Coastal Services Center

Perhaps in an effort to capture the feeling that this Otis Redding song inspires, more and more people are buying waterfront property along our nation's coast, and many of them want their own private docks. In the past 10 years, many coastal resource managers on the East Coast have seen staggering increases in dock permit applications—and lawsuits. In what could be a precedent-setting case in New York, a U.S. district court judge recently upheld the constitutionality of standards imposed by a municipality participating in the state's coastal management program to limit the effects of docks and piers.

The court's decision has "made the prior 10 years and all the efforts we've undertaken in this division in an attempt to deal with docks worth it," says Steven Resler, supervisor of Consistency Review and Analysis for the New York Coastal Management Program.

He adds, "We and the communities we've dealt with are much more confident in developing these types of standards because of this case. There is no other case that we are aware of that focuses on all the issues touched on in the Stutchin case."

Causes for Concern

The issues touched on by the judge in the Stutchin vs. the Village of Lloyd Harbor case include the impact of dock restrictions on property rights, and the effects docks may have on the environment, public use, navigation, and community character or aesthetics.

Many coastal management programs are struggling with these issues as a result of the sheer number of permit requests they receive for new docks. In South Carolina, for instance, 6,700 private docks have been permitted in the past 10 years. In 1982, the state's coastal program permitted 80.

"The two biggest issues surrounding docks in South Carolina," says Richard Chinnis, director of Regulatory Programs for South Carolina Ocean and Coastal Resource Management, "are dock proliferation—how many is too many—and closely tied to that is cumulative impacts."

"This is the shoreline equivalent of urban sprawl," agrees Steve Bliven, a research fellow for the Urban Harbors Institute at the University of Massachusetts at Boston. "A lot of people are wrestling with this issue."

Stuart Stevens, administrator of the Georgia Coastal Management Program, says, "Probably the main issue with docks is that people [who own waterfront property] believe they have a right to build a dock. They think it's part of their property rights. This is not true. They have the right of access, but that doesn't give them the right to build anything."

This is the case, Stevens notes, because in most coastal areas, the state or municipalities own tidal lands, which are held in the public trust.

On the Court Docket

This property rights question is at the heart of the New York lawsuit. According to the judge's summary, the property owners contended that the Village of Lloyd Harbor's refusal to approve their application for a dock behind their waterfront home that was longer than the municipality allows dampened "their legal and constitutional rights to own and use their property and its riparian rights." They argued that this constituted a "taking of their property for public use without just compensation."

The village's dock standards include limiting their length to 75 feet, or to water depths of 2 feet, whichever comes first. The property owners' permit request to build a 115-foot dock behind their home to accommodate their 36-foot boat was approved by the coastal program and the U.S. Army Corps of Engineers, but was denied by the village. The Stutchins appealed, but filed the lawsuit before the local zoning board made its decision.

Making the Rules

Resler notes that the village developed its dock standards with the assistance of the New York Coastal Management Program. He explains that the coastal program provides incentives to local governments to develop Local Waterfront Revitalization Programs, which are comprehensive plans for the "use, development, and protection of coastal resources. This allows municipalities to refine the program to their circumstances."

Once approved by the state and the National Oceanic and Atmospheric Administration (NOAA), the local program "amends the state's coastal management program and becomes the decision-making policy for the municipality, state, and federal government." When the Stutchins' permit request was filed, the Lloyd Harbor Program was awaiting NOAA's final approval, so the state was unable to use the standards to deny the dock application, Resler says.

"It's one of the carrots that we offer the local governments," he says. After receiving state and federal approval, municipalities "wouldn't be out there attempting to defend their standards on their own. They have the state and federal government as partners." The village's program was approved just a few months after the Stutchins' state permit was requested.

Resler, who spent four days testifying in the Stutchin hearing, says the strict dock standards are appropriate for the village because of its community character and natural resources. He describes the relatively undeveloped, exclusive residential area on Long Island's north shore as "unique" and "tranquil." The harbor has no commercial uses and is a very "shallow, narrow water body that is fringed by high value, intertidal wetlands." The area has been designated by the state as "significant coastal fish and wildlife habitat," and only has about 45 residential docks.

"When the village decided to participate in the program with us," Resler says, "we began by assessing the character of the village, its development patterns, property values, and natural resource values of everything seaward of the mean high tide line."

When addressing docks, the village and coastal program took into account the possible interference with navigation and public access, the effects docks may have on sensitive natural resources and aesthetics, as well as the issues created by increased boating traffic. "They recognized that wakes and prop washes would cause turbidity and erosion problems," he says. When you approve docks, "you're not just getting docks alone. Many of the problems come from all the things associated with them."

Resler notes that the village also included public trust language in its codes, ensuring that "anyone has the right to traverse the shoreline in that village, to swim, canoe, take shellfish, or just to stroll unencumbered by unreasonable interference."

The Judge's Ruling

In his 68-page decision, the judge writes that the Stutchins were not denied their right to access the waterway adjacent to their property, but merely had their "mode of access . . . limited to a dinghy launched from the foreshore of their property." He notes that both the right of access and the construction of a private dock are "subject to general rules and regulations as the Legislature may see proper to impose for the protection of the rights of the public, whatever these may be."

The court found that there was "a substantial rational basis for reducing the size of docks in these waters, including the Village's . . . concerns regarding: (1) obstruction to navigation; (2) preservation of the pristine natural habitat and precious resources of Lloyd Harbor; and (3) aesthetics." The judge dismissed the regulatory taking claim and concluded that the village standards "pass constitutional muster."

"The decision summarizes the range of issues that our department addresses when considering whether a dock and its uses, location, size, and configuration is appropriate in the area where it is proposed," Resler says.

The Environmental Question

There is still great debate in the scientific community about the effects docks have on coastal ecosystems. Resler says that coastal managers may be "focusing too much on quantifying to the nth degree all the effects of docks on the nearshore environment."

NOAA recently awarded the New York coastal program a competitive enhancement grant to assess and attempt to quantify the cumulative and secondary effects of docks and other similar structures in the state's coastal area.

While the coastal program hopes to develop better ways of characterizing and managing these effects, Resler says, "It all comes back to whether a structure is appropriate in an area. . . Science doesn't tell you that. It helps inform you, but you've got to bring other decision-making criteria into play."

For more information on New York's efforts to manage docks, or to receive a copy of the judge's summary decision of the Stutchin vs. Village of Lloyd Harbor case, contact Steven Resler at (518) 473-2470 or sresler@dos.state.ny.us.