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San Francisco Bay

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

JasminFlorian
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San Francisco Bay

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  1. San Francisco Bay

  2. Public Access Approved by BCDC

  3. Sea Level Rise in the Bay

  4. Great Park - 125 Acres | YBI Open Space - 90 Acres

  5. 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

  6. 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)

  7. 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

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