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Published in The Providence Journal (August 1, 1997)

It’s summertime and as Rhode Islanders flock to the shore, state government is once again trying to increase public access to our coastline.

Unfortunately for waterfront property owners, such increased access could come at the expense of their property rights.

Recall two years ago when legislation was proposed to increase public shoreline access by expanding the State shoreline boundary further landward along the entire coast. This may have benefited the general public but it would have taken private property from waterfront owners without offering any compensation. Fortunately, that legislation died in the General Assembly.

This year, the Coastal Resources Management Council (“CRMC”) proposed its own regulations which are designed to increase public access to the shore. Under these regulations, new or altered commercial and industrial development, new or expanded marina projects, and any filling of tidal waters must include a plan for public access on the property.

A waiver from the requirements may be granted if the applicant can demonstrate that no significant public access impact will occur as a result of the proposed project.

On its face, this sounds relatively benign. If your project limits or restricts public access, your development proposal must include public access to offset the limitation. For example, if you block a public path to the beach you will have to provide comparable beach access somewhere else on the property.

However, the devil is in the details when regulatory agencies are concerned.

Consider these implications:

As originally drafted, public access was defined to include not only physical access but visual access as well. That means that if you build a structure which blocks the view of the water, you would have to compensate. How? The draft regulations suggest as an example “innovative architectural design”. Translation: the draft regulations would be broad enough to allow the CRMC to tell you what design would be acceptable for your building.

The draft regulations also suggested other more intrusive ways to compensate for loss of “the ability to view the coast and shoreline area without obstruction by structures”. These include viewing platforms, observatories, and scenic drives located on the private property in question. In other words, as a condition of issuance of the permit needed for construction, the draft regulations could be interpreted to require a viewing platform or observatory on private property open to the public if a property owner has impeded an unobstructed coastal view.

Of course, one of the fundamental sticks in the bundle of private property rights is the ability to exclude others from your property. These regulations could eliminate that right for those developing commercial, industrial and marina projects.

And therein lies the conflict. Giving the public greater shoreline access could be done in ways which infringe on private property rights.

What these draft regulations could have meant is that a government regulator was going to determine, for each new or altered commercial or industrial projects, or new or expanded marina projects, how it is going to extract a requirement of direct public access on the property to compensate for loss of unobstructed visual access, since the construction or enlargement of any structure could, by definition, be argued to affect the ability to view the coast and shoreline without obstruction by structures.

By seeking to protect “visual access,” the CRMC could virtually guarantee more expense, more contentiousness and more controversy in coastal permitting, not to mention the further erosion of coastal property owners’ rights.

Moreover, to the extent that the regulations require public access on private property, as through a viewing platform or observatory, to address loss of visual access, the draft regulations may well overstep constitutional bounds under the “just compensation” clause, which requires the state to pay just compensation for a taking of property for a public purpose.

The U.S. Supreme Court has suggested that this may only be appropriate when the state agency has the authority to deny the permit in its entirety if visual access is adversely affected, certainly an open question at best in Rhode Island, and then only if the relief ordered, such as an observatory on private property, is “roughly proportional” to the harm to be prevented (i.e., the impact on visual access).

Moreover, the Rhode Island Supreme Court, which has historically been protective of property rights, handed down a decision just last month which resulted in damages against a municipality which will likely exceed more than $1 million because certain municipal officials impermissibly violated the property rights of owners of land held for development.

But even if the draft regulations could pass constitutional muster, this means only that the activity is not constitutionally prohibited. It says nothing about whether the activity unfairly deprives property owners of rights, is heavy-handed, overly intrusive, or simply bad policy. Justice Clarence Thomas had observed in a recent U.S. Supreme Court decision: “The Federal Constitution does not prohibit everything that is intensely undesirable”.

While the goal of fostering public access to the shore is noble, when such access is defined to include “visual access”, we should remember that visual access, like beauty, is in the eye of the beholder. Do we really want government making that determination?

Many would say no. It appears that government, or at least the CRMC, does not want to be in this position either. When CRMC staff considered this issue prior to public hearing on the draft regulations, they recommended to the council revision of the regulations to prevent an overbroad interpretation which could adversely affect property owners.

At its public hearing, the council adopted revised regulations which require public access plans where public access is impeded by new or altered commercial and industrial development, new or expanded marina projects, or filling of tidal land. The Regulations as adopted provide that visual access is a factor which may be considered in developing public access plans, but they avoid a host of problems by not defining public access to include visual access.

Thus, the CRMC has wisely opted to balance the public’s rights to the shore with private waterfront property owners’ rights. Such a balance is consistent with the Rhode Island Supreme Court’s decisions balancing rights between the public and riparian property owners.

Our shore should continue to be a place of relaxation and enjoyment, not a battleground of competing rights. CRMC moved in the right direction in the adoption of its new Regulations.

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