Law & Policy Literature Review
Methodology: The objective of this literature review was to gauge coverage of working waterfront issues by the academic community and compile a list of law and policy articles for the Sustainable Working Waterfronts Toolkit. As such, the Law and Policy Workgroup limited its review to the academic literature (journals and law reviews). Articles were only included if they directly addressed or discussed working waterfronts. The literature was searched using Westlaw (legal database), Academic Search Premier, and Google Scholar. The primary search terms were working waterfront, waterfront development, waterfront revitalization, and waterfront access.
Bunce, S., & Desfor, G. (2007). Introduction to “Political ecologies of urban waterfront transformations,” Cities, 24(4), 251-58. (Available online at ScienceDirect.com.)
Bunce and Desfor present a study of contemporary urban waterfront transformations in the context of economic restructuring. The authors are concerned with: the regulation of urban political economies and the re-structuring of governance practices, urban ecological issues and societal relationships with nature, and cultural politics and civil society actions. Bunce and Desfor focus on the political ecologies of urban waterfronts in selected cities in Europe, North America, and the Caribbean.
Cheung, M. (1989). Dockominiums: an expansion of riparian rights that violates the public trust doctrine. Boston College Environmental Affairs Law Review, 16(4), 821-856. Retrieved from http://lawdigitalcommons.bc.edu/ealr/vol16/iss4/5/.
Cheung discusses whether individual boat slips sold or leased to individual boaters who live on the boats long-term, also known as “dockominiums,” are consistent with the public trust doctrine. First, the author examines the role of dockominiums in existing water laws, the riparian rights doctrine, and the public trust doctrine. Cheung concludes that the dockominium concept violates the public trust doctrine by creating private ownership of waters owned by the public. The author reasons that this violation requires the Corps to balance adverse impacts with any public benefits that dockominiums may provide when issuing permits to dockominium structures. Such balancing test, Cheung believes, should generally result in the Corps finding an unacceptable burden on the public trust.
Chiarappa, M. J., & Szylvian, K. M. (2009). Heeding the landscape’s usable past: public history in the service of a working waterfront. Buildings & Landscapes: Journal of the Vernacular Architecture Forum, 16(2), 86-113. Retrieved from http://muse.jhu.edu/journals/buildings_and_landscapes/v016/16.2.chiarappa.html.
Chiarappa and Szylvian write about the history of St. Benton Harbor, a Lake Michigan port city, focusing on the community’s decision to abandon the federally maintained navigable waterway in hopes of revitalizing the community’s economy. The authors use the Benton Harbor example as a means to analyze the role of public history scholarship in fostering historic preservation literacy and history’s wider role in planning initiatives affecting the sustainability of working waterfronts.
Davis, E. C. (2001). Preserving municipal waterfronts in Maine for water-dependent uses: tax incentives, zoning, & the balance of growth & preservation. Ocean & Coastal Law Journal, 6, 141-185. Retrieved from http://mainelaw.maine.edu/academics/oclj/pdf/vol06_1/vol6_oclj_141.pdf.
Davis discusses how effective zoning and a “current use” taxation program could best preserve Maine’s working waterfront. Specifically, how the tax proposal would allow waterfront land and structures associated with commercial fishing to be taxed according to its current use, as opposed to being taxed based on the land’s fair market value. The author examines the potential downfalls of a tax exemption being used alone to preserve working waterfronts and recommends also zoning for specified uses. Davis ends with a case study of waterfront zoning in Portland, Maine, exploring the city’s zoning history and how it has been effective in preserving the working waterfront by actively prohibiting certain uses along the shoreline.
Dion Goodwin, D. J. (2000). Massachusetts Chapter 91: An effective model for state stewardship of coastal lands. Ocean & Coastal Law Journal, 5, 45-73. Retrieved from http://mainelaw.maine.edu/academics/oclj/pdf/vol05_1/vol5_oclj_45.pdf.
Dion Goodwin explains how Massachusetts’ Public Waterfronts Act, which codifies the public trust doctrine, and its implementing regulations effectively preserve public access. This statutory scheme regulates the development and proposed changes to existing waterfront structures, requiring the inclusion of conditions that promote the public’s use of and access to the water. The author first discusses the public trust doctrine as the basis for this statutory scheme. Then, Dion Goodwin explains the major provisions of Chapter 91, which give priority to water-dependent uses and the “zoning-like” regulations that accompany it. Lastly, the author describes the South Boston Seaport project to showcase how strong yet flexible the regulations are in preserving the public’s use of the shoreline.
Goodwin, R. F. (1999). Redeveloping deteriorated urban waterfronts: The effectiveness of U.S. coastal management programs. Coastal Management, 27, 239-69. (Available online at tandfonline.com.)
This study documents the coastal states’ progress in assisting waterfront communities in achieving the “urban waterfront revitalization” goal of the federal Coastal Zone Management Act (CZMA). The three most common techniques among the fourteen most effective states in achieving waterfront revitalization were: partnerships with local communities to actively promote their financial and technical assistance programs, conducting an inventory of coastal communities and targeting the specific urban waterfronts that need to be revitalized, and delegating this “urban waterfront revitalization” responsibility to a networked specialized agency. Goodwin also discusses the role that state coastal zone management plans play in achieving waterfront revitalization, the study’s overall challenges in assessing the effectiveness of these state plans, and what tools each state’s CZM plan uses and the effectiveness of such tools.
Hagerman, C. (2007). Shaping neighborhoods and nature: Urban political ecologies of urban waterfront transformations in Portland, Oregon. Cities, 24(4), 285-297. (Available online at ScienceDirect.com.)
This study details the planning and redevelopment of historic industrial waterfronts near downtown Portland, Oregon. Specifically, Hagerman discusses how and why Portland’s economy is no longer centered around its waterfront and how the waterfront has been revitalized by expansion of the downtown area and construction of condos, restaurants, offices, and galleries. Hagerman suggests that these remade waterfront districts must be considered in order to shape expectations and consumption of the new neighborhoods. For example, waterfront ecological restoration, urban livability, and sustainable technologies all appeal to the urban imaginaries of planners, developers and residents while potentially displacing other concerns or questions. Public–private partnerships and strategic rescaling suggest new governance regimes are articulated in the visioning, planning and development of these districts, simultaneously reconstructing neighborhoods and ecologies. Hagerman concludes that careful criticism of the city’s production of new urban spaces should be pursued to avoid foreclosing opportunities for articulating alternate urban futures.
Hall, K. R. (1990). Dockominiums: In conflict with the public trust doctrine. Suffolk University Law Review, 24(2), 331-350. (Available online at http://www.law.suffolk.edu/highlights/stuorgs/lawreview/.)
The dockominium concept generally refers to marinas that sell individual boat slips to boaters, providing purchasers with an exclusive right to use the slip. Purchasers also have a joint interest in all common areas and facilities of the marina. Hall examines and explains the conflict between the dockominium concept and the public trust doctrine, discussing Rhode Island’s public trust and riparian rights case law as an example. Then, the author looks at the policies for regulating dockominiums currently used in Connecticut, Massachusetts, and Rhode Island. Lastly, Hall recommends halting dockominium growth and preserving public access to the waterfront through the cooperation and joint efforts of government officials, marina owners, and the general public combined.
Hershman, M. J. (1999). Seaport development and coastal management programs: A national overview. Coastal Management, 27, 271-90. (Available online at tandfonline.com.)
Hershman reports on one part of the National Coastal Zone Management Effectiveness study. The national study addressed how well state coastal management programs (CMPs) were implementing various goals of the Coastal Zone Management Act (CZMA). Seaport development was chosen to illustrate how well the states were managing coastal-dependent economic uses, one of the concerns of the CZMA. From a national perspective, port development has been given only limited attention by state CMPs. Hershman examines the 12 “port-active” states’ CMPs, meaning these states identified areas for port development or paid special attention to ports in the regulatory process. Virtually all have policies specific to commercial seaports; employ a variety of strategies for guiding port development, including regional plans, master planning, local zoning, and port-specific environmental criteria; are active in technical assistance including grants, staff assistance, and engineering and environmental support. The author concludes with the organizational learning that is occurring in CMPs and port organizations as a result of their interaction and how this learning results in the improved achievement of the multiple objectives of the CZMA.
Hershman, M. J., et. al, (1999). The effectiveness of coastal zone management in the United States. Coastal Management, 27, 113-138. (Available online at tandfonline.com.)
Hershman and coauthors undertook the Coastal Zone Management Effectiveness Study between 1995 and 1997 to determine how well state coastal management programs in the United States were implementing five of the core objectives of the Coastal Zone Management Act (CZMA). The five core objectives studied were: 1) protection of estuaries and coastal wetlands; 2) protection of beaches, dunes, bluffs and rocky shores; 3) provision of public access to the shore; 4) revitalization of urban waterfronts; and, 5) accommodation of seaport development (as an illustration of the policy to give priority to coastal dependent uses). The authors provide an overview of the purposes of the study, the methodology used, the summary findings of each study, and overall conclusions and recommendations of the study team. Ultimately, the authors find state coastal programs to be effective in addressing the five CZMA objectives examined, but this conclusion is based on very limited information about program outcomes.
Hoffman, K. (1999). Waterfront redevelopment as an urban revitalization tool: Boston’s waterfront redevelopment plan. Harvard Environmental Law Review, 23, 471-545. (Available online at LexisNexis.)
Hoffman discusses “waterfront redevelopment” as a tool for cities to use in revitalizing their urban areas. Waterfront redevelopment efforts generally involve revitalizing rundown areas, renovating existing structures, and displacing lower to middle-income population with higher-income population. The author explores Boston’s waterfront redevelopment plan and its relation to the public trust doctrine, Chapter 91 licensing procedures, and zoning laws. Hoffman concludes that successful waterfront redevelopment programs should encourage a variety of uses and activities and should also benefit all socioeconomic levels of the city’s population.
Hou, J., & Rios, M. (2003). Community-driven place making: The social practice of participatory design in the making of Union Point Park. Journal of Architectural Education, 57, 19-27. Retrieved from http://onlinelibrary.wiley.com/doi/10.1162/104648803322336557/abstract.
Hou and Rios discuss how grassroots efforts in community revitalization are reshaping the public processes and institutional framework involving the design and development of public space. Treating the public realm as both a physical space and an expression of relationships between multiple institutions, organizations, and individuals, this study examines the social and political epistemologies and processes behind the creation of a waterfront park in Oakland, California. The authors also present a framework of community-driven practice in the making of the public realm, based on converging theories of social movements and planning and a critique of the current participatory design model.
Hurley, A. (2006). Narrating the urban waterfront: The role of public history in community revitalization. The Public Historian, 28(4), 19-50. (Available for download at jstor.org.)
Hurley discusses how urban waterfronts have become effective settings for community-based public history projects, using St. Louis as an example. The author examines the trend towards grassroots public history in the context of broader urban redevelopment strategies and identifies some of the difficulties encountered in constructing more socially inclusive historical narratives. Hurley also highlights the challenge of balancing internal community-building goals with demands of heritage tourism and suggests the enormous potential of grassroots public history to connect the residents of diverse metropolitan areas more meaningfully to the urban landscape and to one another.
Kotval, Z. & Mullin, J. R. (2010). The changing port city: Sustainable waterfront revitalization. Journal of Town & City Management, 1, 23. Retrieved from http://www.henrystewart.com/resources/1/jtcm/KotvalandMullin-2.pdf.
Kotval and Mullin discuss the transformation of downtown waterfront communities and explore the tension between port authorities and local government. The authors also examine the differences between the United States and Europe regarding port revitalization and provide key factors that are important for the sustainability for port communities. Finally, the authors discuss the research-supported planning principles required for 21st century port communities to thrive: awareness of national and international trends; an emphasis on history and culture; careful master planning; adoption of urban design guidelines and zoning regulations; complementary mixed uses and preservation of a working waterfront; a visual and physical connection between the waterfront and the downtown area; integration into the public transport system; effective traffic management; environmental cleanliness; marketing and promotions; and public-private partnerships.
Krausse, G. H. (1995). Tourism and waterfront renewal: Assessing residential perception in Newport, Rhode Island, USA. Ocean & Coastal Management, 26(3), 179-203. (Available for download at ScienceDirect.com.)
Krausse examines the perception of harbor residents on tourism and waterfront redevelopments in Newport, Rhode Island. Survey results indicated that by and large the waterfront community perceives the current traffic conditions, inadequate parking, lack of privacy, and commercial intrusion into neighborhoods to be the consequences of increased tourism. Negative attitudes towards waterfront renewal are associated with perceived difficulties in having access to the water, lack of affordable housing, continued marine pollution, and the proliferation of non-water-dependent uses in the harbor. Conversely, several favorable reactions raised by residents included increased property values, successful historic preservation, and the participation in tourist-related events and amenities. Despite their geographic proximity to the business district, the development activities on the waterfront and the opportunities generated by tourism, few residents feel they have benefited economically from these advantages. Currently, the political climate in Newport is such that a comprehensive harbor management plan can become a reality. Krausse expresses hope that residents will then have an opportunity to incorporate their issues into policies of the plan.
Killerlain Morrison, K., & Snow-Cotter, S. (2008). Toward more integrated ocean governance in Massachusetts: A progress report. Coastal Management, 36, 412-430. (Available for download at tandfonline.com.)
Killerlain and Snow-Cotter discuss ways in which Massachusetts’ ocean management process could be improved. The authors review past efforts under the Public Waterfront Act and Ocean Sanctuaries Act, propose six key components of a planning approach, discuss recent legislative history, and reflect on Massachusetts’ experience to date through Cicin-Sain’s 1990 article, “Factors Conducive to Ocean Management Initiatives.” The Cicin-Sain article provides four major variables that affect ocean management initiatives: 1) degree of severity of ocean and coastal governance problems and the role of focusing events, 2) political readiness, 3) governmental relations, and 4) state ocean heritage and popular opinion variables.
Novak, S. N. (2011). Florida’s forgotten ports: Will the small ports of Florida survive the rise of the condo? Florida Journal of International Law, 23, 103-123. (Available for download at LexisNexis.)
Novak discusses all of Florida’s ports, focusing on smaller ports and their likelihood of being taken over by the private sector due to increased tourism and real estate industry demands. The author discusses legislation already in place to protect ports, but also explains its inadequacies in protecting certain smaller ports. To effectively protect these smaller ports, Novak ultimately recommends that Florida: (1) complete a comprehensive statewide inventory of all Florida’s ports to identify at-risk ports, and (2) determine what is necessary to bring these at-risk ports back to stability. Novak identifies two key elements in adequately protecting these smaller ports: an active local population and legislation designed specifically to protect ports, like establishing port authorities for these smaller at-risk ports.
Portman, M. E., Jin, D., & Thunberg, E. (2009). Waterfront land use change and marine resource conditions: The case of New Bedford and Fairhaven, Massachusetts. Ecological Economics, 68, 2354-2362. (Available for download at ScienceDirect.com.)
Portman and Thunberg examine the interactions between changes in fish stocks and waterfront land uses in the New Bedford/Fairhaven area using parcel-level data and geographic information system (GIS) tools. The authors also discuss how essential it is to understand these interactions in order to effectively gauge long-term and cumulative impacts of fisheries management on coastal fishing communities. Logistic regression models were used to assess the impact of changes in marine resource abundance on waterfront land uses. Although land use decisions are influenced by many complex market and regulatory factors, this study detected a significant relationship between fish stock conditions and coastal land uses.
Portman, M. E., Jin, D., & Thunberg, E. (2011). The connection between fisheries resources and spatial land use change: The case of two New England fish ports. Land Use Policy, 28, 523-533. (Available on ScienceDirect.com.)
This study examined interactions between targeted fish populations, aspects of the fishing industry and land use changes along two ports in New England. By tracking changes in land uses over a two-decade period using parcel level data and geographic information system (GIS) tools, the authors examined the relationship of changes in species biomass, landings and other fishing industry variables to community spatial change. Using logistic regression models, the authors assessed the impacts on essential infrastructure for continued fishing industry activity. The findings have implications for land use policy that the authors suggest should accompany efforts being made to rehabilitate fish stocks, ensuring that current marine infrastructure will remain in place to support the fishing industry if and when species rebound.
Rizzo, C. (2002). Protecting the environment at the local level: NYC’s special district approach. Fordham Environmental Law Journal, 13, 225-258. (Available on LexisNexis.)
Rizzo examines New York City’s “Special District” environmental zoning scheme and the challenges and criticism it has faced. NYC established four categories of special districts in order to preserve natural resources and open space, one of which being Special Natural Waterfront Areas (SNWAs). SNWAs were created pursuant to the Waterfront Revitalization Plan to protect the last three remaining intact waterfront ecosystems of the city. Rizzo concludes with the challenges this special district approach has faced and proposes solutions. The author’s criticism of the SNWAs is that they are not included in New York’s Zoning Resolution.
Sairinen, R., & Kumpulainen, S. (2006). Assessing social impacts in urban waterfront regeneration. Environmental Impact Assessment Review, 26, 120-135. Retrieved from http://www.ci.uri.edu/CIIP/FallClass/Docs_2006/UrbanWaterfronts/Sairinen_Kumpulainen_2006.pdf.
Sairinen and Kumpulainen identify the social impacts of urban waterfront regeneration through four different dimensions of social impacts in urban waterfront planning: resources and identity, social status, access and activities and waterfront experience. These four social dimensions refer to the different ways of experiencing and using the edges of the sea, lake or river to make an understanding of their qualities to the community. The authors then analyze some basic features of three different newly built waterfront areas in Helsinki based on post-evaluation.
Salkin, P. E. (2005). Integrating local waterfront revitalization planning into local comprehensive planning & zoning. Pace Environmental Law Review, 22(2), 207-230. Retrieved from http://www.governmentlaw.org/files/PELR_Integrating_Local_Waterfront_Revitalization.pdf.
Salkin discusses local waterfront revitalization plans as an effective regulatory tool to protect, preserve, and promote sustainability throughout the coastline. The author first discusses the federal Coastal Zone Management Act and its impact on local comprehensive land use planning, then discusses the state of New York’s Coastal Management Plan and its requirements of consistency and local land use planning. This article also discusses the coordination and consistency between New York’s comprehensive land use plan and state-funded local waterfront revitalization plans and other local plans developed under state coastal zone management plans. Salkin concludes with recommendations on how New York should integrate such plans and enforce local waterfront revitalization plans.
Smythe, T. C. (2010). Can coastal management programs protect and promote water-dependent uses? Coastal Management, 38(6), 665-680. (Available online at tandfonline.com.)
This two-part study first explains the public costs incurred when water-dependent uses are converted, including loss of access, loss of jobs, and loss of traditional working waterfronts. Smythe investigated the role of five coastal management programs in the northeastern United States in managing, monitoring, and protecting water-dependent uses. First, coastal managers in Massachusetts, Rhode Island, Connecticut, New York and New Jersey were interviewed to assess the conversion problem. Second, follow-up interviews were conducted with coastal managers and local planners in Connecticut, New York, and New Jersey to gain greater insight into the role of coastal management programs and local governments in managing and promoting water-dependent uses. The author presents select findings from this study and discusses recommendations for improving the capacity of coastal management programs and local governments to manage water-dependent uses for the benefit of the public.
Snyder, R. (2011). Toward a working-waterfront ethic: Preserving access to Maine’s coastal economy, heritage, and local seafood. Maine Policy Review, 20, 79-86. Retrieved from http://digitalcommons.library.umaine.edu/mpr/vol20/iss1/15/.
Snyder discusses Maine’s creation of the Maine Working Waterfronts Coalition and the multi-generational tools the Coalition created in order to preserve their working waterfronts: current use taxation for commercial fishing wharves, purchasing of development rights off property supporting commercial fishing, and community-supported fisheries (CSFs). The author also documents the positive results of these three tools used in Maine.
Vallega, A. (2001). Urban waterfront facing integrated coastal management. Ocean & Coastal Management, 44, 379-410. (Available online at ScienceDirect.com.)
Vallega discusses the trends of waterfront development in the context of the urbanized coastal areas, and the possible integration between waterfront organization and integrated management of the coastal area. First, the author considers the external environment influencing waterfront evolution, focusing on global change, the globalization of economic systems, and geopolitical change. The author looks at the diffusion of waterfront revitalization programs in the context of the urban growth of coastal areas, focusing on the increase of megacities and proto-megacities. The focus then shifts to the waterfront itself considering the historical triggers for waterfront revitalization plans. Vallega ultimately attempts to answer two questions: 1) how the waterfront may be designed to be consistent with sustainable development, in that acting as a top rank spatial system conforming to integrated management of the coastal area; and 2) whether and how the waterfront could act as a leading spatial system to carry out integrated management of the coastal area within which it is located.
Wagner, K. J. (1997). Geneva Lake dockominiums: An exercise of riparian rights in violation of the public trust doctrine. Wisconsin Environmental Law Journal, 4(2), 243-256. (Available online at LexisNexis.)
Wagner discusses how dockominiums are in direct conflict with the Public Trust Doctrine and riparian rights. The author defines dockominiums as a collection of boat slips in the form of a marina premised on a condominium theory, meaning individual owners can purchase ownership interests in a dockominium that gives them exclusive rights to occupy a boat slip space and the right to utilize the common elements held by the condominium association. Wagner concludes with an analysis of Wisconsin precedent allowing for dockominiums to be developed along Lake Geneva.
Wakefield, S. (2007). Great expectations: Waterfront redevelopment and the Hamilton Harbour waterfront trail. Cities, 24(4), 298-310. (Available online at ScienceDirect.com.)
Wakefield examines the waterfront revitalization in Hamilton, Ontario, Canada, a city where heavy industry continues to dominate the local economy. The author explores the planning and development of the Hamilton Harbour Waterfront Trail created in 2000, just one of the city’s many recent improvements. The author discusses the trail’s access and inclusiveness issues and the trail’s linkage to broader discourses of environmental and economic revitalization. This discussion reveals how waterfront development may be locally situated, but also molded by broader discourses and trends.