Rhode Island homeowners have sued over a new law that grants public access to the homeowners’ private beachfront property. The law allegedly violates the Fifth Amendment’s Takings Clause, which prohibits government taking of private property for “public use, without just compensation.”
The Pacific Legal Foundation (PLF) brought suit on behalf of the Rhode Island Association of Coastal Taxpayers (RIACT), “a group of Rhode Island citizens who own coastal residential property in the state’s South Kingston and Westerly region.”
The defendants are the Rhode Island Attorney General, the Executive Director of the Rhode Island Coastal Resources Management Council, and the Director of the Rhode Island Department of Environmental Management.
Defendant Attorney General Peter Neronha took to his personal Twitter account to respond to the lawsuit:
The law, signed on June 26, grants the public access to private beach property within ten feet of the “recognizable high tide line.” Previously, the beach landward of the mean high water (MHW) line was not open to the public, and the beach seaward of the MHW line was public land.
Under the law, property owners still own this ten-foot strip of property abutting the “recognizable high tide line.” According to the suit, the law creates an easement allowing the public to access private land.
This easement “injures RIACT members’ right to exclude non-owners and the privacy, value, use, and marketability of their properties” without compensation.
The law defines the “recognizable high tide line” as “a line or mark left upon tidal flats, beaches, or along shore objects that indicates the intersection of the land with the water’s surface level at the maximum height reached by a rising tide.”
“The recognizable high tide line,” as defined by the law, “may be determined by a line of seaweed, oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics.”
The complaint takes issue with the law’s definition of the “recognizable high tide line”:
[B]ecause the public easement imposed on private beach lands by the Act is bounded by migratory lines (such as the seaweed line), the easement itself is also migratory. This means that, when natural events push the seaweed line farther inland, the public beach area created by the ACT will also move farther inland onto previously unburdened parcels of private, coastal property.
Try to address these concerns, the law excludes an abnormal “recognizable high tide line” due to extreme weather events, “such as those accompanying a hurricane or other intense storms.”
Jeremy Talcott, a PLF attorney, told Legal Insurrection this exemption of extreme weather events is insufficient to address the RIACT homeowners’ concerns:
Using the visible line of seaweed, scum, etc. on the beach necessarily bypasses the true high tide mark. . . . Any or all natural forces that push waves or those visible markers further landward will also move that visible line. Further, the act does not define what constitutes a “departure from the normal or predicted reach of the water’s surface level” or when winds are so “strong” that the visible line should be ignored. This injects further uncertainty into coastal landowners’ rights and potentially subjects large areas of previously private lands to public access.
Despite the movability of the new demarcation line, the law exempts from public use “land above the vegetation line, or on lawns, rocky cliffs, sea walls, or other legally constructed shoreline infrastructure” as well as “amenities privately owned by other persons or entities, including, but not limited to: cabanas, decks, and beach chairs.”
The previous demarcation line, the MHW line, was “derived from an arithmetic average of high-water heights measured over an 18.6-year metonic cycle,” which is the period “after which the Moon’s phases recur on the same days of the solar year,” according to Britannica.
The law’s legislative findings section outlines the legislature’s reasons for abandoning this standard:
The MHW line is not a visible feature that can be seen on the beach like a watermark or debris line. . . . It cannot be determined by the naked eye and requires special surveying expertise and equipment, thereby making it impossible for the general public to know where the line is.
The complaint also cites heightened privacy and safety concerns due to the law. “Access by individuals on otherwise-private lands,” Talcott told Legal Insurrection, “raises the potential for a loss of privacy and safety by prohibiting the ability of landowners to protect the boundaries of their private property.”
The complaint:
The law:
CLICK HERE FOR FULL VERSION OF THIS STORY