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Published in The Providence Journal – Bulletin (July 15, 1994)

Waterfront property owners in Rhode Island may be forgiven for believing they are under assault from State government.

This belief stems from the reality that they own what the public wants to use, without paying for the privilege of such use, and what the State wants to regulate, without paying for the burdens of such regulation.

Consider proposed legislation now pending in the General Assembly, which would authorize the Coastal Resources Management Council (CRMC) to establish a public access program across the Rhode Island shore.

The proposed legislation properly notes that our tidal shorelands are extremely valuable resources which should be used and enjoyed by all citizens of the State. Accordingly, ensuring access to such shorelands is not only an appropriate governmental role, but should be a governmental responsibility as well.

The proposed legislation does more than authorize such public access, however. It literally changes the boundary between public property and private property along the entire coastline of Rhode Island. It would authorize public access across formerly private property.

It does so by defining the boundary between public and private property along the shore as the “seaweed line of the moon high tide.” The problem with this definition is that it changes the boundary between public property and private property as established by the Rhode Island Supreme Court in 1982.

In that decision, our Supreme Court was confronted with an alleged trespass on private shorefront property. It was obviously necessary to establish the property boundary line in order to make out the elements of a trespass. In setting that boundary, the court noted that it was establishing the boundary “at which the land held in trust by the State for the enjoyment of all its people ends and private property belonging to littoral owners begins.”

The property owner in that case asserted that his boundary was the mean high water line, while the alleged trespassers asserted that the shore was public property further inland, up to the high water mark as indicated by the reach of an average high tide and by drifts and seaweed along the shore.

In a thoughtful and carefully considered decision, our Supreme Court established the boundary between public property and private property at the shore as the mean high tide, which it noted is “the arithmetic average of high water heights observed over an 18.6 year metonic cycle”, and which is measurable with precision.

As the Court reasoned:

“We feel that our decision best balances the interest between littoral owners and all people of the State. Setting the boundary at the point where the spring tides reach would unfairly take from littoral owners land that is dry for most of the month. Similarly, setting the boundary below the mean high tide line at the line of the mean low tide would so restrict the size of the shore as to render it practically nonexistent.”

By proposing a boundary line more invasion of private property than the boundary our Supreme Court found to be established at common law, this proposed legislation, if enacted, would actually constitute a “taking” of private property by State government. Under our State and Federal Constitutions, “just compensation” must be paid for such a taking. Ironically, this very point was recognized at the 1986 Constitutional Convention, when there was significant sentiment to change the court annunciated boundary between public and private property to increase public property by moving the boundary landward. The likelihood of a court ordering just compensation for such a change resulted in the abandonment of this proposal.

If the proposed legislation does pass the General Assembly, it seems inevitable that there will be hundreds if not thousands of lawsuits brought by waterfront property owners to restrain general public passage across their property until the State condemns and pays for an easement across their property. The combined cost to private party litigants, as well as to the State, would likely run into the millions of dollars.

Although this proposed legislation could be amended or defeated, consider also regulations with the force of law which were recently enacted by the CRMC and which severely restrict private property owner’s use of waterfront property.

The regulations, adopted in March of this year, establish “coastal buffer zones” on waterfront property. The buffer zones are land adjacent to the shoreline which must be left in a natural vegetated state.

Coastal buffer zones, which formerly were imposed by CRMC on a case by case basis, now will apply to all new residential construction. The size of the buffer, which is measured landward from the inland edge of the most inland coastal features, varies depending upon the size of the property and the classification of the water on which it fronts. Larger residential properties have deeper buffers. Coastal features include cliffs, banks, wetlands, beaches and dunes. Because these coastal features can be as much as 50 feet or more from the waterline, a buffer could extend inland from the waterline several hundred feet on some properties.

For currently undeveloped property, the buffer zones could actually preclude development, or limit development to a small part of the property. This obviously would have a profound effect on the market value of these properties.

For already existing residential property, a buffer zone would not be imposed unless the homeowner sought to expand the footprint of its house, or modified or expanded an existing septic system. The size of the buffer zone imposed in such cases would be dependent upon the expansion involved.

Buffer zones will apply to commercial and industrial property under the new regulation on a case by case basis.

Because buffer zones must be left in a natural state, they generally cannot be disturbed by the erection of structures or even by clearing for a patio or barbecue. Even the clearing of paths to the water is regulated, as is the establishment of view corridors to the shoreline.

The regulations do indicate some flexibility in their administration. For example, the CRMC has said it may grant permission for limited clearing, such as for boat storage or the placement of a picnic table, or for the construction of small structures, such as a tool shed. Additionally, a property owner can seek a variance from the regulations, although the standards for a variance are difficult to meet and the process could involve engaging legal counsel or consultants.

How these regulations will be administered by CRMC is an open question. However, it is unquestioned that waterfront property owners have far less control over their property as a result of these regulations.

Other intrusions on private property rights at the shore include the unsettled status of the public trust doctrine in this State, and the claim by some elements of state government that all land reclaimed from the sea by filling below mean high tide belongs to the State, even if held in private ownership for generations. Under such a claim, no compensation would be paid to those who thought they “owned” the land where their homes or businesses may be located, which they may not have even realized was reclaimed from the sea in the last century or earlier.

Such conflicts will no doubt continue as the State seeks to both protect and allocate our scarce waterfront resources.

In approaching these issues, State government should be mindful of the U.S. Supreme Court’s admonition that governments may not pursue policies of “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” When government plunders, rather than protects, private property rights, everyone will soon be the poorer for it.