SOUTH KINGSTOWN, R.I. — Exactly defining public access along beaches — and other areas around Rhode Island’s coast — is a complex undertaking requiring some serious study, said Virginia Lee, who has studied the issue and is an author of guides to public access to shorefront areas.
But John Boehnert, coastal property lawyer and author of a book on waterfront real estate, maintains that the issue is more a property rights matter than a public access infringement. The current definition for public access works well, he said.
This divide between public and private property rights has riled owners of homes whose values often approach or topple $1 million while angering a less wealthy group who want access to as much of the state’s coastline as law allows. For them, it’s the entire shoreline.
Some advocates for unfettered shoreline use say that an old tidal measurement is outdated and the public right-of-way should be as simple 10 feet into the sand from the water’s edge.
Lee said, however, that may not work easily. There is much complexity involving state and federal regulations regarding use of public trust waters that can include tidal basins, rocky shores, historical shorelines and tidal rivers among a variety of natural resources.
The public trust doctrine requires that state and federal governments not disrupt public use of designated resources for the benefit of the people, according to the Water Education Foundation.
“It is important to know that over time, boundaries for public trust waters change. With sea level rising, it’s even more important that it still be a shifting line and this adds to the complexity. People are not often used to dealing with all of this,” said Lee.
She is author of Public Access to the Rhode Island Coast” and “Providing Public Access to the Shore: The Role of Coastal Zone Management Programs.”
“It affects everywhere the tide reaches,” said Lee, former U.S. Program Manager, Coastal Resources Center in the Graduate School of Oceanography at the University of Rhode Island.
“Rhode Island was wise in saying it’s not going to draw a line. It’s (tidal line) going to change and it’s going to shift as the shoreline shifts,” she said.
And that’s where Boehnert, author of “Buying, Owning, and Selling Rhode Island Waterfront and Water View Property,” sees things a little differently.
“When you look at what is precipitating this, it is sort of this general claim “We have this right” throughout the general coast,” said the Providence-based lawyer whose practice involves real estate and environmental law.
“I think the current measurement works fine. You can measure it with precision. People buy property and they want to know where their boundary is and you can certainly determine that so it is not subject to the ebbs and flow of the tides.”
The Supreme Court when last weighing in about the complexities, set the public access boundary to be the area below the mean — the average — high water line over 18.6 years. It gave guidance to the state constitutional provisions that guaranteed a right to use the shoreline, but lacked other defining explanations about that use.
The Rhode Island Supreme Court tried to balance public use of the shorefront with rights of owners of properties along that shorefront. It acknowledged that the lines set are not visible to the naked eye, but can be measured with calibrated scientific instruments.
The court also said, “Additionally, we feel that our decision best balances the interests between littoral owners,” who are those on the shorefront, “and all the 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,” the court wrote.
Boehnert said, “So whatever someone thinks, or wishes, the boundaries should be at the shore, we are a nation of laws, and we are supposed to deal with what conforms to law, and as to the public-versus-private boundary line at the shore, that means the mean high tide line.”