whether whether they’ll be allowed to to build something this is actually a site that’s

Currently in litigation this also represents this site represents the conflict over state and local permitting in connecticut there’s part of the lawsuit involves the location of the high tide line which is the state’s jurisdictional boundary as you can imagine there’s a difference of opinion whether this sea wall is in the

State dep jurisdiction or solely within the local jurisdiction um and it’s it’s uh i don’t have to get into the the issues in the case but you can appreciate that if you just don’t need one more permit then it makes it that much more simple for the

For the property owner and you can see to the left of the picture uh a flood and erosion control structure that you know was allowed it sometimes just comes down to engineering and placement this is an interesting site you can see all those halfway completed walls along the shore

Those are all i think i alluded to this earlier those those would all still be flood and erosion control structures anything that holds back topsoil or fill or would could potentially impact flood waters will be considered a flood and erosion control structure a lot of times people

Will want to put in garden walls you know these aren’t very high sometimes two or three feet something that on a property that wasn’t on the coast would be of no concern whatsoever but can result in violations and removal orders if you’re along the shore two important resources

We already talked a lot about tidal wetlands and as you look down this this is a bulkhead in a tidal creek you see on the left hand side intertidal flax which are a unique and important resource they provide habitat for small worms mostly but shellfish juvenile shellfish and they are a protected resource

And on the other side you see a small emergent tidal wetland that got on the wrong side of this bulkhead at least from our clients perspective through cracks in the in the timber bulkhead both while we’re not talking a lot of area once you have the resource then you have

To deal with the uh with protecting it or or developing around it uh intertidal flats are are highly regulated by the the federal national marine fisheries service and the new what they require a lot i would say a lot what they’re going to require is that they have required and will require in

The new connecticut general permit is that any floats that are connected to um uh docks have to be uh designed so that they’re elevated with float stops or chains to be 18 inches off uh this type of mud flat that’s been sort of a requirement going back five ten years now

But they’re making it official by putting in the new general permit that the the army corps intends to issue for connecticut in may and you can see i mean if you look in the background on the creek side you can see floats sitting in the mud you can see a boat

Sitting in the mud this is not an unusual occurrence in connecticut and i’m sure elsewhere um and they’re trying to to to get away from that as long as you know you need to do it it’s it’s no big deal other ways around this are boat cradles uh or

Other uh design features to keep structures and vessels off the ground here i titled this one avoid wetland impacts and protect benthic habitat because this goes to what i was just saying um here’s a situation where you have a peer over a a title wetland to a ramp or gangway

And a float you can’t tell so much but that flow is is up on stops it’s not going to touch the bottom you can see you know we’re getting towards the low tide here that’s an entire intertidal area so uh you know the property owner in this circumstances has to appreciate that

They they don’t you know regardless of any policies about what dep likes to see for docs how long they are or what not um when you buy a piece of property like this you just have to appreciate you’re you’re not getting access to all the times

And the dep given the littoral rights of each property owner will accommodate them with some type of dock but it has to avoid wetland impacts and protect the benthic habitat in connecticut generally and in new england with the army corps and epas what you want to do with wetlands is have a

A fixed structure if it’s going over a wetland to be designed so you have a foot of clearance over the top of the vegetation during the at the height of the growing season this is yeah this is one of my last slides i’ll try to push on through here shellfish

Beds whenever you’re dealing in an area that has shellfish beds they are protected in connecticut there’s statutes about getting if you want to put a mooring you have to get permission from the shellfish bed owner common law gives superior rights to the property owner who’s trying to put in a dock

But as i mentioned earlier we have a bureau of aquaculture every while they’re not a permitting agency for structures or dredging or moorings or anything like that you do have to get through them and their review of the of the application can impact whether you might have to face a

Public hearing or not which uh complicates things greatly and in connecticut at least all beds are protected equally even i don’t know how familiar you all are with beds are classified as to their use you know some beds you can just pick up a an oyster shuck it and eat it

But if it’s if there’s pollutants beds can be closed they can be only used for certain purposes but that designation or classification doesn’t change the fact that it’s a shellfish bed and has a potential now you can argue that a closed bed due to pollution you don’t

Have to go to any great lengths to protect it but you still have a shellfish bin and here’s something that you’ll never see built again this is the old norwalk yacht club and just so you get a sense of the permitting regime that you have to go through um

These owners needed permission from the dep basically to uh i’m being a little flip but to to to remodel their kitchen and to change their bathroom half of their house was within the dep’s jurisdiction somewhere around where this door is is the high tide line and um

In order to do the renovations they wanted on this house they had to jack it up above the 100 year base flood elevation do a lot of structural improvements to the foundation and they were not in the end able to enclose any of these porches because it was deemed to

Conflict with policies under coastal management act to limit hazards to life and property uh i i disagreed but the clients were able to come up with a new design and and get what they you know get something they wanted but this house was highly regulated and lastly

On climate change and i’m going a little over i want to save time for questions it’s coming it’s going to be part of our regulatory consideration the army corps put out this circular it applies now just to uh core civil work activities but see it’ll incorporate they have to

Incorporate the direct and indirect physical effects of projected future sea level change on all their projects so i think i think that’s going to happen soon in rhode island oops sorry i got another slide um just more of the policy from the army corps and so this will require it doesn’t

Require applicants now but it requires the the army corps itself that you have to have planning and studies and engineering designs to consider alternatives so um connecticut now is doing what is called uh sentinel monitoring they’re just sort of keeping an eye rhode island actually passed they implemented a new

Regulation it’s part of it’s part of their coastal management regulations that it’s their policy to accommodate a base rate of expected three to five foot highs and sea level by the year 2100 so and and that’s for the implementation of public and private coastal activities

So they’re going to look at that uh with all their applications and just less and then what are we concerned of i say the agencies but i guess we should all be uh because here’s what happens um you start with sea level five thousand years ago

And the marsh just above sea level uh salt tolerant plants today um we’ve got sedimentation and peat formation below the the current sea level and supporting the tidal marshes and now you have houses if you put in a hard structure to protect the house and the sea level

Goes up as the sea level goes up those salt tolerant plants they can tolerate salt they can’t live in salt water for the most part and you start to lose the wetlands and you have a shoreline that’s completely armored so that’s the concern um i have a whole nother presentation about

The property rights impacts of of maybe prohibiting someone from putting up a wall and you know where do you where do you have a taking um but that’s for another time in place but this is something that definitely needs to be considered as we go forward so that’s my last slide

And i guess we’ll take questions all set cody yes um so back to your on the size does not matter slide if you want to go back to that um valerie just had a question uh she was wondering if you are suggesting that the regulations are advocating the filling of the marsh

With grass instead of a boardwalk on piles over the marsh are they the in in connecticut now there’s what they look at is um scientifically they’ll try to determine the break between the what the high marsh and the low marsh based on plant species and i’m not a biologist

But i can i’ll do my best the policy and and commentary and i’m sure there’s some connecticut people on the phone connecticut doesn’t have regulations they have policies that connecticut dep but the policy is that they don’t want to see walkways through high marsh they’ll allow walkways over

Low marsh to allow someone tax you know access to the water so they’re not advocating walkways through the marsh excessive uh walkways uh and actually in a recent the recent case i talked about whereas just at the planning and zoning commission on tuesday um people asked about that and um

You know it was an issue in the hearing at the dep and the dep said we you know we’re really well they might allow it in the future if the sea level rises and you’re talking and the high marsh turns into low marsh for now they’re gonna make people walk through

High marsh for the most part and you know get their feet a little wet now the client in that situation really didn’t care about that he liked the privacy that walking through the marsh afforded him and his family so so no the dep is not encouraging long structures through marshes

All right thank you um david as some local municipalities he believes the ghoul third is an example have begun to incorporate anticipated sea level rise into local czm planning and codes do you know of any other examples i don’t know if that’s a connecticut as a connecticut specific question i don’t know

Of any um other examples of towns that have passed something like that i know groton um is doing a pilot study on the effects of sea level rise and zoning so that might be something he might want to look into i can’t remember all the details off the

Top of my head i apologize okay and then um brian um as he lives in hawaii and there they use a shoreline setback ordinance where setbacks are to be established based on the equation using historical erosion rates um do you guys use any of that in connecticut or rhode island

Rhode island has that and they have yes they use that in rhode island they don’t use that in connecticut really once you’re in connecticut once you’re outside you’re either if you’re doing a development project on the upland you’re most likely not in the state dep jurisdiction so all the coastal zone management

Considerations will come through the what we call a coastal site plan um as i mentioned earlier that’ll be commented on by the dep but they’re not the regulatory authority so while erosion and you know impacts from flood are something that have to be considered there’s no specific setback requirement

And you know we’ve seen things you know very close to title wetlands because we don’t have a setback requirement from title wetlands either we have a what we call it upland review area for inland wetlands in connecticut but there’s no setback requirement so you can be

If you propose something 10 feet from a title wetland in connecticut you don’t have to go to the dep okay um our next question is from tom do floodplain regulations and floodplain or flood insurance programs have an unintended consequence of promoting the maintenance of structures in the

Floodplain rather than place the risk of occupying a floodplain on the private property owner okay today would you like to agree that one more time yeah yeah so do floodplain regulations and flood insurance programs have an unintended consequence of promoting the maintenance of structures in the floodplain rather than place the risk of

Occupying a floodplain on a private property owner ah that’s a good question um a what i think and i’m not an expert on on the flood insurance program but what i think they encourage sometimes is it’s just the maintenance of structures that are not flood proofed by um uh

By requiring you know by really as i said earlier if you want to do the substantial maintenance um you know you can really trigger um a major basically renovation to your house so um tommy that’s a tough one um coast i guess it’s tough to say because a lot of times

People are just sort of hanging on with their existing structures and they’re not doing anything so to the to the to the extent that there’s no more investment in flood prone structures or structures that aren’t flood proofed then the floodplain management regulations are doing the right thing

Um because they have to balance you know the the property interest of the um of the owner with the public uh interest in uh minimizing flood damage and and the need to sort of bail people out i don’t know if that’s a i don’t think that’s a great answer but

Maybe if tom has a follow-up well okay um jps can you talk about coastal management in the context of regular regulatory takings decisions and implement implications for citizens and governments trying to protect the land uh yes but i don’t know how much time we briefly yes um there’s briefly yes there’s um

You know there’s um there’s a few cases the lucas case um and i looked at them briefly i actually specifically took them out of this presentation there’s a series of cases regarding takings as it relates to coastal management and maybe i think that probably the best answer is if if

My emails here i if um if the person with a question wants to get in contact with me that’s probably the easiest thing to do because there’s cases out of massachusetts where someone wasn’t allowed to build there was a case a recent case in new jersey like went back years but i can’t

Remember all the details there’s the cases out of south carolina there’s the recent stop the beast renourishment case from the supreme court so it’s a it’s a very interesting and complex area of takings law so i just encourage that person to give me a call or send me an email all right

Gene asks does a public trust doctrine apply similarly similarly in new york as it does in connecticut in new york state the nys dec has mapped tidal and freshwater wetlands boundaries would connecticut benefit from a more well-defined boundary i think they would i think connecticut would benefit from a more well-defined boundary

My understanding of the public trust doctrine is that it’s pretty universal um state to state that all they that it applies to all the different states what what’s happened is um with the passage of coastal management act and other environmental regulations sometimes the legislation sort of occupies the field

That that was once occupied by the public trust doctrine when you have specific statutes and regulations you know those are going to be the first things you look at and the public trust doctrine might just sort of fill in the gaps where where specific legislation is is missing in connecticut they

They use it to because i’ll be a little cynical is for the permitting program uh for structures so a lot of times they just rely on their their obligations they being the the dep rely on their their obligations under the public trust doctrine to um you know to determine impacts okay um

For those of you that still want to ask a question um please send those in and we can try to get those in before we close up today our next question is from francis will gener general efforts to reduce numbers of federal regulations streamline processes or will we always have a local

Versus federal for state versus commissions etc in when it comes to permitting coastal projects i my experience is the i have the least amount of problems and take that word for whatever whatever you will it’s easiest with the federal authorities um you know the new england district of the

Army corps has has created these programmatic general permits and it’s very straightforward what you know there’s two different categories um and if you go in category one you don’t need anything if you’re in category two you need agency review and then after the review they just send

You a letter you don’t even have to send in a particular application form or anything like that they just use the state or the local application to determine impacts and it’s all very clear you know if you’re doing a wetlands project if you stay under 5 000 square feet of disturbance and that

And i apologize i think i got that right on an inland wetlands project you don’t have to deal with the the army corps it’s a category one so the federal agencies haven’t been troublesome what what i found is that as you go down the local commissions have become

And again it depends on the town have become the most problematic as just to be clear on the the matter i just had whereas at the planning and zoning commission uh we we got our federal permit we got our state permit um the entire dock was either was entitled

Either in title wetlands or totally in state or federal jurisdiction but there’s 22 feet of fixed pier from where it started on the upland crossed wetlands and then went beyond the mean high water line into state and federal jurisdiction 22 feet of fixed pier that had two permits

Gone through you know coastal zone consistency but we still had to go to the local um planning and zoning commission and still at a faced opposition and i’ve been in someone i think david’s question mentioned guilford connecticut i was in guilford connecticut and watched their planning and zoning commission deny

An application for you know 10 20 feet of dock that already had its permits because of what i thought it wasn’t my client i was there on another matter i wanted to say something but but for reasons that had nothing to do with their jurisdiction and it knowing that

You know for a simple residential dock it can take two or three years um you know to get to the end and have all your permits and have a local commission deny you for 10 feet of a dock on bases that have already been reviewed by federal and state authorities it was

It’s very frustrating so it’s not the federal government that’s that’s the issue here as you get into bigger projects obviously they have more concerns but um it’s it’s it’s some it’s a state and local okay well i just want to thank you john um we have run out of time and so okay

This will conclude our presentation for today for those of you still on attendance i just want to go through a few basic reminders on how to log your cm credits first of all you’ll just need to go to www cm select activities by day and then select today’s date february february

Friday february 18th and then it will be listed underneath coastal development and regulatory realities another thing is just that we have been recording today’s session so you’ll be able to find a pdf and a video recording of today’s webinar at www.utah.apa.org pastwebcast.htm and then this should be

Up by monday and again i just want to thank you all for attending and i want to say i thank you to you as well john for giving today’s presentation thanks for all your help cody and thank you all you

ID: 3IqhmVgJ1hM
Time: 1344356464
Date: 2012-08-07 20:51:04
Duration: 01:30:49

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