A Rhode Island Superior Court judge says the state’s new shoreline access law has resulted in the unconstitutional taking of private beachfront property without just compensation to landowners.
In two decisions filed Friday, Associate Justice Sarah Taft-Carter denied Rhode Island Attorney General Peter Neronha’s motion to throw out cases brought by property owners in South Kingstown and Westerly. The plaintiffs in each case claim the law signed in 2023 violates the Fifth Amendment of the U.S. Constitution by authorizing a public easement that invades their property without paying them for their losses.
The new law outlines the area where members of the public are allowed to exercise their shoreline rights under the Rhode Island Constitution as the recognizable high tide line — also known as the “wrack line” or “seaweed line” — plus 10 feet landward. Prior to Gov. Dan McKee signing the law, Rhode Island followed the boundary of the mean high tide line, a complicated formula outlined by the 1982 Rhode Island Supreme Court ruling in a case called State v. Ibbison and not easily discernible to beachgoers.
In the South Kingstown case, Stilts, LLC v. Rhode Island, Taft-Carter wrote the change reduced property owner David Welch’s “bundle of rights,” which includes the right to exclude others. She called it “an unconstitutional taking.”
Taft-Carter’s decisions clear the way for the lawsuits to continue. They do not resolve either case or prevent the state from enforcing the new shoreline access law.
David Breemer, an attorney with the Pacific Legal Foundation, which represents Stilts, LLC, says the plaintiff’s side is now poised to file a motion of its own seeking to end the harm being done to his client.
“I think what we would do is file our own motion for summary judgment, and we would certainly be asking the court to enjoin the law,” Breemer said. “Stop its enforcement because it’s unconstitutional.”
Breemer added, “But until then, for everybody out there in Rhode Island who’s saying, ‘Hey, the beaches are public; this is not a taking; this has always been this way’ – no, no. The Court just said, ‘No, that’s all wrong.’”
Breemer said he does not have a timeline for filing the motion, “but it won’t be long.” If that motion is granted by the judge, the Rhode Island Attorney General’s Office would be able to appeal to the Rhode Island Supreme Court.
While the facts of the two cases are similar, the decisions by Taft-Carter have some differences. In the second case filed by Westerly property owners David M. Roth and Linda H. Roth, Taft-Carter goes further, citing case law in finding that the General Assembly’s attempt to alter the Ibbison ruling had “improperly” assumed authorities “more properly entrusted” to the judiciary.
The Attorney General’s Office did not respond to an interview request sent Monday morning.
The bill that became the new state law took direction from a state commission formed to study the issue of lateral shoreline access and offer recommendations.
Proponents of the new law say it is consistent with the historical use of Rhode Island’s shoreline and restores rights to the public lost when the Ibbison decision was handed down.
The Rhode Island Constitution, as amended in 1986 after the Ibbison ruling, says people “shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore … including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore.”
Sean Lyness, an assistant professor at New England Law – Boston who testified in favor of the shoreline legislation before it became law, said Monday that Rhode Island has an “unbroken chain of protections for shoreline access rights for the public” but Taft-Carter placed the Ibbison case as the “lodestar.”
While he’s disappointed with the decisions, Lyness said he’s glad the Rhode Island Supreme Court could be in a position to clarify what the significance is of the 1986 change to the Rhode Island Constitution.
“Ibbison is a decision from 1982,” Lyness said. “Rhode Islanders voted overwhelmingly to pass a constitutional amendment in 1986. We’ve never really gotten any kind of clarification from the court on what the import is of that 1986 constitutional change.”
He added, “I think we’ve got a real opportunity here for the Rhode Island Supreme Court to finally answer once and for all, almost 40 years later, you know: What happens as a result of the 1986 constitutional amendment?”