More than 70 percent of the Massachusetts coastline is privately owned and essentially off limits to the public because of a law written 380 years ago and still on the books.
In what has developed into a case of “haves” versus “have nots,” most coastal property owners own the land to the mean low tide line, giving them the right to restrict public use of the beach.
Only a handful of states, among them Massachusetts and Maine, restrict public access this way. In most states, private ownership ends at the mean high tide line, so the public can pass anywhere seaward of that line, including the intertidal zone.
Some states, like Maryland and North Carolina, allow public access to the entire beach in front of private coastal properties.
Massachusetts limits public access in private tidelands to three activities: fishing, fowling (hunting), and navigating, under the Colonial Ordinances of 1641-1647. Numerous court challenges and proposed legislation have been offered to improve public access, mostly to no avail.
But state Sen. Julian Cyr of Truro and state Rep. Dylan Fernandes of Woods Hole hope to drag Massachusetts more in line with the rest of the country when it comes to public enjoyment of the coast via a simple legislative tweak. Their proposal would simply add the word “recreation” to the list of activities permitted in private tidelands under the Colonial Ordinances. The bill defines recreation broadly as the use of land for relaxation, exercise, water sports, or other pastimes.
Cyr, who grew up on the Outer Cape, said he has seen a change in attitude among shore dwellers. “We increasingly see those who are fortunate enough to own property that abuts the beach being unreasonably possessive,” he said.
Sarah Peake, the state representative from Provincetown, has cosponsored Fernandes’s bill in the House. She echoed Cyr’s observation.
“In the last 15 years, as homes change hands, we’re seeing new owners kicking people off their private beach,” Peake said. “That doesn’t seem right to me. People should have the right to recreate on these large and gorgeous beaches.”
Cyr recalled a couple of friends who were booted off Great Hollow Beach in Truro by a police officer one quiet evening. “The cop said, ‘I’m really sorry but you’re on private property, and the owner called us to ask you to leave,’ ” he said. “Here are two people just sitting and enjoying a sunset.”
“I believe that no individual should own the ocean or the sand beneath its waves,” Fernandes said. While the bill wouldn’t eliminate private ownership, it would give the public access to the intertidal zone. He called the insertion of the word “recreation” into the ordinance “an elegant and simple solution.”
Cyr said he believes the change would better reflect the intent of the original law. “The colonial ordinances allowed the right to own down to the low tide mark, but explicitly allowed public use of the beach,” he said. For those early colonists, recreation took the form of hunting, fishing, and boating, in Cyr’s opinion.
Today, it would more likely be walking, swimming, and sunbathing.
Fernandes said he knew when he filed the bill that it would elicit a strong reaction. So far, he said, the reaction has been overwhelmingly positive. “I’ve heard stories about people calling the police, getting into screaming matches while they’re on a nice walk on the beach, and even citizens being verbally and physically assaulted,” he said.
Tweaking the colonial law would put an end to such scenes.
If the bill passes, Cyr doesn’t foresee “hordes of people” flocking to beaches next to private property. “What determines beach access is parking,” he said.
The bill is not the first legislative attempt to open up more of the coastline to the public. In 1974, then state Senate President William Bulger led a similar effort, but the state Supreme Court justices, asked to weigh in, advised the legislature that “public on-foot free right-of-passage over tidal lands that were privately owned, as proposed in the pending legislative bill” would constitute a land taking under both the state and U.S. constitutions.
In 1991, Bulger was successful in getting an act passed that would allow strolling rights in the intertidal zone from sunrise to sunset, but only on properties where the Dept. of Environmental Management acquired the right on behalf of the public by compensating the private property owner. That has happened only a few times.
Mark Robinson, executive director of the Compact of Cape Cod Conservation Trusts since its founding in 1986, recalled such an easement allowing the public to pass through the intertidal zone along a private beach in Orleans, purchased for $75,000 with money from the town and the state. Similar efforts died out after Bulger resigned from the Senate, he said.
While people should be allowed to walk the beach in Massachusetts, Robinson said, he wasn’t confident that the pending legislative fix would accomplish that. “A blanket declaration is not going to pass muster in the courts if it’s challenged,” he said. “In the end, it could be construed as a taking without compensation.”
