Hypothetically could MA eminent domain its beaches?

Blackbird

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As far as I know, all beaches in California are public-access; could MA replicate CA and make its beaches public-access as well?

I imagine there'd be a massive stink from many CT and NY millionaires, but I think it would greatly benefit the majority of Bay State residents who don't own beachfront property.
 

JeffDowntown

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As far as I know, all beaches in California are public-access; could MA replicate CA and make its beaches public-access as well?

I imagine there'd be a massive stink from many CT and NY millionaires, but I think it would greatly benefit the majority of Bay State residents who don't own beachfront property.
The land ownership laws in the West are different than in the Eastern US. In the Eastern US you can privately own waterfront and water access in general (Riparian Doctrine from English Common Law). In the Western US you cannot. It has to do with access as well as water rights (particularly fresh water in the West) (Prior Appropriation Doctrine).

These separate legal doctrines have been upheld in the US Supreme Court, United States v. Gerlach Livestock (1950). You are not going to change this legal precedent.
 

Blackbird

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The land ownership laws in the West are different than in the Eastern US. In the Eastern US you can privately own waterfront and water access in general (Riparian Doctrine from English Common Law). In the Western US you cannot. It has to do with access as well as water rights (particularly fresh water in the West) (Prior Appropriation Doctrine).

These separate legal doctrines have been upheld in the US Supreme Court, United States v. Gerlach Livestock (1950). You are not going to change this legal precedent.
I don't think the state would have to change any property ownership laws for this to happen? I'm asking if the state could take the property from private owners (with compensation) and turn it over for public use.
 

JeffDowntown

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I don't think the state would have to change any property ownership laws for this to happen? I'm asking if the state could take the property from private owners (with compensation) and turn it over for public use.
They would likely lose the court battle that would ensue. Eminent Domain is not an absolute right for government, it can be fought (and private property owners often win). The right to private ownership of waterfront is well established in Riparian Doctrine.

Good example is the Cape Cod National Seashore. Private ownership properties within the boundaries still exist, but there is a really complex deal in place that slowly transitions them to government ownership.
 

JeffDowntown

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Also, I am not sure this is really a problem.

While only 25% of the Massachusetts coastline is public access, that amounts to over 375 miles of publicly owned coastal frontage, of which 187 miles is public beaches (325 public beach access sites). That is a lot of beach access!
 

Blackbird

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Also, I am not sure this is really a problem.

While only 25% of the Massachusetts coastline is public access, that amounts to over 375 miles of publicly owned coastal frontage, of which 187 miles is public beaches (325 public beach access sites). That is a lot of beach access!
I had the thought while down on the Cape this weekend. The public beaches were very crowded, but all you had to do was drive a mile down the road to find beaches that were totally empty. The latter could likely owned by a family that may only spend a week on the Cape per year, which is a big waste of space imo.
 

JeffDowntown

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I had the thought while down on the Cape this weekend. The public beaches were very crowded, but all you had to do was drive a mile down the road to find beaches that were totally empty. The latter could likely owned by a family that may only spend a week on the Cape per year, which is a big waste of space imo.
I can see that point. But we actually have more miles of public beach per capita than California. (We happen to have a very long coastline for a geographically small state.)
 

BronsonShore

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They would likely lose the court battle that would ensue. Eminent Domain is not an absolute right for government, it can be fought (and private property owners often win). The right to private ownership of waterfront is well established in Riparian Doctrine.

Good example is the Cape Cod National Seashore. Private ownership properties within the boundaries still exist, but there is a really complex deal in place that slowly transitions them to government ownership.
Actually, the state would almost certainly win. The idea of taking beaches for the purpose of turning them into public recreational lands stands on far sturdier legal ground than several other eminent domain cases that various municipalities have won, including Kelo v. New London, which provides the current controlling law.
 

JumboBuc

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I imagine there'd be a massive stink from many CT and NY millionaires, but I think it would greatly benefit the majority of Bay State residents who don't own beachfront property.
But the vast majority of Bay State residents would never use any beaches that would be taken by eminent domain. Of all the possible uses of State funds, I'd put buying up beachfront property (plus paying all the legal expenses that come with eminent domain) pretty close to the bottom with respect to priority.
 

F-Line to Dudley

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How much of our coastline is actually usable for recreation to begin with? We're not exactly the land of sandy beaches here. More often than not the "waterfront" access is either a soggy mosquito-infested marsh with shoulders-high grass or a bunch of razor-sharp rock outcrops. Recreation-worthy beaches are pretty well represented in what lands have been made public. If there's truly something missing with the lands that haven't, please quantify how many miles of that is actually fungible for recreation instead of being anti-inviting marshy or rocky filler. It's entirely possible we've already publicized most of the salvageable recreation spaces in what's left.
 

Blackbird

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Fair points. It could be that where I was on the Upper Cape has more privately-owned beachfront compared to the rest of the state. I imagine the Islands must also have a lot of private beachfront. However, between the Cape Cod National Seashore and the other beaches on the coast a decent percentage of the sandy beaches are probably public.

Is there any good resource to find out how much of MA's useable beaches are public?
 

DBM

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Many tidal cycles ago, I took a course in Maritime Law at the excellent Williams-Mystic maritime studies program, taught by this rather celebrated maritime law scholar. Needless to say I recall practically nothing of value--other than that the Massachusetts laws regarding public access to the shoreline are both stupendously anarchonistic and chronically contested--indeed, Billy Bulger himself led a perennial (and apparently not entirely futile?) crusade against them, after a beachowner booted him from his beach.

The law in question is the Fishing, Fowling & Navigation Act of 1647 (!). The state summarizes it most helpfully here, and the summary is worth quoting in full:

"The Massachusetts Bay Colony originally followed this rule, until its legislators decided to transfer ownership of certain tidelands to coastal landowners, in order to encourage private wharf construction on these so-called "intertidal flats." This general land grant was accomplished by the Colonial Ordinances of 1641-47, which in effect moved the line between public and private property to the low water mark, but not farther seaward of the high water mark than "100 rods," or 1,650 feet. This intertidal area (now called "private tidelands") is presumed to belong to the upland property owner, unless legal documentation proves otherwise for a given parcel (as is true in certain segments of Provincetown, for example).

Although the Colonial Ordinance changed the ownership of most intertidal flats from public to private, it did not transfer all property rights originally held in trust by the state. For one thing, no rights to the water itself (as distinct from the underlying lands) were relinquished by the Ordinance. Moreover, the law specifically reserved for the public the right to continue to use private tidelands for three purposes-fishing, fowling, and navigation.

Scope of Public and Private Rights
Over the years, Massachusetts courts have ruled that the scope of activities on private tidelands covered by the reserved public rights of fishing, fowling, and navigation is broad, and includes all of their "natural derivatives." For example:

--The right to fish includes the right to seek or take any fish, shellfish, or floating marine plants, from a vessel or on foot;
--The right to navigate includes the right to conduct any activity involving the movement of a boat, vessel, float, or other watercraft, as well as the transport of people and materials and related loading and unloading activity; and
--The right to fowl includes the right to hunt birds for sport as well as sustenance. (The Massachusetts Attorney General takes the position that the right of fowling also includes other ways that birds can be "used," such as birdwatching, but also notes that this issue has not yet been addressed by the courts.)

Clearly, these rights cover a variety of both old and new activities that many people enjoy, such as surfcasting and windsurfing. Still, the courts have imposed some limits. The right of fishing, for example, does not allow the use of structures for aquaculture or the taking of plant debris washed up on the beach. Also, courts have made it clear that the public right to use this area does not include the right to simply stroll, sunbathe, or otherwise engage in recreation unrelated to fishing, fowling, or navigation. Without permission from the landowner, such general recreation is trespassing. There is only one narrow exception to this rule-because there are no private property rights in the water itself, the public is allowed to swim in the intertidal zone provided the swimmer does not touch the private land underneath or use it to enter or leave the water."
 
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Blackbird

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“Fishing, fowling, and navigation” lmao. :ROFLMAO:

Just bring your pet chicken Rocko to the beach with you, and you can sunbathe wherever! Maybe throw in a compass for good measure!
 

KCasiglio

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I can't speak to what it's like on the cape, but at least for the Boston area it would seem to me there's plenty of accessible beachfront. Carson, Savin Hill, Revere, Wollaston, and Orient Heights all T accessible, plus Nahant, Nantasket, and Winthrop available by bus.

The problem and where resources could better be used (imo) is in making them suck less. Wollaston Beach has to be the worst beach I have ever been to, and I say that as someone who grew up with the awful beaches of Connecticut.
 

Arlington

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I would think that autonomous electric shuttles in places like Plum Island might solve the park-and-walk problems and increase access to the public beaches cheaper than taking the private ones.

same problem on the Mystic Lakes, by the way: the problem is how to get picnic makers in and trash out given limited parking
 

JeffDowntown

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If you really want to dig into public access to coastal resources, I recommend the MA Coastal Zone Management website. Not the most organized materials, but a lot of resource info there. They do catalog all the recreational beaches for example, public access points, etc.

A good starting point is the Coast Guide Online map.
 

HenryAlan

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“Fishing, fowling, and navigation” lmao. :ROFLMAO:

Just bring your pet chicken Rocko to the beach with you, and you can sunbathe wherever! Maybe throw in a compass for good measure!
Not sure Rocko would be allowed on the beach due to agricultural codes, but it does seen that bringing a pair of binoculars might put you on solid ground with the Attorney General's office.
 

BronsonShore

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In most cases, it probably wouldn't be worth the cost for the state to take private beaches by eminent domain--the previous owners still need to be monetarily compensated, and we're talking about some seriously valuable land here.

But what the state absolutely should do is crackdown on the numerous public beaches that have been rendered effectively private due to an almost complete and total lack of accessibility. Cedarville Landing in Plymouth is the most egregious example I know. There's about 1,000 feet of visually stunning public beach here:



But this entire area is served by just a single parking lot that fits about ten cars. All the roads leading to this lot are private; the lot itself appears to serve not the general public, but the nearby homeowners association; and the whole area is covered in "private property" signs which, in many cases, have been illegally installed by the homeowners.

There are beaches like this all over New England. And in each case, the homeowners are effectively stealing land from the public.
 

Arlington

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Cedarville Landing, originally called "Common Landing" (because it was, literally, a Commons) is a great example. Useful presentation here (PDF), where the town's been asked to use public access so that the private owners can place cliff-shoring structures ON THE PUBLIC LAND. :rolleyes:

Here is the town-owned "Landing Way" at the north end of the beach. I doubt the chain and sign are the town's idea:

Nicely-maintained town-owned lot off Sanderson (which they ED or somehow got during the development process described in the powerpoint above

However, it also seems like a place where, given limited parking, part of the solution might be a shuttle service from some other location
 

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