R.I. Superior Court judge sides with property owners in shoreline access law dispute

David and Linda Roth, who own properties along the Westerly waterfront, pictured, challenged the constitutionality of the state's shoreline access law in Washington County Superior Court challenging the state's new shoreline access law. (Courtesy Google Earth)

The Rhode Island General Assembly overstepped its bounds in drawing a line in the sand on shoreline access, a Washington County Superior Court judge ruled.

The pair of decisions issued Friday, July 12, by Associate Justice Sarah Taft-Carter offers a win for beachfront property owners in South Kingstown and Westerly, who in separate complaints argued the state’s 2023 law amounted to an unconstitutional taking of their land.

But the victory may be short-lived, with an appeal to the state Supreme Court all but guaranteed, according to Sean Lyness, assistant professor of law at New England Law Boston who advised state legislators on the 2023 law.

“ This case was always likely to address issues that the Rhode Island Supreme Court would need to weigh in on,” Lyness said in an interview on Monday. “I’d be very surprised if the state didn’t appeal.”

The Rhode Island Office of the Attorney General had asked the court to dismiss both cases without a trial, a request which Taft-Carter rejected in her July 12 motions. A final order is still expected in both cases.

“We respectfully disagree with the Superior Court’s decision to deny the State’s motion for summary judgment in two cases regarding recent shoreline access legislation,” Brian Hodge, a spokesperson for the attorney general’s office said in an emailed response Monday afternoon. “The Attorney General will continue to rigorously defend Rhode Islanders’ access to the shoreline and the litigation team is currently evaluating all options for moving forward.”

Hodge declined to comment on the prospect of an appeal because the litigation is still pending in Superior Court.

Lawmakers in 2023 attempted to settle a nearly 40-year debate over where public shoreline access begins, setting the line at 10 feet landward from the high tide line, visible by the collection of seaweed left as the water recedes. As expected, the law drew almost immediate pushback from property owners, first in federal court and then, after that case was tossed, through the state court system.

“We always knew it was not going to be easy,” said Topher Hamblett, executive director for Save the Bay and a vocal proponent for the new shoreline access law. “We’re not surprised by it. It was in the air during the whole legislative session.”

At issue is whether the new law merely clarifies what has been on the books since the state’s 1986 constitutional convention , which enshrined Rhode Islanders’ constitutional rights to the shore, as the attorney general’s office argued in its defense. Or, as property owners contend, if the law expands public access, in turn violating constitutional protections for private property rights and separation of legislative and judicial powers.

Shoreline access in the R.I. Constitution? Dennis Nixon was in the room where it happened

Taft-Carter sided squarely with property owners, leaving heavily upon a 1982 Supreme Court case known as Ibbison, which set the public boundary at the mathematically precise, but difficult to eyeball “mean high tide line.” Where Ibbison offers an “identifiable and reliable boundary that uses scientific techniques,” Taft-Carter wrote, the 2023 law offers a delineation that is unconstitutional, “ whimsical and inconsistent.”

“The Act reduced the Plaintiff’s ‘bundle of rights’ inherent in the ownership of property by expanding the preexisting boundary line to ten feet landward of the recognizable high tide line and confiscated the Plaintiff’s property resulting in an unconstitutional taking,” Taft-Carter wrote.

Pacific Legal Foundation, a California-based Libertarian group helping to represent Stilts LLC, whose sole member David Welch owns four beachfront lots along Charlestown Beach Road in South Kingstown, celebrated the judge’s decision as a “major victory.”

“Our clients are gratified that the court agreed with what they have said from the start—the beach access law violates their rights,” Senior Attorney J. David Breemer said in a statement. “As the court recognized, the beach access law infringed on our client’s property rights by moving the existing public beach boundary line ten feet landward, effectively confiscating our client’s property, which is an unconstitutional taking.”

Gerald Petros, the attorney representing Westerly property owners David and Linda Roth in the second complaint, also lauded the decision as “comprehensive and compelling” in an interview on Monday.

Lyness acknowledged that Taft-Carter’s rulings offer an “almost unqualified win” for private property owners, with the only argument in the South Kingstown case, centering on the Fourth Amendment, thrown out.

But the decision offers no indication of how the highest court will come down in an appeal, Lyness said.

“Because these are purely legal questions with no dispute over the findings of fact, it sets up a review in which the Supreme Court can take a fresh look with no deference to prior rulings,” Lyness said.

Also important to Lyness: As the legal battle continues, residents can still stroll the shore within the boundary 10 feet from the wrack line.

“For your average Rhode Islander, this decision doesn’t really change anything,” Lyness said.

In fact, individual, high-profile disputes over alleged “trespassing” by beachgoers along public shorelines have dwindled compared with prior years, Hamblett said.

The Rhode Island Coastal Resources Management Council, which is charged with enforcing the 2023 law and is named as plaintiff in both complaints, did not immediately return inquiries for comment on Monday.

Breemer and Petros each declined to comment on the possibility of an appeal in an interview Monday.

“We’re not quite there yet,” Breemer said.

Instead, he focused on the impact of the July 12 decision for his client and for shoreline property owners statewide.

“We are happy that maybe some of the misinformation out there about where the public beach really has been in Rhode Island will get corrected,” he said.

Updated to include comments from the Rhode Island Office of the Attorney General.

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