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San Francisco Bay - PowerPoint PPT Presentation


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San Francisco Bay Public Access Approved by BCDC Sea Level Rise in the Bay Great Park - 125 Acres | YBI Open Space - 90 Acres BCDC’s Dilemma: Limited Authority and Jurisdiction Created to address a shrinking – not expanding – Bay Most land uses regulated by 55 local gov’ts

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PowerPoint Slideshow about 'San Francisco Bay' - JasminFlorian


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Presentation Transcript
bcdc s dilemma limited authority and jurisdiction
BCDC’s Dilemma: Limited Authority and Jurisdiction
  • Created to address a shrinking – not expanding – Bay
  • Most land uses regulated by 55 local gov’ts
  • Has extensive authority over fill IN the Bay
  • But in the shoreline band - within 100’ of MHT – BCDC can only require “maximum feasible public access”
  • Can’t prohibit development in flood-prone areas; require flood protection; ensure upland areas are available for marsh migration; regulate GHG emissions
  • BCDC authority is also limited by the takings clause
takings and the public trust doctrine
Takings and the Public Trust Doctrine
  • Takings claims can inhibit government actions to protect environment, public access, wildlife, and habitat on private property
  • But BCDC is aided by the Public Trust Doctrine:
    • PTD creates a “public easement” over tidelands and submerged lands which can protect against “takings” claims
    • Activities on trust lands/waters subject to dominant state ownership rights and the trust public easement
    • Ownership of tidelands may not include right to fill
    • PTD a “background principle of property law” (Lucas)
    • Tideland owners may lack “reasonable investment-backed expectations” (Penn Central)
access by regulation and the takings doctrine
Access by Regulation and the Takings Doctrine
  • 5th Amendment: private prop. may not be taken for public purposes without just compensation
  • Regulatory taking:
    • Per se taking:
      • Physical appropriation/invasion (Loretta)
      • Total taking: (Lucas) background principle of prop/nuisance exception
    • Permit Exactions (dedication of property):
      • Essential Nexus (Nollan)
      • Rough Proportionality(Dolan)
    • Balancing: if no total taking, physical invasion or permit exaction, Penn Central tests apply (Lingle): economic impact, character of gov’t regulation, investment-backed expectations