The Gritty Battle for Beach Access

By Michael S. Serrill

From sea to shining sea, sunbathers vs. property owners

A year after Hurricane Alicia walloped the Texas coast around Galveston last summer, the storm has not entirely abated. Having weathered natural disaster, some 140 beachfront-property owners are facing an even worse legal catastrophe. Texas law gives the public the right to use all the beach in the corridor between the sea at low tide and the natural vegetation line. The violent winds and rain of Hurricane Alicia tore away such large chunks of land that private, $100,000 homes are no longer sitting on privately controlled property. When officials moved in to claim the land for sunbathers and fishermen and to require that some of the houses be abandoned without any state compensation, the homeowners' wrath easily matched that of Alicia. A maelstrom of lawsuits is still raging.

Such beach battles are by no means unusual. From sea to shining sea, landlocked citizens are asserting what in many states is their traditional right of access to the beaches, even if they have to tramp across private property to get there. At the same time, property owners, especially wealthy residents of exclusive beachfront communities, are becoming increasingly militant about the invasion of beachgoers. In Maine's high-priced coastal enclaves, property owners, many of them from out of state, have built fences, thrown rocks, towed cars and on at least one occasion brandished a shotgun to keep clammers, fishermen and would-be sunbathers off their land. On the Massachusetts island of Martha's Vineyard, a summer retreat for some of the East Coast's most prominent lawyers and businessmen, homeowners have begun hiring private guards to confine outsiders to relatively crowded stretches of public beach.

But nationally, the trend is otherwise; courts and new laws are gradually eroding private beaches. Earlier this year, for instance, the New Jersey Supreme Court took note of "the increasing demand for our state's beaches" and held that they are a "public trust" to which private-property rights must give way. The theory is a groundbreaking, potentially sweeping one. Courts in Oregon, Florida and Hawaii have also upheld beach access under the more legally traditional "doctrine of custom." When the beaches have always been open to the public, these courts have held, they must remain so. In Hawaii a tough law forced even the Mauna Kea Beach Hotel, one of the world's poshest resorts, to build an access path to the beach for the public. The hotel, however, has reduced the flow of ordinary tourists by charging high parking fees. Such indirect attempts to limit beach-going crowds are common. Resort towns often impose parking restrictions and stiff bridge and beach tolls for nonresidents. But these too are being attacked. In Florida this month, Governor Bob Graham authorized local officials in St. Augustine to press a lawsuit challenging beach tolls.

The beach legal wars are largely an outgrowth of rapid coastline development. In Texas, for instance, there was little protest from landowners when the Open Beaches Act was passed in 1959, because at that time the Texas Gulf Coast was sparsely developed. Widespread construction of private homes, hotels and high-rise condominiums has come only in the past ten or 15 years. The new objections, in the wake of Hurricane Alicia, are nothing but "the arrogance of affluence," says Assistant Attorney General Ken Cross. "Building on a beachfront is a gamble with nature. When they take that gamble and put their money down, they should be prepared to risk losing it."

Some beachfront dwellers accept their losses from the ever-changing sea, but not from the ever-changing state. In California, the state coastal commission ruled in 1977 that when owners build or rebuild sea walls to protect their property from erosion, all land seaward of the embankments is automatically opened to public access. In 1979 a Ventura County community called Whalers' Village built a revetment and fought the public-access rule. A local court found the requirement unconstitutional in 1983 because it was "the taking of private property without paying just compensation." The ruling is being appealed. "The government is giving these people a Hobson's choice," says Whalers' Village Attorney Charles Greenberg. "Allow your homes to be destroyed or open up your backyard to the public." Santa Monica Attorney Sherman Stacey, who is bringing a similar suit, argues, "If the state wants to improve public access, why doesn't it buy the property and impose the cost on all the taxpayers?" One reason: it is too expensive.

On Nantucket Island, Mass., an innovative approach to that problem is a 2% tax on all real estate sales, the funds to be used to buy back the beaches for the public. But most states are not obliged to pay for what is viewed as a longstanding public right. That may be true even in Maine, which is still governed to some extent by a 17th century grant from the King of England that gave away huge tracts of coastal land, including the beaches, to encourage settlement.

How the King's law now applies will be decided by the Maine courts in a case involving public access to a prime stretch of coastline called Moody Beach. Assistant Attorney General Paul Stern, for one, believes that the courts "will decide that the public has the right to use the state beaches rather than preserving them for essentially the privileged classes. Why shouldn't a mill worker from Lisbon Falls be able to use the beaches?" he asks. The legal tide seems to be going his way.

--By Michael S. Serrill. Reported by Adam Cohen/Boston and Liame Hart/Houston

With reporting by ADAM COHEN, Liame Hart