As talks surrounding beach access continue among local environmental conservationists, recreational fishermen, and beachgoers, efforts are underway to increase access to the Island’s public beaches.
A new bill filed earlier this year by State Rep. Dylan Fernandes, D-Falmouth, seeks to remove one significant barrier to public beach access: money.
In a recent call with The Times, Fernandes explained that the recently filed legislation would prevent taxpayer money from aiding in any revitalization or renourishment of beaches that aren’t entirely available to the public.
“I don’t want the government to be spending a dime to shore up any type of private property, if that property is not accessible and open to the public,” he said.
The bill itself, titled “An Act Removing Barriers to Beach Access,” states that “no state agency shall make expenditures involving state monies to beaches that restrict access to residents or renters of the municipalities that control said beaches, [and] no state agency shall make expenditures involving state monies to beaches that charge excessive parking fees in parking lots dedicated to such beaches.”
In the pending legislation, “excessive parking fees” refer to any fees exceeding what has been set by the state’s Department of Conservation and Recreation.
What prompted the bill, Fernandes said, stems from recent efforts to modernize the state’s centuries-old regulations on Massachusetts beach access.
“Massachusetts is the most prohibitive state in the country when it comes to beach access,” Fernandes said, calling the state an “outlier” compared with the rest of the nation.
In addition to the aforementioned bill, Fernandes and State Sen. Julian Cyr, D-Truro, have proposed legislation that would essentially do away with most private beach ownership, allowing access to the Island’s intertidal zones.
That bill seeks to add one word to the outdated ordinances: recreation, “the use of land for relaxation, exercise, watersports, or other enjoyable pastimes,” the proposed legislation states.
Efforts to push that bill through the State House failed when first proposed roughly two years ago; the lawmakers have since refiled it.
Although the proposed legislation would not completely get rid of private beaches, or take land away from waterfront property owners, it would open access to the intertidal zone for people to sunbathe or walk along the water — something that’s long been restricted.
In Massachusetts, private land can extend all the way to low tide mark. That was a standard established centuries ago, through the Colonial Ordinances of 1641–47, when Massachusetts Bay Colony legislators decided to transfer ownership of certain tidelands to coastal property owners to encourage private wharf construction.
This antiquated ordinance changed most of the intertidal areas from public to private, although it reserved the right for public use for only three purposes: fishing, fowling, and navigation. But as the tide goes out along a private beach, the wet sand exposed becomes private property.
However, because there’s 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,” the state’s explanation of rights along the shoreline says.
“There’s just really archaic laws on the books that date back to 1600s around what is permissible in the intertidal zone,” Fernandes said, adding that most states allow public access in the intertidal zones; some go well beyond that. In Texas and Hawaii, for example, the public can access any beach up to the vegetation line.
Fernandes said his “preferred beach access bill” includes adding “recreation” to the list of permitted activities in the intertidal zones; though like before, it’s likely to be met with significant opposition.
If it were to pass, “the state would be sued immediately,” he said.
In litigation, the bill’s vitality “would rely upon a judge that is more open to public use doctrine than private property precedent,” he said. “So there’s a lot of question marks around it.”
The newest bill, around ensuring that any state money to shore up beaches or coastlines goes to a public access area, Fernandes said, “is a lot more straightforward, and less open to legal challenges.”
But ultimately, securing beach and tidelands access for everyone requires a delicate balance.
“With climate change not abating, and sea levels rising, our coasts are going to look very different in upcoming years,” Fernandes said. With continuing shoreline erosion and increasing conservation efforts, “I think the government is going to have to play a role in protecting our coastline.”
Good luck with that idea. Allowing the public free and open access to the tidal zone along privately owned beachfront amounts to the state revoking the property rights of the owners. Such a move would essentially be an eminent domain taking and when an action of that nature happens the owner must be compensated at fair market value.
How many acres of private property exist within the tidal zone just on MV, and what is the market value today?
This was proposed in the state legislature before. The taxpayers of Massachusetts would never condone such an expenditure.
Allowing the public free and open access to the tidal zone along privately owned beachfront is the standard in our Great Nation.
Owning the tidal zone is owning the ocean water..
Wherever the ocean goes belongs to all of us.
Is beachfront property worth less because we the people have the right to access the water we all own?
How much less?
The law does not say, or even imply, that property rights include the water. It very specifically states that ownership applies to the land in the tidal zone.
When Beach Road floods does that mean Ernie Boch’s land is suddenly public? When the parking lot and Dock St floods near the EYC does the land around the Shanty and other buildings become public. They’re under water, after all.
In the rest of our Great Nation We The People pretty much own to the High High Water Mark.
Even in the home state of the guy who got ripped off in the 2020 election.
You can enjoy the beautiful beach at Mara A Lardo when ever you like, you may not take Classified Documents back to your place, you must do them as a Beach Read.
Nice job of contradicting yourself. In another reply to me you used the term “low low water”. Here, you say the opposite, the “high high water mark”. Make up your mind.
Also, LOL @ “We the people”. That sends a clear signal.
I studied this intently 25 years ago. He might get the no public funds for non public beaches passed, and should, but the Supreme Court has consistently ruled no public access over the intertidal zone without millions in compensation to landowners, a price not affordable. Hint-many Justices are waterfront owners.
Did you notice how the rest of the nation deals with ocean access?
Great news! Open Lucy Vincent, Squibnocket, and Lamberts Cove to everyone!
Open every beach on the island to the world.
Even if the beach itself was open to the public, the road and parking lot at Vincent are still private property. So you would have to find some other way to get onto the beach.
The first thing these representatives have done that sounds good to me. Even though it doesn’t have a chance I agree no public funds for private property beachfront owners.
Make private property public, what a great idea!
You want beach access without it costing you a dime, what a great idea!
How about start with giving everyone access to “private “ town beaches like Lucys.
Vincent Beach is in fact private property. The town does not own it.
Should the beach owners be compensated for allowing the public to use their property?
Nope, they never showed have been allowed to own the ocean in the first place. This is simply fixing a previous mistake.
Yes. Changing the law would amount to the total acreage of the property being reduced.
Once that strip of land is declared open to the public you have usurped the property rights of the owners on that parcel.
We the people in rest of country own to low low water.
We the people of Massachusetts are willing to pay the cost of taking back what is ours.
The ocean is ours, wherever the ocean goes is ours.
If a hurricane takes your land it is ours.
In most states the property line goes to mean low water.
I seriously doubt that the people of MA are willing to spend millions of dollars on a strip of shorefront property that most never see or use.
Funny how to assume to speak for the voters of Massachusetts. Have you conducted a poll? Taken a survey?
I do remember in New Jersey, due to overwhelming public pressure, the beaches we all finally open to the public in about 1979. For 200 years NJ had similar restrictions as Massachusetts has now, but the NJ Supreme Court finally ruled that public access was implied all along since Colonial times, even though never stated, and they overturned 200 years of precedent without any compensation to landowners. The decision was for the right of passage only, not the right to sit on a private beach. But unless a private beach owner hired a guard, sitting on a private beach was allowed.
I grew up near Sea Bright, NJ, and around the time you noted, legislators were in an uproar over taxpayer dollars being used for federally funded sand replenishment projects for private beach clubs along Ocean Ave. The mandatory public access that resulted (including creating parking areas) came from that uproar. The legislation that is being proposed for MA now has strong precedent with the NJ case. I applaud Rep. Fernandes for filing it!