Chapter 7
Shoreline Public Access

SECTIONS:

7.1    Introduction

7.2    Background

7.3    Public Access Policies

7.4    Public Access Development Regulations

7.1 Introduction

Port Townsend is a uniquely situated jurisdiction. An attractive destination for travelers because of the geography and historic setting, it is also a stop along the state highway linking to Whidbey Island and points north and east. The State Parks, Centrum, and the Wooden Boat Festival, among others, attract large numbers of visitors from far and wide annually. Inarguably, the economic vitality of the City is bolstered by the public access to and enjoyment of the shorelines.

Shoreline public access is the physical ability of the general public to reach and touch the water’s edge or the ability to have a view of the water and the shoreline from upland locations. There are a variety of types of public access, including docks and piers, boat launches, pathways and trails, promenades, street ends, picnic areas, beach walks, viewpoints and others.

An important goal of the Shoreline Management Act is to protect and enhance public access to the state’s shorelines. Specifically, the SMA states:

RCW 90.58.020: “[T] he public’s opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally.

“Alterations of the natural conditions of the shorelines of the state, in those limited instances when authorized, shall be given priority for...development that will provide an opportunity for substantial numbers of people to enjoy the shorelines of the state.”

Public access and use of the shoreline is supported, in part, by the Public Trust Doctrine. The essence of the doctrine is that the waters of the state are a public resource owned by and available to all citizens equally for the purposes of navigation, conducting commerce, fishing, recreation and similar uses and that this trust is not invalidated by private ownership of the underlying land. The doctrine limits public and private use of tidelands and other shorelands to protect the public’s right to use the waters of the state. The Public Trust Doctrine does not allow the public to trespass over privately owned uplands to access the tidelands. It does, however, protect public use of navigable water bodies.

Requiring public access on privately owned property as a condition of development has been the subject of considerable legal review. Our state Constitution and the U.S. Constitution provide both the authority for conducting the activities necessary to carry out the Shoreline Management Act and significant limitations on that authority. While the SMA stresses the need for public access, our state and the U.S. Constitution provide for protection of certain private property rights.

Where public access is required as a permit condition, the courts have stated that there must be a rational and roughly proportionate connection between the project’s impact on public access and the public access requirement. Certain state statutes, such as RCW 82.02.020, also impose limitations on the regulation of private property.

7.2 Background

This Public Access Chapter is preceded by several planning efforts to maintain and enhance public access to the shoreline in Port Townsend. The public access policies and strategies included in this Master Program build on those established in past planning documents.

Relevant policies and development guidelines from two of these plans, the 1990 Port Townsend Urban Waterfront Plan and the 1992 Comprehensive Public Access Plan, have been incorporated into this Master Program. Recommended public access enhancement projects are described in Appendix G. To facilitate permit administration, the “stand alone” plans shall be retired upon adoption of the Master Program.

1990 Port Townsend Urban Waterfront Plan identified the importance of providing and maintaining safe and convenient public access to Port Townsend’s shoreline. The Urban Waterfront Plan specifically encouraged provisions for a "Waterwalk Trail" route.

1992 Comprehensive Public Access Plan - In keeping with the special character of Port Townsend, the 1992 Comprehensive Public Access Plan intended to celebrate the special qualities found along the waterfront by recommending modest access improvements coordinated with existing informal trails, street ends and access points. The 1992 Comprehensive Public Access Plan also included specific design guidelines intended to help developers and permit administrators in providing well-designed public access improvements.

Following are three additional plans implementing public access provisions that remain in effect and shall be implemented in concert with this Shoreline Master Program include:

Gateway Development Plan – Adopted by the City Council in August 1993, the Gateway Plan identifies specific transportation improvements for capital development and establishes development guidelines for the Sims Way/S.R. 20 corridor from the Port Townsend City limits to the Washington State Ferry Terminal. Guidelines within the Gateway plan focus on traffic safety, streetscape improvements and aesthetics, and economic vitality.

Non-Motorized Transportation Plan (NMTP) – A functional plan, expressly required by the City’s Comprehensive Plan, the NMTP is guides and promotes the development of improved facilities for pedestrians (including those in wheel chairs), bicyclists, and transit users. It is primarily a transportation plan that seeks to identify a network of pedestrian walkways, and bikeways to connect neighborhoods with parks, schools, commercial areas, and other destinations. Enhancement of recreational opportunities is a secondary benefit that accrues from the NMTP

Parks, Recreation, and Open Space Plan – Also a functional plan, required by the City’s Comprehensive Plan, the Parks, Recreation & Open Space Plan documents park, recreation, and open space needs. The plan provides focus and direction for future development of programs, facilities and funding sources.

7.3 Public Access Policies

General Policies

Policy 7.3.1

Seek to maintain and enhance public access, both physical and visual, throughout the City’s shoreline. Access should be provided for a range of users including pedestrians, bicyclists, boaters and, to the extent feasible, people with disabilities. Access opportunities should be varied, ranging from urban water walks to viewing platforms of natural areas.

Policy 7.3.2

Encourage the use of public access facilities to actively educate and inform the public on the importance of environmental protection of the shoreline jurisdiction. Work in partnership with local entities (e.g., Jefferson Marine Resources Committee, WSU Jefferson Extension, Port Townsend Marine Science Center, North Olympic Salmon Coalition, Jefferson Conservation District, Hood Canal Coordinating Council, and others) to implement this policy.

Policy 7.3.3

Locate and design public access in a manner that does not interfere with ecological functions or wildlife habitat.

Policy 7.3.4

Link recreational and public access opportunities together via trails, beach walks and water routes whenever appropriate. Where practical, access points link to non-motorized transportation routes, such as bicycle and hiking paths, and kayak/canoe routes.

Policy 7.3.5

Along the Historic Waterfront and Urban environments, seek a public pedestrian walkway system (dubbed urban water walk) utilizing a combination of natural beaches, pathways, piers, wharves, street-ends, sidewalks, stairways, or other improvements. Although it may not be feasible for the walkway system to be continuous along the water’s edge throughout the entire area, it should promote quality pedestrian access to and along major portions of the waterfront. The public’s ability to physically walk along the beach is a priority and thus extending boardwalks over the beach should be limited. Recommendations for the urban water walk are included in Appendix G.

Policy 7.3.6

Incorporate public access provisions into the review and approval of all public and private development projects including land divisions. Exceptions may be considered for the following:

a.    Single-family dwelling units;

b.    Where deemed inappropriate due to health, safety and environmental concerns; and

c.    Restoration projects.

 

Policy 7.3.7

Require new development that impacts public access to mitigate through the provision of on-site visual and physical public access, unless such access is shown to be incompatible due to reasons of safety, security, or impact to the shoreline. In lieu of on-site improvements, the Shoreline Administrator may allow for off-site improvements if said improvements would provide a greater public benefit (WAC 173-26-221 (4)(c) and (d)).

Policy 7.3.8

Preserve and enhance public views from the shoreline upland areas. Enhancement of views should not be construed to mean excessive removal of native vegetation that partially impairs views.

 

(See Section 9.3, Chapter 9, Alteration of Natural Landscape – Clearing, Grading and Vegetation Removal).

Policy 7.3.9

Foster public access through a variety of approaches including purchase of key segments, encouraging public and private partnerships, and working with developers to explain the benefits of incorporating public access and recreation.

Beachwalks

Policy 7.3.10

Preserve beachwalks as unimproved public access. Beachwalks are unmarked sections of intertidal land upon which the public has rights of passage in accordance with the Public Trust Doctrine. Beachwalks by definition are usually not passable on a 24-hour basis due to tidal action.

Street Ends

Policy 7.3.11

Encourage the use of street ends and other publicly owned or controlled lands to increase public access to shoreline areas.

Policy 7.3.12

Develop street end access and viewpoints. Improvements to and linkages between these street-ends should be determined by the physical characteristics of the shorelines, existing development patterns, potential for structural improvements, and other factors relevant to developing a continuous pedestrian system. Street ends appropriate for shoreline access/viewpoints include but are not limited to:

a.    South shore: Thayer, Decatur, Kearney, Gaines, Scott, Walker, Calhoun, Tyler, Adams, Quincy, and Monroe Streets;

b.    East shore: Clay, Taft, Reed, W Street;

c.    North shore: Gise Street, Cook Avenue, and Elmira Street;

d.    Kah Tai Lagoon: Garfield Street.

 

Policy 7.3.13

Ensure that use of street ends for parking does not physically block public access to the shoreline or degrade the scenic qualities of the City as viewed from the water. (See Parking Facilities, Section 8.11, Chapter 8)

Policy 7.3.14

Identify and bring into compliance uses that unlawfully encroach on public access areas, unless a street use agreement has been made between the City of Port Townsend and the proponent of the use.

Policy 7.3.15

Develop a prioritized list of improvements to street ends. Cost effectiveness shall be a key element in prioritizing the proposed improvements. Recommended street end improvements are provided in Appendix G.

Design

Policy 7.3.16

Public access improvements should be designed and constructed to:

a.    Look and “feel” welcoming to the public and be usable by the greatest number and diversity of people including, to the extent possible, the physically handicapped.

b.    Connect to public areas, street-ends and other pedestrian or public thoroughfares.

c.    Be as close as possible to the water’s edge while preserving the natural character of the shoreline and protecting ecological functions and processes of shorelines and/or their associated wetlands.

d.    Be compatible with the surrounding character and appropriate for the anticipated intensity of use. In general, the higher the intensity of development and use, the more formal and durable the improvements should be.

e.    Enhance Port Townsend’s character, including the historic and economic activity of downtown, the marine industry heritage associated most strongly with ports, and the high quality natural areas.

f.    Avoid conflicts with water-dependent uses.

g.    Provide for public safety and to minimize potential impacts to private property and individual privacy and security.

h.    Require a low level of operation and maintenance.

i.    Ensure that construction (i.e., structures, trails and access pathways) incorporates environmentally sensitive design and materials (e.g., use non-toxic, natural materials).

Access to Kah Tai Lagoon and Chinese Gardens

Policy 7.3.17

Encourage viewpoints along the shoreline of Kah Tai Lagoon and Chinese Gardens; however, the needs of wildlife, including migratory waterfowl, should be the primary consideration in their location and design.

Policy 7.3.18

Limit public access to Kah Tai Lagoon and Chinese Gardens to passive recreation such as walking, bicycling, and wildlife viewing in designated areas (e.g., trails and viewpoints).

Policy 7.3.19

Encourage trail and access restrictions to Kah Tai Lagoon and Chinese Gardens, such as, but not limited to: pet leash requirements, requirement to clean pet waste, hours of use, available trash cans, etc. to reduce potential environmental damage.

7.4 Development Regulations

General Requirements

DR-7.4.1

Developments, uses, and activities shall be designed and operated to avoid blocking, reducing, or adversely interfering with the public’s visual or physical access to the water and the shorelines.

DR-7.4.2

Except as provided in regulations 7.4.4 and 7.4.5, shoreline substantial developments or conditional uses shall provide public access where any of the following conditions are present:

a.    Where a development or use will create increased demand for public access to the shoreline, the development or use shall provide public access to mitigate this impact.

b.    Where a development or use will interfere with an existing public access way, the development or use shall provide public access to mitigate this impact. Developments may interfere with accesses on their development site by blocking access or by discouraging use of existing on-site or nearby access.

c.    Where this Master Program permits a use that is not a priority shoreline use under the Shoreline Management Act (see definition of “Priority Use”) on a shoreline of the state, public access provisions may be required in exchange for flexible use standards.

d.    Where a use or development will interfere with a public use of lands or waters subject to the public trust doctrine, the development shall provide public access to mitigate this impact.

DR-7.4.3

Required public access may include the preservation of shoreline views, the establishment of public access easements to and along the shoreline, enhancement of an adjacent street-end or park or other consideration commensurate with the degree of impact caused by the development.

DR-7.4.4

Public access is not required if, the applicant can demonstrate, to the satisfaction of the City, that constitutional and or statutory limitations would be violated.

DR-7.4.5

Alternatives to on-site, physical access to the shoreline may be approved if the applicant can demonstrate to the satisfaction of the City that one or more of the following conditions exist:

a.    Unavoidable health or safety hazards to the public exist which cannot be prevented by any practical means;

b.    Access is not feasible due to the configuration of existing parcels and structures, such that access areas are blocked in such a way that cannot be reasonably remedied by the proposed development;

c.    Inherent security requirements of the proposed development or use cannot be satisfied through the application of alternative design features or other solutions;

d.    The cost of providing on-site access, easement, or an alternative amenity is unreasonably disproportionate to the total long-term cost of the proposed development;

e.    Unacceptable environmental harm which cannot be mitigated, such as damage to spawning areas or nesting areas, will result from the public access; or

f.    Significant undue and unavoidable conflict between the proposed access and adjacent uses would occur and cannot be mitigated.

Provided further, that the applicant has first demonstrated and the City has determined that all reasonable alternatives have been exhausted, including but not limited to:

a.    Regulating access by such means as limiting hours of use to daylight hours.

b.    Designing separation of uses and activities, with such means as fences, terracing, hedges, and landscaping.

DR-7.4.6

When allowed under DR-7.4.5, alternative shoreline access must result in an equal or greater public benefit. Alternatives may include but are not limited to:

a.    Publicly accessible rooftop decks.

b.    Off-site public access, such as improvements to a nearby street end, an off-site viewpoint, or a trail system, purchase of land or an easement at a location appropriate for future access improvements.

c.    A payment in lieu agreement with the City in accordance with RCW 82.02.020 (relating to fees associated with development).

 

DR-7.4.7

Off-site public access, when required, must meet the same standards and requirements as on-site public access.

DR-7.4.8

In providing visual access to the shoreline, the native vegetation shall not be excessively removed either by clearing or by topping. (Note: Trimming of trees and vegetation may be allowed, pursuant to Section 9.3 of this Master Program).

DR-7.4.9

When required, public access sites shall be fully developed and available for public use at the time of occupancy or use of the development or activity, except where the decision maker determines an appropriate mechanism for delayed public access implementation is necessary for practical reasons. If on- or over- the water, development shall be constructed to minimize interference with physical access along the beach and views from surrounding properties, to the shoreline and adjoining waters, including locating structures as far landward as possible.

Physical Access and Easements

DR-7.4.10

Where on-site physical access is appropriate, the development shall dedicate, improve, and provide maintenance for a pedestrian easement that provides area sufficient to ensure usable access to and along the shoreline for the general public.

DR-7.4.11

Public access easements shall be designed to accommodate the anticipated intensity of use, generally ranging from a minimum twelve-foot width easement in less traveled residential areas to a minimum 25-foot width in more intensely urbanized areas. Where deemed necessary to protect environmental functions, the easement shall accommodate a buffer of native vegetation between the OHWM and the public access walkway/viewpoint.

DR-7.4.12

A reduced width access easement may be allowed to facilitate redevelopment of existing structures that encroach into the easement area, provided that the easement and design of the access is sufficient to provide safe access or alternative shoreline access is provided.

DR-7.4.13

Public access easements and permit conditions shall be recorded in an appropriate manner, such as on the deed where applicable or on the face of a plat or short plat as a condition running in perpetuity with the land. Said recording with the Auditor’s office shall occur at the time of permit approval (RCW 58.17.110; relating to subdivision approval or disapproval) and prior to the issuance of any land disturbing or construction permits.

DR-7.4.14

The standard state approved logo or other approved signs that indicate the public’s right of access and hours of access shall be constructed, installed, and maintained by the applicant in conspicuous locations at public access sites. Signs should be designed to distinguish between public and private areas. In accordance with the regulations in this section, signs controlling or restricting public access may be approved as a condition of permit approval.

DR-7.4.15

Future actions by the applicant or other parties shall not diminish the usefulness or value of the public access site.

Design

DR-7.4.16

Public access sites shall be connected directly to the nearest public area (e.g., street, public park, or adjoining public access easement), typically the nearest public area. Where connections are not currently possible, the site shall be designed to accommodate logical future connections. In either case, the design shall take into consideration the priority placed on protecting physical access along the beach (i.e., boardwalk connections that interfere with physical access along the adjoining beach area are discouraged).

DR-7.4.17

Public access sites shall be made barrier free for the physically disabled, where feasible, and designed consistent with the Americans with Disabilities Act.

DR-7.4.18

Public access landscape design shall use predominantly native vegetation (i.e., 80% or greater), particularly drought-resistant and saline tolerant plant species. Landscape buffers may be required where desirable to provide public/private space separation.

DR-7.4.19

Public access shall be designed to achieve no net loss of ecological functions. Where impacts are identified, mitigation shall be required. Materials shall be:

a.    Consistent with the character of the shoreline and the anticipated intensity of use. For example "formal" (e.g. concrete sidewalks, colonnade) elements in the downtown or "informal" design elements (e.g. log benches, dune grass and gravel paths) in the North Beach neighborhood.

b.    Durable, capable of withstanding exposure to the elements; and

c.    Wherever financially feasible and practical, environmentally friendly materials and technology in such things as building materials, paved surfaces, porous pavement, etc., shall be used.

Public/Private Separation

DR-7.4.20

Public access facilities shall look and feel welcoming to the public, and not appear as an intrusion into private property.

DR-7.4.21

Natural elements such as logs, grass, shrubs, and elevation separations are encouraged as means to define the separation between public and private space.

DR-7.4.22

New multi-family residential development bordering public space designed for shoreline access shall be at least 3-feet higher than adjacent pathways to provide a visual privacy separation between uses (i.e., the grade separation may not be required for sidewalks on the upland side of a residence).

Amenities

DR-7.4.23

Furniture used in public access areas shall be appropriate for the proposed level of development, and the character of the surrounding district. For example, large urban projects should provide formal benches of the type found in the Main Street Streetscape Design Guidebook (adopted by Ordinance 2143, 1-17- 89); for smaller projects in less-developed districts, simpler, less formal benches, or suitable alternatives would be appropriate.

DR-7.4.24

The City may require the installation of benches, bicycle racks, pet waste, garbage and recycling receptacles, educational signage, and other street furniture at shoreline public access points commensurate with the degree of project impact. Where required,

a.    Benches shall be set back from a walkway or path so pedestrians will still have room to walk by when the benches are in use. At least four (4) feet of unobstructed pathway width should remain where benches are placed on pathways. Benches may be built without backs and should be at least 4 to 5 feet in length.

b.    Provisions for maintenance shall be required as a condition of permit approval.

c.    Educational signage should be used to identify unique natural features, maritime uses and historical landmarks.

Parking

DR-7.4.25

Parking associated with Public Access shall comply with applicable parking requirements in Chapter 8, Specific Uses, Section 8.11. Section 8.11 includes specific development regulations for Vista parking facilities.

Southern Shoreline

DR-7.4.26

Public access pathways in the Urban, Historic Waterfront, Boat Haven and Point Hudson environments should be sited to maximize views of the water and access along the water’s edge.

DR-7.4.27

Improvements within the Historic Waterfront are subject to the design guidelines codified in Chapters 17.30PTMC. Improvements westerly of the ferry terminal should also be reviewed for compatibility and consistency with the urban design guidelines set forth in the Gateway Development Plan.

Kah Tai Lagoon and Chinese Gardens

DR-7.4.28

New development associated with providing access to Kah Tai Lagoon or Chinese Gardens, such as parking and restrooms, shall be located outside of the shoreline jurisdiction area to the extent feasible.

DR-7.4.29

Where public access is to be provided at Kah Tai Lagoon or Chinese Gardens, the following requirements shall apply:

a.    The trail shall be no wider than 8 feet, plus 1-foot gravel shoulders, for a maximum width of 10 feet.

b.    Where feasible, taking into account the location of available public rights-of-way, new trail alignments shall be placed toward the landward edge of wetland buffers, except to provide direct access to the water or viewing platforms.

c.    When within wetlands or their required buffers mitigation will be required per Chapter 6, Environmental Protection, and the City’s Critical Areas regulations.

d.    Restoration/mitigation within the wetland buffer between the trail and the ordinary highwater mark shall typically be in place prior to or in concert with construction of the trail. Exceptions may be granted to allow for planting in the appropriate season for the prescribed plant species.

e.    Other conditions as described in Kah Tai or Chinese Gardens management plans, if adopted.