Designating Rights of Way to the Shoreline a Lengthy, Cumbersome Process
October 8, 2023
WAKEFIELD, R.I. — Shoreline access made big waves earlier this year when lawmakers widened the public access corridor allowable under state law, but the bill only tackled part of the issue of getting to the beach.
Under the legislation that passed the General Assembly in June, Rhode Island residents and all other members of the public can walk along the shoreline without trespassing on private property, so long as they stay within a zone 10 feet landward of the lowest seaweed line on the shore. But the law said nothing about how members of the public get onto the beach in the first place.
Almost all of Rhode Island’s 21 coastal communities designate specific sites and access points that Rhode Islanders can use to get onto coastal lands, called rights-of-way, or ROWs. They come in many shapes and sizes, from dirt paths to fishing spots, scenic overlooks, or a kayak or boat launch.
At the local level these public access points are identified by each coastal municipality’s harbor management commission, which keeps an inventory of existing ROWs and is also charged with identifying and investigating possible new ROWs on behalf of the public. When a ROW achieves a town designation, the town is also typically responsible for ensuring the ROW remains open to the public.
Realistically there are hundreds if not thousands of different ways that Rhode Islanders use to get to the shoreline, but getting town- or state-designated ROW is a slow, deliberate legal process.
Legally, there are six acceptable methods for establishing a new public ROW in Rhode Island, and all of them require the town or state to record the ROW in local property records.
The most common method is for a municipality to create a new public road within its borders that leads to a portion of the state’s tidal waters. Towns are required to establish the road’s boundaries, record a description of it in local property records, open and maintain that road for the public’s use for it to get a ROW designation.
Any and all lands that have been used, improved, or considered public highways by municipalities for 20 years or more are also eligible for a ROW designation. Interested towns must give public notice of their intention to take ownership of the road as a public highway and record it in local land evidence records.
Any lands subdivided for development with a road leading toward Rhode Island tidal waters is also eligible for a ROW designation. The road must be available for public use and not be a private road.
Private landowners can also donate land to be used as a ROW, so long as they make clear their intent in writing to donate the land for public use, and so long as the town or general public accepts the donation.
Any piece of land that can be proved to have been historically and continuously used by members of the public may also be eligible for a ROW designation.
The final method is easement by prescription, paths on privately held land that can be shown to have been used for the public for 10 years or more, but there’s a caveat. Any potential ROW must show it was used for more than just foot traffic; state law stipulates there must be evidence of carriages or vehicles as well.
There’s also higher levels of designation, and protection, available for any public ROWs. The state Coastal Resources Management Council, the state’s lead agency on all things coastal access, is empowered to award ROWs a state designation, which comes with the legal backing of the state. If a state-designated ROW is obstructed or in any way closed to public access the CRMC, and by extension the attorney general’s office, is empowered to take legal action to keep it open.
CRMC has had a longstanding goal for itself to designate one ROW per mile of Rhode Island coastline, but out of the 400 miles of shoreline across the state, the agency has only awarded 234 ROWs its designation.
Its process is also traditionally more extensive and exhaustive, but the agency has few resources at its disposal to ramp it up. The agency begins with initial fact-finding and a background investigation conducted by CRMC’s legal counsel, who gathers all available materials, land evidence records, tax payments and all other public or historical records that the council’s subcommittee on ROWs finds relevant.
Following that investigation, CRMC’s ROW subcommittee reviews all that gathered evidence and holds a public comment hearing in the municipality where the ROW is located to hear testimony and review evidence members of the public may present.
If by the end of that process the subcommittee approves establishing a ROW, it can send its recommendation for a vote of the full council.
But that process can take months or years, and that’s not counting when the ROW is contested by any other residents or organizations within the town. CRMC’s ROW subcommittee has spent the bulk of its time this year alone on the Spring Avenue Extension ROW, an access point in the village of Weekapaug in Westerly. Despite consistent use over the years by members of the public, the Weekapaug Fire District in 2020 placed obstacles at parking spaces on Spray Rock Road and the Weekapaug Breachway to deter access. The fire district is also disputing its potential status as a ROW.
CRMC’s ROW subcommittee is expected to hold a public comment hearing later this year and early next year on the Spring Avenue Extension right of way.