Many people I know dream of owning that waterfront property that benefits from a beautiful sunset over the ocean, lake or river. In fact, a client recently inquired about a great waterfront hotel site, and he was somewhat taken aback when I asked about the implications of the public trust doctrine. For those of you who have not studied Roman and English common law, this doctrine applies to all properties that were submerged or were tidelands (lands between mean high tide and mean low tide) that existed at the time that California was admitted to the United States in 1850. Such lands belong to the public and must be used for navigation, commerce and fishing.
With this historical backdrop, the private hotel project that my client was contemplating became a bit more complicated, especially after he learned that the hotel would need to include certain elements allowing for public access to the waterfront. I explained that the California State Lands Commission (the “Commission”) has the ultimate jurisdiction over public trust lands, although such jurisdiction may have passed to a municipality or port authority long ago. Notwithstanding the transfer of jurisdiction, the Commission still retains oversight to make sure that the city or port authority does not stray from the concepts of this common law doctrine.
Due to this public trust doctrine, many “private” waterfront projects include public fishing piers, walkways and other public elements. The design of this simple hotel may now entail a committee of experts who will define what is essential to benefit the public. Because the client now has some perspective, he can anticipate the need for waterfront walkways, bike paths and nature trails. He can also make significant adjustments to the timeline and budget to reflect the need to get additional governmental approvals along the way.
So next time you consider a waterfront project and review of the title information notes something regarding the public trust doctrine, you will have some basis for knowing that the cost of the project on the ocean, lake or river may be higher than you feared, especially after you realize that the public is your partner in the project.
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