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Shoreline access bills in rough waters as divisive issues linger

The debate over where in the sand the public’s right-of-way begins and private property ends has been a contentious one in Rhode Island for years and despite the topic coming up every summer, state lawmakers are no closer to a definitive decision this legislative season.

Posted on April 19, 2023

Beach access for yet another year taunts state legislators struggling to find votes for a measure that will impact owners of high-priced homes whose sandy front yards could get unwanted visitors.

Two legislators are championing proposed laws that attempt to define where in the sand public right-of-way beachfront begins and private property ends. One lawmaker also suggests punishing homeowners for posting misleading “Keep Out” and similar signs.

Last year a line-in-the-sand bill passed the House unanimously in May, but the Senate immediately set it aside because of other priorities. Revised proposals this year will get more consideration, say legislators supporting them.

One bill’s sponsor, state Rep. Terri-Denise Cortvriend (D-Dist. 72, Portsmouth) has said the approach she’s bringing anchors on a recognizable six-foot distance above a high-tide mark.

The state constitution gives the public the right to occupy land and water nearest the shore, but the exact place is in dispute because tides and erosion are constantly shifting it.

Another bill from Sen. Mark McKenney (D-Dist. 30, Warwick) uses a “vegetation” line that is more expansive, but could be a “moving line” because of changes in vegetation in the sand.

Cortvriend said this week, “Philosophically, I have no problem with the vegetation line but I do have concerns as to whether or not it would stand up to a constitutional challenge. I am supportive of the other small differences.”

In addition, Cortvriend added a little spice to the debate this year.

She proposed another bill to penalize any homeowners attempting to mislead beachgoers that all their property is private without acknowledging the public right-of-way along its shorefront.

Some pricy beachfront homes, notably in the Green Hill section of South Kingstown and elsewhere, have had signs warning “No Trespassing,” and “Keep Out – Private Beach.”

While a portion of the property is subject to private property rights, the area closest to the shore is not, but these signs misleadingly indicate it is private.

Cortvriend sponsored a law — a proposal put on hold late last month — asking the Attorney General’s Office and local police departments to consider issuing fines to property owners with these kinds of signs.

Governments can regulate sign language in those circumstances without running afoul of free speech rights.

“The First Amendment does not forbid a state or municipality from banning and penalizing the posting of signs that mislead the public into thinking that a public right of way is legally closed to the public when that is not, in fact, the case,” said Professor Lawrence Tribe, a First Amendment expert at  Harvard Law School.

“Freedom of speech does not include freedom to deceive others into giving up their rights as members of the public,” he told The Independent.

Attorney Joseph V. Cavanagh, managing partner in Blish & Cavanagh and former partner at Edwards & Angell in Providence, agreed.

“However, just as thorny, though, is where the mean high-water mark is,” he added about having signs to note the public right-of-way event the state cannot define for a reasonable person.

Cortvriend’s sign bill might be slightly ahead of the process and laws to set that clear line in the sand for public shoreline access or right-of-way, but it shows the increasing frustration of beach rights advocates.

“Obviously not all bills are passed the first year they are introduced,” she said, a sentiment relating not only to her sign-posting bill, but the General Assembly’s repeated efforts — sunk in failure so far — to define this shoreline public right of way.

Current Rule

Established Rhode Island law requires a tricky calculation of measuring high-tide marks for 18.6 years to find the average on any spot of sand. Carrying an official survey pinpointing on maps those areas is not usually in visitors’ beach bags with sunblock, hats and books.

It is that average that determines this public right-of-way.

COVID invited more outside strolling on beaches and the sleeping issue awakened in 2019 with a homeowner asking for the arrest of a Charlestown environmental advocate seeking to defy a claim that the entire beach is off limits.

Charges were later dropped, but the issue has continued to live on.

The debate environmentalists want is what they say the state constitution promises and to have it clearly defined. Opposing them are beachfront property owners who believe they paid hundreds of thousands of dollars — if not over a million or more — for an entire beachfront.

In South County, upscale development continues of expensive — sometimes large — homes for summer or permanent residences in Charlestown, South Kingstown, Narragansett and Westerly.

This invites the inevitable collision between old customs and new expectations never foreseen when beach shacks lined these beaches and no one cared who walked out front or put down an umbrella and chair to enjoy the seacoast.

Legislative leaders, so far, have not put their muscle behind measures to legally establish a defined line.

Last spring Senate aide Greg Pare, when addressing the doubtful dealing with the issue, called it “complex (and) involves property rights, potential legal challenges, financial considerations and other concerns.”

Already, homeowners’ advocates have been threatening to sue towns and the state for “taking their property” without just cause or legal right.

Even a one-time defining of the right to six or an earlier proposed 10 feet above the high-tide mark — except across a bulkhead or front yard — poses problems.

It opens potential future myriad interpretations when the need for modifications arise as tidal, coastal and climate changes occur, say officials and environmental advocates.

The new line could even encroach on private property at some point and would pose to legislators and courts even more complex issues around property rights, say experts.

Surrounding towns face a problem from parking by people accessing the beach. That also is an issue the Senate would want to consider, said local state senators.

Having the right to walk along the beach is different than the right to enter the beach. This is where a bill about a public right-of-way adds yet another twist to the problem.

Many remain unmarked, and others border property of beach cottages now turned into expensive summer homes whose owners don’t want either the public or any parking near them and their transformed shanties.

Local towns, such as Narragansett, Charlestown, South Kingstown, North Kingstown and East Greenwich, last year reported increased interest and complaints about various public rights of way, marked, unmarked and needing improvement.

They all have set up public panels to determine boundaries and what slices of land belong to the town or public trust and what is owned by a private property owner.

Looking at the overall picture this year, Pare, a spokesman for Senate President Dominick J. Ruggerio, offered a little encouragement compared to last year.

“The Senate president is not prejudging the legislation,” he said. “It will undergo the normal committee vetting process for a thorough review of all aspects and ramifications.”

“We did not have time to conduct a thorough review last year because we did not receive the House bill until very late in the session and there was no Senate version,” Pare said.


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