Senate Committee Hears Both Sides of Shoreline Access Debate at Hearing
May 8, 2023
PROVIDENCE — Shoreline activists and waterfront property owners sparred on Smith Hill last week as the General Assembly considers shoreline access reform.
New legislation (S0417) introduced by Sen. Mark McKenney, D-Warwick, would guarantee Rhode Islanders could safely travel up and down the shoreline without trespassing so long as they remained below the vegetation line.
If the legislation is passed and signed into law, Rhode Islanders would find themselves with significantly more leeway to walk along rocky or sandy shores. A House bill (H5174) that derived its language from the Legislature’s study commission on shoreline access would only peg lateral access to 6 feet landward of the wrack, or seaweed, line.
Affixing the legal boundary to the vegetation line would give visitors more room to walk on the beach, collect seaweed, swim, and fish, among other sanctioned activities.
“Litigation is expected,” McKenney told committee members. “Some shorefront owners will contend this is a taking of private property, but the fact is the shoreline was not theirs in the first place. The Rhode Island Constitution charges the General Assembly with the duty to protect shoreline access rights.”
The bill represents a complete reversal for McKenney, who only a few years ago opposed similar legislation to allow greater shoreline access. His mind began to change, said McKenney, as he began to serve on the study commission headed by Rep. Terry Cortvriend, D-Middletown, dedicated to unraveling the issue once and for all.
McKenney’s legislation also includes provisions for proper education and signage about shoreline access rights, and protection from liability for private property owners whose properties may be used for access.
“I was somewhat of a skeptic,” McKenney said. “I thought perhaps the present standard, mean high water, was the best standard boundary for public access and maybe we should keep it.
“We saw boatloads of evidence that was presented to us in that commission. And by the time we were done, I had to reassess my thinking.”
Shoreline activists and bill supporters see it as a win-win. Beachgoers get clarification on where they can walk on the shore without trespassing, and private property owners gain a clarified boundary line where they can enforce their property rights. The current activities permitted by the state Constitution along the shore would remain permitted.
According to McKenney, no waterfront property owner has been able to prosecute someone since the 1980s because there’s no way to prove criminal intent for trespassing.
The current shoreline access debate traces its roots to a 1982 Rhode Island Supreme Court decision called State v. Ibbison, which narrowed public access to the shore in Rhode Island to the mean high water line (MHW).
MHW is an incredibly technical boundary — it’s nearly impossible to see with the naked eye by the casual beachgoer and is more often than not underwater. Another problem? The line is based off almost 19 years of data derived from tidal gauges, and it’s almost always moving due to tidal action or storm activity.
While the 1986 state constitutional convention affirmed the right to the state’s shoreline, access has more or less lived in a state of legal limbo. While no one is ever convicted for trespassing on the beach, private property owners over the past few years have erected signage and fencing and hired security guards to prevent people from walking on what they see as a private property.
Bill supporters said robust shoreline access has knock-on effects not being considered by legislators. Conrad Ferla, a South Kingstown resident who founded a popular Facebook group advocating for shoreline access, said closing shoreline access would make a direct hit on the state’s tourism industry.
“If we don’t have access to our shores, we don’t have a thriving economy,” Ferla said. “And that’s a problem. The vegetation line is the actual spot where the ocean stops. Nothing grows where the ocean goes.”
Meanwhile, anglers expressed concerns that without the bill they would get chased away from prime fishing spots, a protected activity according to the state Constitution.
“There’s no question over the last decade our ability to access the shore to fish has come increasingly under fire as the vagueness of the law has been routinely exploited,” said Greg Vespe, president of the Rhode Island Saltwater Anglers Association.
But some waterfront property owners claim the state will illegally seize property if the bill becomes law. Resident Michael Sands, who told committee members he owns 50 acres of waterfront property, said he welcomed boaters, fishermen, and beach walkers to enjoy the beaches, but changing shoreline access laws would come at a cost.
“There will be increased human destruction on beaches, litter fires, driving on beach fronts, and there will be limited availability of enforcement because the Department of Environmental Management and Coastal Resources Management Council are underfunded,” Sands said.
“I bought a piece of property that has a deed filed with the town, I pay taxes on it,” waterfront property owner David Welch said. “This bill takes a private beach and turns it into a public beach with few exceptions.”
Dan Procaccini, an attorney with Adler Polock & Sheehan representing an anti-shoreline access group, said the legislation was teeming with risks to the state and taxpayer dollars.
“If enacted, the state will have taken an unknown amount of the most valuable amount of land at an unknown cost,” Procaccini said.
McKenney emphasized to the committee’s senators that shoreline access was not merely a niche issue.
“This bill is not just important to the folks in the shorefront communities,” he said. “But the folks in Burrillville, Coventry, Exeter, many of them would like to be able to access and enjoy the beach.”
The bill was held for further study.