Charmane IMG_6456.JPG

[5]
Attending Issues
to the application of the
Public Trust Doctrine

 

tidelands
which are granted in trust to local governments
may be leased
and improved
if the leases and improvements promote uses authorized by the statutory trust grant and
the public trust


Leasing of Tidelands

As demonstrated within the Connecticut shoreline, public trust lands can be leased for particular uses.  One example, is that tidelands which are granted in trust to local governments may be leased and improved if the leases and improvements promote uses authorized by the statutory trust grant and the public trust.

Leases for the construction of warehouses, attending wharves, or for railroad uses, that were regarded as structures necessary to directly promote port development, were approved early in the 20th century.

Leases for structures incidental to the promotion of port commerce (convention centers and tourism structures are examples), have been held to be valid exercise of the trust because although they did not directly support port business, they encouraged commercial associations which would make the port and its assets familiar to the public and indirectly develop trade and shipping.

 
 Market Street, Philadelphia, PA

Market Street, Philadelphia, PA

 

As such, visitor-serving facilities, such as restaurants, hotels, shops, and parking areas, (which might today seem inappropriate, in the context of which we think the trust is applied) have been approved as appropriate uses because as places of public accommodation, they allow broad public access to the tidelands and, therefore, enhance the public’s enjoyment of these lands which historically would be inaccessible for their benefit.

 

Leasing tidelands for construction of permanent structures to serve a lessee’s development project would therefore consider:

  1. the structure must directly promote uses authorized by the statutory trust grant and trust law generally;
  2. the structure must be incidental to the promotion of such uses, or;
  3. the structure must accommodate or enhance the public’s enjoyment of the trust lands.

Within this decision-making, application of the public trust continuously evolves: so that a trustee is not burdened with outdated classifications which might be solely in sympathy with the then-present/original and traditional harmony of commerce, navigation and fisheries; and thereby dominatie uses that would logically encompass changing public needs.

 Achilles: the ardent daybreak explorer... 

Achilles: the ardent daybreak explorer... 


Trust Applications Unrelated to Water

 
 Huntington Beach, CA

Huntington Beach, CA

Construction which is not directly connected with water-related commerce may represent appropriate trust use when it must be located on, over, or adjacent to water in order to accommodate or foster commercial enterprises.

Oil production facilities, freeway bridges and nuclear power plants provide examples (in addition to those discussed immediately above).  The trust is intended to promote rather than impede essential commercial services benefiting the people and the ability of the people to enjoy trust lands (Carstens v. California Coastal Commission, [1986] 182 Cal.App.3d 277 [227 Cal.Rptr. 135]). 

 

Still, the essential trust purposes have always been, and remain, water related, and uses that do not accommodate or enhance the public need for essential commercial services or their enjoyment of tidelands are inappropriate uses for public trust lands. These would include commercial installations that could be sited on uplands and strictly local-serving uses that impart no significant benefit to peoples statewide, such as: hospitals, supermarkets, department stores, and local government buildings and private offices that serve general rather than specifically trust-related functions.

 
 

Mixed and Incidental Uses

 Summerland Beach, CA (1901)

Summerland Beach, CA (1901)

Since leases of tidelands must be consistent with statutory Public Trust grant purposes, leases which expressly contemplate the promotion of non-trust uses rather than trust uses (mixed use, wherein only part of the project would be trust-use) would not comply with the terms of the trust grants. 

Pursuant to this duty imparted by the trust, non-trust uses on tidelands, whether considered separately or part of a mixed-use development, cannot be assuaged: that is, unlike some environmental conservation milieu where developments with harmful impacts may be approved if the impacts are appropriately mitigated by the developer, in the tidelands trust context, mitigation of a non-trust use is never acceptable.

 

More-over, the state cannot grant tidelands free of the trust merely because the grant serves some public purpose (such as increasing tax revenues), or, because the grantee might put the property to a commercial use.  Each structure in a mixed-use development on tidelands must have as its primary purpose an appropriate public trust use.  If its real or main purpose is a trust use, portions of it may be leased temporarily to non-trust tenants, as incidental to the main purpose of the structure.

 
 Comet: the beach rocket...

Comet: the beach rocket...


The Role of the Legislature

 
 

CT’s State legislature acts as the representative of its people and (subject to judicial review) is the administrator of tidelands trusts.  Thereby, it is the final arbiter of uses to which public trust lands may be put.  This means that the legislature may create, modify, or revoke a trust grant (or authorize non-trust use of tidelands) so that the tidelands are administered in a way most suitable to the needs of the people of the state, and which promotes public rather than exclusively private purposes. 

 
HenryClay1850 (2).jpg


As such, the legislature cannot commit trust tidelands irreversibly to private development or purposes, since that would be abdicating the original grant trust.  Further, the grant created does not operate to transfer legal title from the state.

There is still considerable latitude, however, and while non-trust uses are not unlimited, the legislature may assign purposes to tidelands unrelated to the common law public trust, to the extent that these purposes are incidental to and accommodate projects that must be located on, over or adjacent to the tidelands.  In many states, legislatures have, through statute, extended public trust responsibilities to include the protection of shorelands and wetland areas adjacent to navigable waters.

 

A State legislature may delegate the administration of the public trust in navigable or navigable-in-fact waters to local jurisdictions under certain circumstances.  When so doing, it cannot be for solely local concerns if such delegation does not promote the statewide public interest in trust resources.  The legislature may delegate power over trust waters only if:

  1. the State retains oversight over the delegatee; 
  2. the delegation establishes clear limits and definite standards; and
  3. the delegation must advance the vital interests of the public.
 
 Chase: still... uncharacteristic... and only for a moment!

Chase: still... uncharacteristic... and only for a moment!

 

In Courtesy Sandwich Shop, Inc. v. Port of New York Authority (1963) (12 N.Y.2d 379), a challenge was made to the statute authorizing an eminent domain property condemnation through which the NY Port Authority sought to raze streets known as “Radio Row” in order to acquire a site on which to build the World Trade Center, on the basis that it allowed portions of the new structure to be used for the singular purpose of raising revenue.

Project opponents argued that a publicly financed office building should not be permitted to have any private commercial tenants even though the NY legislature had expressly allowed incidental private use of the building. The state courts held that as long as the primary purpose of the office building was for maritime purposes connected with the port, legislation authorizing the leasing to private tenants was valid. 

The court examined the context of public financing and condemnation, stipulating that when a portion of a structure is to be leased for the purpose of raising revenues to offset expenses, this incidental non-public leasing must have been legislatively authorized to accommodate provisions of the public trust.

 

 
 Cassie: eyes as windows to a gentle soul... 

Cassie: eyes as windows to a gentle soul... 

“Why do I put up with you?” I ask the dog. I’m sitting before her on the cement floor. She makes her easrs stand out like little wings and tilts her head. Her black nose shines. Then, as if she cannot help herself, she shifts her weight back so she’s on her haunches and rests her paws on each of my shoulders. And, as if choreographed, she faints, limp fish, into my arms.”
— Robin Romm: "Mercy: A Friendship"
 Rocky: "Pl-eeeze... just ONE more?"

Rocky: "Pl-eeeze... just ONE more?"

 

This essay is written for informational purposes, not as legal scholarship, researched from publicly available sources and government documents.  We strive to keep these links current, but occasions may arise wherein upgrades to State of Connecticut sites or editing of other portals by their domain owners may cause the links to mis-direct. If this happens, let us know and we will work to correct.