Massachusetts has a public beach access problem

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One way to mitigate the problem: access to the intertidal zone.


Photo by Katkami/Getty Images

Massachusetts summers come with freebies — Red Sox games, maybe free furniture from Jordan’s and, of course, days to sunbathe and splash along the shoreline — but also particular frustration. Full beaches, full parking lots. Not enough shore.

In my memory as a kid growing up in the Bay State, that frustration sounds like the dull hum of an outboard boat motor, and it sounds like a man in a green wooden skiff.

As kids, my cousins ​​and I would travel to Pine Island Cove in Lewis Bay to find a specific sandbar. The sandy spit, discovered at low tide, extended into a small channel. We would run, spring off the sandbar, and perform a rarefied launch from dry land into water so deep we couldn’t touch the bottom. Inevitably, the telltale sound of the speedboat would come from the bay. The man in the skiff worked for Great Island, the group of private landowners who owned the land around the creek. He ordered us to leave, because this stretch of sand? It was private property.

But I think we (and you too) should own that sandy spit at Pine Island Cove. And, maybe, we can. Our old takeoff location belonged to a specific category of coastal landscape called the intertidal zone, which is the land between the high tide and low tide marks.

In Massachusetts, private land may extend to the mean low tide mark, a standard established in colonial ordinances of 1641-1647. When the tide goes out along a private beach, the exposed wet sand becomes private property. In all other coastal states except Maine, Delaware, and Virginia, private property ends at high tide. In some states, such as Texas, private property ends even earlier, at the vegetation line before the sand. In other words, the Bay State is a major outlier. And it’s not a small amount of our beautiful coastline that is affected. According a recent GBH report, only 12% of Massachusetts’ 1,400 miles of coastline is public and open to all 6.8 million residents, a situation exacerbated by the inequitable placement of those few beaches and limited parking spaces.

Before addressing the question of how the state might remedy this problem, I want to offer an important reason why it should: He just feels good. And it’s not a unique sentiment for me – societies have entertained the concept that certain landscapes should not be individually owned since the Romans, from whom we got the idea of ​​collective ownership of national parks. In the years that followed, this notion was broadened to include the ocean, in our understanding of international waters, and the ocean floor.

Even the Massachusetts Intertidal Law, while restrictive, reflects this notion, as it grants the non-beach house-owning public certain exceptions. You can fish, hunt waterfowl, and navigate the waters, as long as you float or swim without touching the bottom. But I think the law should also encompass what most people want to do at the beach: lounge, bask, bask or play in the sand.

There are more pressing reasons, beyond the feelings shared throughout history, to join the other states. For one thing, as heat levels rise over the coming summers, ocean access will be less of a recreation and more of a necessary respite from the oppressive urban heat. A public intertidal zone would create public land, albeit ephemeral and sometimes thin and still accessible only by existing public beaches, along every part of the Massachusetts coast.

Of course, attempts at reform are likely to meet stiff opposition, given that many past attempts have failed. In the 1970s, Senate President Billy Bulger attempted to legislate public access to the intertidal zone by adding “walking” to a list of land use exceptions. The Massachusetts Supreme Court struck it down, and then Bulger launched a now obscure and unused scheme to buy back the tidal lands from landowners and place them in public accountability. This cycle was launched again recently by two local politicians who represent parts of Cape Town and the Islands: Senator Julian Cyr and State Representative Dylan Fernandes. Last year, the two introduced a bill in the House and Senate that would add “recreation” to the list of permitted public activities in the intertidal zone, allowing the public to use the tides at their discretion.

Mark Robinson, executive director of the Compact of Cape Cod Conservation Trusts, has dealt with this issue since 1983, when he wrote a master’s thesis for the University of Rhode Island on Massachusetts’ restrictive intertidal land laws (Rhode Island, of course, allows unhindered public access to all intertidal lands). He praises Cyr and Fernandes’ efforts, but says he’s skeptical that, much like Bulger’s attempt with “walking,” the incorporation of “leisure” would survive legal scrutiny. “I think they have the wrong tree,” Robinson tells me. “It would go straight to court, and the court would think it’s been settled law for too long to be upset.”

If Cyr and Fernandes’ bill fails or is canceled, Bulger’s backup plan remains. Commonwealth or city governments could offer to purchase intertidal areas or claim them through eminent domain. The latter may seem drastic, but the state has a successful history with spectacular coastline seizure. In 1961, President John F. Kennedy created the Cape Cod National Seashore, Massachusetts’ most famous public beach, through eminent domain. And the park, which attracts more than 4 million visitors, creates more than $638 million in economic spinoffs. But since Bulger’s initial push to purchase the intertidal zone in the 1990s, which ultimately failed due to a lack of government interest, neither state nor city governments have successfully pursued this path.

Clearly, owners of beachfront communities have reason to resist this change, given that private beach access was presumably built into both their reasons for buying there and the price of the House. But while the change certainly benefits beachgoers massively, they will also benefit.

I’m talking, of course, about climate change. As the world warms, ocean levels will continue to rise and the sea will begin to claim these homes before the state can touch their private beaches. This is where a public intertidal zone benefits private landowners, says land use attorney Anthony Panebianco. “Because their land is private, and because they don’t have Commonwealth protection on that land, it would be up to them to rebuild their dykes or move their properties if they wanted to,” says Panebianco, who works frequently on land disputes along the coast. In addition to the compensation they would receive if the area were public, he thinks more waivers would be given to property owners, and it would be the state’s obligation to protect against the creeping ocean.

Even still, some owners are likely to take issue with any invitation from the public to sunbathe on their private beaches. Often, privacy is one of the biggest benefits of a monumental investment like beachfront real estate.

Kris Clark, a Barnstable councilman, tells me that while there are landlords whose “nature is to share that access [to the intertidal zone]she can sympathize with their opposition. “[Property owners] are like, ‘Hey, we pay a lot of money in taxes to have a property that goes to the water, and we’d rather it not be hampered by public use,’” she says.

But Massachusetts, in many ways, is a beacon of progress. Joining other states in allowing public access to tidal areas seems like a natural evolution to me, and not so drastic. The Commonwealth would finally conform to a common-sense notion, one that most of the country already has in place – beach access should be treated like the universal treasure that it is, with access for all.

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