    [From the U.S. Government Printing Office, www.gpo.gov]

                 Tha Way @((D) @hce Sea

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                          Methods 9w Maszachusetb@ CommuNfin Ra NvwWe
                                    Pubft Access to the Coma

                              The Way to the Sea

                              Methods for Massachusetts Communities to Provide
                                            Public Access to the Coast

                                              COASTAL ZONE
           Cn                              INFORMATION CENTER

                                                           Research and Writing: Steven Brautigam, Ren6e L. Robin
                                                           Editing: Ren6e L. Robin, William Lahey
                                                           Graphic Design: Katherine J. Davis

                                                           Acknowledgements:
                                                              Special thanks to coastal planners, local and state officials, who contributed their time
                                                           and suggestions toward the preparation of this publication.
                                                              The preparation of this publication was funded by the Office of Coastal Zone
                                                           Management, National Oceanic and Atmospheric Administration, U.S. Department of
                                                           Commerce, under a program development grant to the Commonwealth of Massachusetts,-
                                                           and by the Center for Environmental Intern Programs Fund, Inc.
                                                                                 Massachusetts Coastal Zone Management
                                                                                          100 Cambridge Street
                                                                                            Boston, MA 02202
                                                                                             (617) 7 27-9530

                                                              This publication is the third in a series of public recreational and access guides to the
                                                           Massachusetts coast, produced by MCZM. Other publications include:

                                                                             Getting There: A Recreational Guide to the South
                                                                              Shore Waterfront, Hingham to Plymouth (1981)
                                                                                 The Boston Harbor Access Guide (1984)

                                                                 PUBLICATION OF THIS DOCUMENT APPROVED By DANIEL D. CARTER STATE PURCHASING AGENT
                                                                 IM-8-85-805831                                  Estimated cost per copy $2.78

                                                           Cover Photograph: Alison Shaw, Vineyard Gazette

                                                                                                 H

                               CONTENTS

                               QUICK REFERENCE
                                         Common Questions on Public Access        ...........................   v

                               1.    INTRODUCTION               ..........................................      1

                                         The Need for Public Access to the Coast     .......................    1
                                         Public Access Policies of the Coastal Zone Management Program   ....   2
                                         Leadership at the Local Level   ..................................     3
                                         Further Reading   ..............................................       3

                               11. WHO OWNS THE SHORE?.@                       ............................     4

                                         Public Access in Massachusetts: Historical Background     ..........   4
                                         Court Interpretations of Public Rights on Tidelands   .............    6
                                         Conflicts over Public Access  ...................................      6
                                             Urban Waterfronts
                                             Public Rights on Filled Tidelands
                                         Further Reading   ..............................................    10

                               I 11. LEGAL AN D REG U LATO RY TOO LS                     ................... 11

                                         Keeping What You Have:      .....................................   11
                                             Protecting Rights-of-Way to the Water
                                             Case Study #1 Gloucester Inventories Town Ways to Wa@er
                                             Case Study #2 Newburyport Uses Historic Ways to Secure Access
                                         When Informal Access is Restricted    ............................  14
                                         Prescri ption  ..................................................   14
                                             Case"@tucly #3 Swampscott Uses Prescription for Whales Beach
                                         Implied Dedication   ................. I .........................  16
                                         Public Access in Waterfront Construction    ....................... 16
                                             Waterways Licensing Under Chapter 91

                                                                           X

                                                                            Zoning Solutions     ........           ......                                17
                                                                                 Case Study #4 Plymouth's Waterfront District
                                                                                 Case Study #5 Beverly's Incentive-Zoned Waterfront District
                                                                                 Rezoning of Storm Damaged Property
                                                                                 Development Moratorium on Waterfront Parcels
                                                                            Further Reading      ..............................................           20

                                                                  IV. COST EFFECTIVE ACQUISITIO-N STRATEGIES                                       ...... 21
                                                                            Fee Simple Acquisition       .........................................        21
                                                                                 Donation, Partial Gift, Bargain Sales, Eminent Domain,
                                                                                 Post Flood Damage Acquisition, Land Banks
                                                                                 Case Study #6 Nantucket's Solution .
                                                                            Acquisition of Less-than-Fee Simple        ............................       25
                                                                                 Easements, Conservation Restrictions
                                                                                 CaseStudy#7 Barnstable's. Conservation Commission.
                                                                            Acquisition Examples      .... ....  .................................        28
                                                                            Further Reading      ..............................................           30

                                                                 V.     MAKING ACCESS EFFECTIVE                         ...........................       31
                                                                            Further Reading      ..............................................           33

                                                                 APPENDICES              .......................................................          34

                                                                            1.   Plymouth's Waterfront District Ordinance         ...................     34
                                                                            2.   Some Coastal Terms       ........................................        35
                                                                            3.   MCZM Public Access Activities        .............................       35
                                                                                 The Coastal Facilities Improvement Program
                                                                            4.   Other State Agencies Acti   ve in Coastal Public Access       .........  37
                                                                            5.   Excerpts from Executive Order No. 181: Barrier Beaches             ..... 38
                                                                            6.   Notes on theCon    servation Restrictions or Easements         ........  38
                                                                            .7.  Other Coastal Recreation Information        .......................      39

                                                                                                          iv

                                   QUICK REFERENCE

                                   Listed below for quick reference are common questions about public access to the
                                   Massachusetts coast, with page numbers indicating where the answers may be found.

                                   1. Where does private ownership end on the coast?           ..........................       5

                                   2. What rights does the public have on privately owned tidelands?           ......  .......  5

                                   3. What say does the public have in private development
                                       of filled tidelands?  .......................................................            8

                                   4.  How can a municipality incorporate public access in its
                                       waterfront redevelopment plans?        .........................................        16

                                   5.  How should a town go about identifying historic town ways to water?            .......  13

                                   6.  Local residents have used a certain path to the beach for years.
                                       Now the new owner of the beach property with the path wants to
                                       keep people out. What can be done to keep this path open?             ...............   14

                                   7.  How can a town purchase coastal property for public
                                       recreational use through a bargain sale?     ..............................      23 & 28

                                   8. 'If a landowner gives some coastal property to the town
                                       conservation commission, what benefits can he expect to receive?           ..... 22 & 28

                                   9. What state or federal money is available to help a town improve
                                       public access to the coast?   .............................      .......   ......   36-38

                                                                                     V

                                                                                             For the gifts of life are the earth's and they are
                                                                                             given to all, and theyarethe songs of the birdsat
                                                                                             daybreak, Orion and the Bear, and the dawn
                                                                                             seen over the ocean from the beach.

                                                                                                                    Henry Beston
                                                                                                                    The Outermost House
                                                                                                                    New York: The Viking
                                                                                                                    Press, p. 222, (1956)

                                                                                       Vi

                 Introduction

                1. INTRODUCTION

                The Need for Public Access to the Coast                                      Beach Traffic Congestion

                   The thin margin where land meets sea has long been a valuable               The shortage of public access to coastal land for recreational use
                resource to the people of the Bay State, 75% of whom live within a           takes several forms. Massachusetts is graced with an abundance of
                half hour's drive to the shore. As our relationship to the sea evolves,      beautiful sandy beach, but most of it is far from the majority of the
                economic dependence upon maritime activities has been joined                 state's population. Although 65% of the state's population live
                by a new reliance on the shoreline for recreation and tourism.               north of Duxbury, 75% of the public beaches lie to the south of
                People in ever greater numbers turn to the sea's edge for a                  Duxbury. On any hot summer weekend, the demand for an
                multitude of reasons. Active recreation-swimming, fishing, and               attractive sandy beach within two hours of Boston is likely to
                boating-is complemented by more passive forms, such as                       exceed the supply. The crowded Boston beaches prompt those
                strolling along the water, or gazing at waves and gulls. Visual access       with transportation to travel to other beaches on the North or
                to the sea has taken on a new importance, as residents and visitors          South Shores, or on to Cape Cod. Many beach parking lots fill up
                appreciate how the sweep of open water refreshes the eye and                 before 10:00 A.M., effectively excluding those who live beyond a
                spirit, providing awelcome break from the rigors of ourincreasingly          certain distance, or whose leisure time comes later in -the day.
                complex world.
                                                                                             Parking Problems

                                                                                               Where beachesexist, parking is sure to be in short supply during
                Shortage of Coastal Open Space                                               peak use periods. Public beaches designated as"public parks" may
                                                                                             not charge discriminatory beach entrance fees for non-residents.
                   Yet as the demand for shoreline recreation grows, the supply of           Still, it is not uncommon to find daily beach parking fees for non-
                space available for public use dwindles. On Cape Cod, where 10               residents which exceed the annual parking fee for residents, or to
                homes are built each day, a resident recently observed, "They're             have strict quotas on the number of out-of-town cars. Parking fees,
                not making any more beach." In a state with over 1500 miles of               like waterfront property prices, have risen dramatically in recent
                tidal shoreline, only235 miles are open to the public. Growth rates          years. Twenty years ago, no Cape Cod beach community required
                in coastal towns such as Barnstable are the highest in the state,            parking fees. Now, the great majority charge daily orweekly visitor
                sending waterfront property prices beyond the budgets of                     parking fees.
                municipalities. In Hyannis, for example, a single acre of property
                with an ocean view commanded a price of $200,000 in the                      Restrictions on Informal Beach Access
                summer of 1984. The problem of escalating prices for beachfront
                property is further compounded by municipal fiscal austerity                   Access becomes further restricted by a growing reluctance of
                resulting from recent property tax limits. To provide more coastal           littoral property owners to permit informal access to their beaches.
                land for public use, more and more towns seek cost-effective                 This causes conflicts in coastal communities where beach access
                alternatives to purchase shoreline property on the open market.              was taken for granted by local residents. Rapid growth and soaring

                                                                                                                                                                                          The Way to the Sea

                                                      beachfront property values make private beaches more desirable,                  Public Acces             ,s Policies of MUM
                                                      and incluceownersto post" No Trespassing" signs with increasing                            -                            . . I
                                                      frequency, and in some places hire guards as enforcers. In most                     In 1974 the Massachusetts Legislature commissioned a study of
                                                      cases, the public beach may not easily accommodate those who                     the availability and accessibility of public beaches. The resulting
                                                      had customarily used private property for recreation, but are now                report declared the public access @situation to be "a crisis.". The
                                                      prevented from doing so by increasingly restrictive property                     awakeningof public interestin increased public access to the coast
                                                      owners.                                                                          found expression in the state policies of the Massachusetts Coastal
                                                                                                                                       Zone Management Plan. Providing public access to the coast is a
                                                                                                                                       key objective of these CZM policies, which emerged from close
                                                      Conflicts Over         Kinds of Access                                           consultation with coastal community officials and residents:

                                                         Afurther problem concerns conflicts between forms of coastal
                                                      access. Some beach      property owners have attempted to prevent
                                                      loca) fishermen from using recorded town ways to water, citing the
                                                      risks which such activity poses to children who play on the adjacent
                                                      sand beach,. Swimmers often compete with windsurfers for control                 Policy 13: Review developments proposed near existing public
                                                      of sections of the beach. In certain harbors, lobstermen face the ire            recreation sites in order to minimize their adverse impacts.
                                                      of new waterfront residents who object to the odor and noise of a                .Policy 18: Encourage acquisition ofundeveloped hazard prone areas
                                                      working waterfront. And in some coastal areas, unlimited public                  for conservation or recreation use, and provide technical assistance for
                                                      access may threaten fragile ecosystems or accelerate damaging                    hazard area zoning and mitigation of erosion problems.
                                                      erosion.                                                                         Policy 20: Encourage, through technical and financial assistance,
                                                                                                                                       expansion of water dependent uses in designated ports and developed
                                                                                                                                       harbors, redevelopment of urban waterfronts, and expansion of visual
                                                      Access' to Urban Waterfronts                                                     access.
                                                                                                                                       Policy 21: Improve public access to coastal recreation facilities and
                                                          Publi:c demand for access to the coast has grown i      .n recent years      alleviate auto traffic and parking problems through improvements in
                                                                                                                                       public transportation. Link existing coastal recreation sites to each
                                                      beyond beaches and boat ramps to include visual and pedestrian                   other or to nearby inland facilities via trails for bicyclists', hikers, and
                                                      access to munic.ipal waterfronts. As a result of its historic settlement         equestrians, and via rivers for boaters.
                                                      patterns an  'd maritime past, the Bay State features over forty urban           Policy 22: , Increase capacity of existing recreation areas by facilitating
                                                      waterfronts. Each offers opportunities for public access to the sea.             multiple-use and by improving management, maintenance and public
                                                      Prompted in many cases by recent improvements in water quality,                  support facilities. Resolve conflicting uses whenever possible through
                                                      and spurred on by successful redevelopment of waterfronts as in                  improved managernent rather than through exclusion of uses.
                                                      Boston and in Salem, more and more coastal communities are                       Policy 23: Proved technical assistance to developers of recreational
                                                      taking a new look at their harbors and other coastal property, and               facilities and sites that increase public access to the shoreline.
                                                      seeing the special 'possibilities for public:enjoyment which the                 Policy 24: Expand existing recreational facilities and acquire         . and
                                                      shoreline provides.    'As communi.ties rediscover their maritime                develop new public areas for coastal recreational activities. Give
                                                      heritage, many have begun to seek forms"of Waterfront devel-                     highest priority to expansions or new acquisitions in regions of high
                                                      opment which feature water-dependent uses. Recent waterfront                     need or whe're site availability is now limited. Assure that both
                                                      developments will protect existing public rights of way, and will                transportation access and the recieational facilities are compatible   Iwith
                                                      provide open vistas to and walkways along the water.                             social and environment characteristics of surrounding communities.

                                                                                                                                 2

                  Introduction

                    In the summer of 1982, MCZM undertook a survey of                         of "home rule" - strategies to increase public access to the shore
                 Massachusetts residents to determine public perceptions and                  must originate at the local level.
                 preferences on coastal issues, including public access. The survey
                 Jound that 57% of Massachusetts residents favor conservation of              Summ        a .ry
                 remaining undeveloped coastline, while 26% favor recreational
                 beach use of this land. Fully 77% of the statewide public favored               This handbook describes a number of steps communities can
                 requiring developers of large coastal properties to provide the              take to improve coastal public access. Some'of -these ideas are'
                 general public with direct physical access to the water-front and            collaborative in nature, while others require an affih-native act by a
                 shoreline. Finally, 85% of the public favored state regulation of            person or group desiring to affect coastal access. These include
                 private construction and development along the waterfront to                 protecting and perfecting existing accessways, acquiring public
                 prevent blockage of scenic vistas.                                           coastal land oreasementsto use private property     ., and encouraging
                                                                                              waterfront development to provide public access. Case studies are
                                                                                              provided to illustrate how these tools can be applied.
                 Leadership at the Local Level                                                   The following sections outline -the origin and lim     Iits of public
                    Dueto itsunique history, Massachusetts is limited in whatitcan            rights on the coast, and then describe how new regulatory tools,
                 do at the state level to carry out the wishes of the public and              forms of land acquisition, and practical design and maintenance
                 increase public access to the coast. Ordinarily a leader in coastal          planning can - at a relatively low cost - help to increase public
                 issues (Massachusetts pioneered*in wetlands protection, and its              access to the Bay State coast.
                 federal ly-approved CZM program was the first on the Atlantic                Further Reading
                 coast), Massachusetts lags behind other coastal states in providing
                 public access to its beaches. California, for example, amended its           Ducsik, Dennis, Shoreline for the Public. A Handbook of Social,
                 state constitution to make its beaches public in 1873. Oregon did            Economic and Legal Considerations Regarding Public Recreational
                 likewise in a State Supreme Court ruling in 1969, while Texas                Use of the Nation's Beaches. MIT Press, Cam     ibridge (1974).
                 opened up its coast to the public in 1959. New Jersey recently               Fairbank, William A., Who Owns the Beach? Massachusetts Refuses to
                 followed suit, when its Supreme Court recognized public recrea-              join Trend of Increasing Public. Access. Urban Law Annual Vol. 11,
                 tional rights on the foreshore, and even on the dry sand above               p. 283 (1976).
                 mean high tide:                                                              Garber, Peter H. F@,- The Law of the Coast in a Clamshell Part VI: The
                                                                                              Massachusetts Approach. Shore and Beach (January 1982).
                     "The complete pleasure of swimming must be accompanied                   Mahoney, et al., Public Beach Access: A Guaranteed Place to Spread
                     by intermittent periods of rest and relaxation beyond the                Your Towel, U. Fla. L. Rev., Vol. 29, p. 853 (1977).
                     water's edge."                                                           Massachusetts Special Legislative Commission on the Availability and
                 In addition, several states, particularly California, Oregon, Florida        Accessibilityof Public Beaches; Public Beachand Use in Massachusetts.
                 and Texas, have   'funded programs specifically to increase public           Final Report. Mass. House D   'oc. 75, p. 6611 (1975).
                 access to the coast.                                                         Neuwirth, Donald B., and Furner-Howe, S., Cost Effectiveness: A
                                                                                              Better Beach for Your Buck, in Coastal Zone '83, Proceedings.of the
                    Massachusetts, on the otherhand,joins onlya handful of states             Third Symposium on Coastal 'and Ocean Management, American
                 in recognizing private ownership rights down to the low tide mark.           Society of Civil Engineers, Vol. 1, pp. 930-948 (1983).
                 Indeed, Massachusetts goes further, to the extreme low water                 Wrenn, et al., Beach Access. EnvRonmental Comment, pp. 3-16 (March
                 mark. For this reason - plus the Commonwealth's strong tradition             1980).

                                                                                               3

                                                                                                                                                                         The Way to the Sea

                                                 11. WHO OWNS THE SHORE?

                                                 Public Access in Massachusetts:
                                                 Historical Background.

                                                    The shortage of coastal land for public enjoyment is a relatively
                                                 new phenomenon in the Bay State. Before the arrival of the English
                                                 colonists, the inhabitants of Massachusetts were free to hunt and
                                                 fish in coastal areas aswell as Hand. Private property rights did not
                                                 extend to ownership of the beach and there were no bulky
                                                 buildings to separate the water from the village.

                                                 The Public Trust Doctrine

                                                    The Colonists brought with them the English system of laws,

                                                                                           T.-

                                                                                                         -- -- - -----

                                                                                                                          including guarantees in the Magna Carta of 1215 that tidelands
                                                                                                                          were in the public domain. This concept, the Public Trust Doctrine,
                                                                                                                          dates back to Roman law, and was codified by Justinian in 529
                                                                                                                          A.D., in the following language:
                                                                                                                              "By natural law itself these things are the common property
                                                                                                                              of all: air, running water, the sea, and with it the shores of
                                                                                                                              the sea."

                                                                                                                     4

                 Who Owns the Shore?

                 The Colonial Ordinance                                                        Colonists, however, were careful to safeguard public rights in the
                   In 1641 the Massachusetts Bay Colony became the first colony to             intertidal zone, and expressly reserved the public rights of fishing,
                 codify the Public Trust Doctrine in America. First, through the 1641          fowling, and navigation in these lands. These three rights repre-
                 Colonial Ordinance, they guaranteed public access to great ponds.             sented at that time the only significant public activities on the
                 Then in 1647, they amended the Colonial Ordinance to extend                   foreshore. As a result, the first state to recognize the Public Trust
                 private property ownership to the low tide line, to protect littoral          Doctrine also is one of a handful of states which extends private
                 property against the Crown's claims, and to thereby encourage                 rights below the high water mark.
                 private wharf construction and maritime commerce. In England,                    In brief, public rights in private tidelands are limited to fishing,
                 royal challenges to the shore owner's property rights constituted             fowling and navigation. In Commonwealth tidelands, the public is
                 one of the grievances which Parliament presented to King Charles I            entitled to full enjoyment and use as with a public park. Figure 1
                 in 1640, protesting "the taking away of men's rights under color of           illustrates the pattern of private ownership in Commonwealth
                 the King's title to land between the high and lowwater mark." The             tidelands which the colonists sanctioned.

                                                                                                                                                                        Figure I
                                                                                                                                                                        Undeveloped Shoreline

                            UPLAND

                                                                                      ....... ......
                                                                                                                                                    .......................
                                                                                            Extreme Hi            i e;@@i@
                                                                                   ..........
                                                                                                                         ..........
                  ...... .... ....
                        ...........-
                                   ........  ... .. ... .........
                               .. ..... .. ....
                                                 AC H
                                                                 ...........                                   . ..............
                                                                                                    . ........................ ........... ...
                                                                                                  ..........    ...........
                                      .................. .... ............
                                                                          1>1               ....... ........
                             . . .....                                             . .......
                                                                               ;P
                   .....    . .. ....... .
                 ::::,:, .. . .. . .... ........-
                                                                                                                                            0
                              H19                                                                                  jo                      .4
                        ean
                                                                                                           @ewe
                                                                  F LATS                                                 L0A-A_A_A_A@k_A. A.@, A A A .0, A A A A AA
                                100   Rods (1650')
                 ____;P-frorn Mean High Water

                                F LATS
                                                                                                                                _.3 Mile Limit

                                                                                               5

              I L                                                                                                                                                                 The Way to the Sea

                         fture 2                                                                                                  access to fishing grounds, the taking of floating plants but not
                         Public Rights and                                                                                        plants which have come to rest on the beach,       and the right to cut
                         Government jurisdiction         Federal jurisdiction: From 3 miles offshore to 200 miles,
                         Boundaries for the                 (with some limitations).                                              ice. Not all Massachusetts decisions, however, have been restrictive
                         Massachusetts Coast                                                                                      with. respect to public rights in private tidelands. In Home fo,rAged
                                                         State J urisdiction: Mean high water and below to 3 miles                Women v. Commonwealth, 202 Mass. 422. (1            1909), the Supreme
                                                            offshore.
                                                                                                                                  judicial Court of Massachusetts ruled that:
                                                         Municipal Jurisdiction: None (unless property          owners).
                                                            From mean low to 3 miles for shellfishing (exceptsea                      "We think itwould betoo strictlydoctrinedto holdthatthe
                                                            clams and ocean quahogs, check local laws).                               trusfforthe public . .-. is for navigation alone. It is wider in
                                                                                                                                      scope, and it includes all'necessary and proper uses in the
                                                         Private Property:, Extreme low water lin      'e or 1650 feet,               interests of the public."
                                                            whichever is less, and above. Property deed may state
                                                            otherwi@e.                                                            However, in another key     Iruling, Butler v.  .Attorney General .19 5
                                                         Flats: Land lying between the mean. high water line and                  Mass, 79 (1907), the same court decided that public sun          .bathing
                                                            the mean low water line, or 1650 feet from the mean                   on private flats or trespassing with intentto swim were not reserved
                                                            high water line, whichever is the lesser.         .   .            I  rights under the Colonial Ordinances. And in a nonbinding
                                                         Submerged land: Land lying below historic mean low                       advisory opinion in 1974, the Supreme Judicial Court found
                                                            .water mark.                                                          unconstitutional a bill which would grant the public the right to
                                                         Public Rights in Tidelands: Land below mean high tide is                 stroll along the beach. It appears that the question of public rights
                                                            open for the purposes of fishing, fowling and naviga-                 in private tidelands in Massachusetts remains partially open.
                                                            tion. It is not open for the purpose of walking on the
                                                            beach or bathing.                                                     Conflicts over Pulblic Access
                                                         Cape Cod National Seashore; Extends from the mean
                                                            high water mark to 1/4 of a mile if the property was
                                                            acquired from private property owners.                                   As the state's po   pulation continued to grow and recreation
                                                    I                                                                             patterns evolved, beachfront communities acquired three distinct
                                                                                                                                  populations: the year-round residents, the summer residents, and
                                                                                                                                  the short-term tourist or.beach-seeker. Development proceeded
                                                                                                                                  rapidly, subdivisions blossomed on the coast; beach cabins were
                                                    Court Interpretations of                                                      built shoulder-to-shoulder for miles. The diminishing supply of
                                                    Public Rights on Tidelands                                                    undeveloped beach would create conflicts as these populations
                                                                                                                                  competed for access to the shore.
                                                       What activities are the public entitled       to pursue in private            Changing public attitudestoward the coastal environment have
                                                    tidelands under the definitions of "fishing,     fowling, and naviga-         also played a role in limiting the amount of shore available for
                                                    tion?" Massachusetts courts generally answer that the- public's               public recreational use. As more has become known about the
                                                    rights are limited to "natural derivatives" of fishing, fowling and           critical role barrier beaches play in shore protection and in
                                                    navigation. For instance, swimming has been construed as                      maintaining natural diversity, further conflicts have arisen between
                                                    navigation, so long as one does not touch bottom on private lands.            beach enthusiasts and those who fear the damaging effects of
                                                    Likewise, the right to fish has been construed to authorize lateral           excessiveor irresponsible beach use.

                                                                                                                            6

                -Who Owns the Shore?

                The Automobile Age: New Pressure on Beaches                                 freight-handling activities obsolete. As a reIsult, towns increasingly
                                                                                            turned their backs on the water, and waterfront property in many
                   In thiscentury, the Massachusetts courts have said littletoopen          communities was appropriated for interstate highway construction,
                up private beaches for recreational use beyond the three rights of          which further cut the water off from the public.
                fishing, fowling and navigation. Meanwhile, however, a revolution
                was taking place in Massachusetts society which would directly                 The past twenty years have heralded a turnaround in the
                affect the question of public access to the coast. As income rose,          fortunes of most Massachusetts waterfronts. This trend was aided
                people's supply of leisure time'increased -dramatically, and even           byseveral factors, including an influx of public money, the passage
                now is projected to double over the next decade. At the same                of the Clean Water Act and successful efforts to abate water
                time, the proliferation of the automobile, the construction of              pollution, and a rediscovery in many towns - Boston, Salem New
                highways, and the growing importance of tourism to the                      Bedford, Plymouth, Gloucester - of their maritime heritage, and
                Massachusetts economy all contributed to-new pressure on beach              the tourism potential therein. Redevelopment of the urban
                areas of the state. The demand for swimming facilities increased by         waterfront became a priority in many coastal communities, with
                72% over a recent twentyyear period, while the supply of available          the provision of public access a key objective.
                public beach increased only slightly.                                          Federal legislation supported the trend toward opening up the
                                                                                            coast for the public. Amendments to the Coastal Zone Manage-
                                                                                            ment Act in 1976 encourage participating coastal, states to include
                                                                                            in their planning "the protection of, and access to, public
                                                                                            beaches." Then in 1977, amendments to the Clean Water Act
                                                                                            required "open space and recreation opportunities" as part of
                                                                                            water. cleanup activities, and stipulated that water quality
                                                                                            management plans must include "consideration of potential use
                                                                                            of lands associated with treatment works and increased access to
                                                                                            water-based recreations."

                                                                                            Public Rights on Filled Tidelands'-
                                                                                            Help from the Courts
                Urban Waterfronts: Decline and Rise
                                                                                               In their efforts to secure public access in redevelopment of
                   Apart from its beaches, the state has witnessed    equally striking      urban waterfronts, Massachusetts towns were aided by a landmark
                changes in its urban waterfronts over the past century. As the              ruling of the Supreme Judicial Court in 1979, which held that lands
                clipper ship and whaling activity declined in the last century, the.        seaward of the historic extreme low water mark (such as certain
                waterfronts entered a period of neglect. Piers rotted; warehouses           filled lands and wharfs) could be held by private parties "only to
                stood vacant,- other, non-water-related activities began to take over       fulfill a public purpose, and that the rights of the grantee to that
                as the value of waterfront property sagged. U ncontr.olled pollution        land are ended-when the purpose is extinguished." Furthermore,
                of bays and harbors further added to the unclesireable nature of            the court ruled that "economic benefit" gene@ally is noi sufficient
                waterfront districts. In the larger cities, the container revolution        to satisfy the "public purpose" test. This is so because the public
                changed the nature of shipping, and made many of the waterfront             purpose has to be specifically in the tidelands. Public access, on

                                                                                             7

                                                                                                                                                                                  The Way to the Sea

                                                   the other hand, is likely to be viewed favorably as a legitimate                 A recent enactment by the state legislature has given public
                                                   public purpose.                                                               officials an effective tool for acquiring public access especially in
                                                      Thisrulingwas based on thecommon lawdoctrine thatartificial                urban areas. Foracentury, Massachusetts General Law, Chapter9l,
                                                   alterations of tidelands such as those caused by filling in a portion         has required a license for all structures built or filling on tidelands.
                                                   of Commonwealth tidelands does not, in itself, alter ownership                In 1983, the Massachusetts General Court made dramatic changes
                                                   boundaries.                                                                   to the existing waterways licensing law. Following the 1979 Court
                                                   Note: To. understand the ownership of an artificially altered                 ruling on tidelands ownership, the new legislation requires that
                                                   tideland, see Fig. 3 below.                                                   development on Commonwealth tidelands must not only "serve a
                                                                                                                                 proper public purpose," but the purpose "shall provide a greater
                                                      The consequences of this ruling are far reaching for the over 40           public benefit than public detriment to the rights of the public in
                                                   Massachusetts communities which have experienced significant                  said lands." (These amendments to Chapter 91 are discussed in
                                                   coastal landfill. In the City of Boston, for example, some 570 acres          more detail in the next section). This legislation provides towns
                                                   of Back Bay are on filled Commonwealth tidelands.                             with a powerful tool to encourage developers of waterfront
                                                                                                                                 property - much of which consists of filled tidelands - to provide
                                                   The Legislature Responds                                                      public benefits, chief among which can be public access.

                            Figure 3
                            Developed Shoreline

                                                                                                                                            COMMONWEALTH
                                                                                                                                                   TIDELANDS
                                                                                                                                                                                  FILLED
                                                                                                               FORMER                                                  SUBMERGED LANDS
                                                                                                                  FLATS                                         PrMtive Low. Water,*---

                                                                                                                           FILLED FLATS                           PRIVATE
                                                                                                                                                               TIDELANDS

                                                                PRIMITIVE MEAN HIGH WATER-*                           --------------------------------

                                                                                                                           8

                Who Owns the Shore?

                                                                                                                                                         Figure 4
                                                                                   EAST BOSTON
                                        MYSTIC RIVER                                                                                                     Filled-in Areas of Boston
                                                                                 9
                                                                                                                            BOSTON
                                                                                                    .8                   Pelham's Map of 1779
                                     CHARLESTOWN                                                                         indicated by heavy line
                                                                                                                              Filled Area
                                                                                                                        Indicated by dot pattern
                                                    10.,
                                                                  2
                                                                                 3

                                                                     ORIGINAL
                                                                      BOSTON                                                   7
                                                                                    .:.    .   6
                                                                a

                                                                                 4

                                                                                               SOUTH    BOSTON

                                                 5                               5a

                                                                  ROXBURY

                            1.   Back Bay, 5 70 acres, 185 6-1894                              5 a. South Bay, 138  acres, 1 850-present
                            1 a. West Cove, 80 acres, 1803-1863                                6.   South Boston, 714 acres, 1836-present
                            2.   Mill Cove, 70 acres, 1804-1835                                7.   Marine Park, 57 acres, 1883-1891
                            3.   Great or East Cove, 112 acres, 1823-1874                      8.   Logan Airport, 150 acres, I 920-present
                            4.   South Cove, 86 acres, 1806-1843                               9.   East Boston, 3 70 acres, 1 880-present
                            5.   Roxbury, 322 acres, 1878-1890                                 .10. Charlestown, 416 acres,. 1860-1896
                                                              11.   Columbus Park, 265 acres, 1890-1901

                                                                                      9

                                                                                                                                                                           The Way to the Sea

                                                 Summary                                                                     Further Reading

                                                     The public's rights in privately-owned land between mean high           Carlson, Jane F., The Public Trust and Urban Waterfront Development
                                                 tide and extreme low tide include the right to fish, to fowl, and to        in Massachusetts: What is a Public Purpose? Harvard Environmental
                                                 navigate. So far, the courts have determined that the public rights         Law Review, Vol. 7, p. 71 (1983).
                                                 do not include walking on the beach, or using the foreshore for             Lahey, Wm., Waterfront Development and the Public Trust Doctrine.
                                                 bathing. In current and historic tidelands, construction must be for        Mass. Law Review, Vol. 70, No. 2, p. 55 Oune 1985).
                                                                                                                             Massachusetts Special Legislative Commission on the Availability and
                                                                                                                             Accessibility of Public Beaches; Public Beach Access and Use in
                                                                                                                             Massachusetts. Final Report. Mass. House Doc. 75, p. 661 (1975).
                                                                                                                             Massachusetts Water Resource Commission. Compilation and Sum-
                                                                                                                             marization of the Massachusetts General Laws, Special Laws, Pertinent
                                                                                                                             Court Decisions, et al. Relating to Water and Water Rights. Boston:
                                                                                                                             State Printing Office (1970).
                                                                                                                             Murphy, Richard H.jr., Boston Waterfront Development Corporation
                                                                                                                             v. Commonwealth. Title to Land Seaward of the Historic Low-Water
                                                                                                                             Line. New England Law Review, Vol. 16, p. 109 (1980).
                                                                                                                             Opinion of the Justices, 365 Mass. 681-694 (1974).
                                                                                                                             Owens, David and Brower, David, Public Use of Coastal Beaches.
                                                 a public purpose, and   must produce a greater public benefit than          University of North Carolina at Chapel Hill (1976).
                                                 public detriment.

                                                    The effortto provide public access to the state's coastwill have
                                                 to take advantage of a number of approaches if it is to compete
                                                 successfully with the pressure for development which is rapidly
                                                 subdividing tracts of coastal property, orwhich in some urban areas
                                                 has tended to wall the population off from the waterfront.
                                                 Fortunately, a number of tools exist which are available for use at
                                                 the local level to address the problem of public access to the water.
                                                 These tools include regulatory approaches, such as tidelands
                                                 licensing and creative zoning for the waterfront; legal tools
                                                 requiring some litigation to establish the existence of historic
                                                 accesswaY5 and easements; and acquisition tactics which can be
                                                 more cost-effective than outright purchase of fee title by the
                                                 public. These approches will be discussed in the following
                                                 chapters, with examples to illustrate their use. The final chapter
                                                 highlights some practical issues involved in making public access
                                                 to the water more effective.

                                                                                                                      .10

                 Legal and Regulatory Tools

                 I 11. LEGAL'AND REGULATORY TOOLS

                   A number of legal and regulatory tools may be used to preserve             and virtually costless, except where litigation is required to settle a
                 or increase the amount of coastline available to the public for              contested case. Coastal communities should maintain an accurate
                 recreational use. This chapter will discuss a number of these tools,         inventory of public ways and easements, for such accessways tend
                 assess their effectiveness, and provide case examples of their use in        to be lost over time unless towns are vigilant in keeping track of
                 a number of localities.                                                      them.
                   The tools to be discussed include protecting and perfecting title              U nder state law, M.G.L. ch. 88 s. 14, each coastal city or town
                 to existing and historic public rights of way, the doctrines of              must provide at least one public landing way to water. Arthestate
                 prescription and implied dedication, and the use of new amend-               level, under M.G.L. ch. 21 s. 17, the Massachusetts Public Access
                 ments to the Massachusetts Chapter 91 statutes on waterways. In              Board is responsible for designating locations of public access to
                 addition, the chapter discusses innovative solutions to the access           great ponds and other waters (see Appendix). Chapter 88 gives
                 shortage which make use of a community's zoning powers.                      residents of coastal communities a right to petition for public
                 Throughout, the focus will be on what is possible to do at the local         landings. This law, moreover, establishes rules and regulations
                 level, with existing tools.                                                  governing use of public landings.

                                                                                                  Since the establishment of new public ways under Chapter 88
                 Keeping What You Have:                                                       requires the payment of compensation, a town's first step to
                                                                                              provide public access should be to prevent existing town ways to
                 Protecting and Perfecting Historic Rights                                    water from loss through disuse or deliberate concealment. A title
                 of Way to the Water                                                          search for shoreline property may be in order. In some cases, the
                                                                                              deed will define the boundary of the property as the mean high
                    Compared with otherapproaches tosecure public access to the               tide line, in which case the town will own the land seaward of this
                 water, perfecting and protecting title to public ways can be simple          line, to the low water mark (Fig. 5).

                                                                                                                                                                         Figure 5
                                                                                                                                                                         Legal Effect of Boundary
                                  Deed Language                                                              Effects                                                     Language in Waterfront
                                                                                                                                                                         Property Deeds
                                  "Property Bounded by the Sea        ..................................     Private Ownership to Low Water

                                  "To the Water    ...................................................       Private Ownership to Low Water

                                  "To the High Tide Line     ..........................................      Town or State Owns Area
                                                                                                             Between High and Low Water

                                                                                                                                                                                     The Way to the Sea

                                                        In other cases, town ways to water were incorporated into                  left and trespass on private property. These property owners often
                                                     deeds when the land was first platted, and over the years these               resent such intrusions, particularly if the offenders litter, make fires,
                                                     paths have been lost through the transfer of ownership and general            or otherwise act irresponsibly, Where both parking shortages and
                                                     neglect. Occasionally this neglect has been intentional: abutting             narrow ways to the water are identified, a natural list of access
                                                     property owners extend their lawns or driveways over the town                 improvement goals may be generated for a community. The list
                                                     way, and maintain it in a manner indistinguishable from their own             may include the negotiations of easements or other agreements to
                                                     property -with one exception: they refrain from paying taxes on               make the area more compatible for public use.
                                                     it.                                                                               Notwithstanding the difficulties inherent in maintaining town
                                                        Some communities have chosen to deal with the problem of                   ways to water, towns should, at a minimum, be knowledgeable
                                                     encroachment on recorded town ways by posting signs and                       about their existence and location. Several steps are necessaryto
                                                                                                                                   research old town ways:
                                                                                                                                       1. Visit the County Registry of Deeds,and examine titles for
                                                                                                                                          evidence of town ways or easements.
                                                                                                                                          Search Tax Exempt records. Usually abuttors to town
                                                                                                                                          ways will not be paying taxes on the public strip of
                                                                                                                                          land.
                                                                                                                                       3. Go through the city or town clerk records, the classifica-
                                                                                                                                          tion of roads index, and the town's property map..
                                                                                                                                       4. Examine the city or town assessor's maps.
                                                     providing additional maintenance,         such as trash barrels and               5. Look for an existing Town Landing Places map.
                                                     boardwalks down to the tidal zone.      Other towns prefer to avoid               6. Search out knowledgeable persons such as the Harbor-
                                                     confrontation with neighbors to the town ways, and merely                            master for anecdotal information.
                                                     maintain a list of local town ways at the local town hall, available              Where title to town ways is unclear, the matter may need to be
                                                     upon request.                                                                 referred to Land Court for adjudication. Generally, the public's
                                                        An activist approach to identifying and maintaining local town             right to access can be established if one can prove that unin-
                                                     ways may be handicapped by the lack of strong local support for               terrupted public use of away occurr    'edfor at leasttwentyye   ars. This
                                                     such an effort. Residents may argue that they already know where              doctrine of prescription will be discussed later in the Chapter.
                                                     the town ways are, and that posting signs would only draw                         The importance for towns to maintain accurate, up-to-date
                                                     unwelcome outsiders to the town's shore. Coastal communities                  records of their town ways to water may not be immediately
                                                     who have sought to be responsible about maintaining their town                apparent. In some harbors, ancient rights of way have long been
                                                     ways have been confronted with vandalism and removal of signs                 superceded by other access ways or by other waterfront uses. For
                                                     and trash barrels.                                                            example, demand for an accessway for fishing may decline
                                                        Many town ways feature little or no parking, which greatly                 temporarily, perhaps due to a deterioration of local waterquality. it
                                                     compromises their effectiveness in providing public access to the             makes good planning sense, however, to preserve town ways
                                                     water. The problem is compounded by those who use the narrow                  which have become obsolete for one use, for new uses in need of
                                                     town ways down to the water's edge, and proceed to tu.rn right or             accessways are bound to arise. For example, in waters where

                                                                                                                           '12

                Legal and Regulatory Tools

                shellfishing has been prohibited, windsurfing has now become an
                attraction in need of a town way to water. Similarly, people may
                seek a relatively secluded spot from which to launch new forms of
                light crafts which can be carried atop an automobile, and which
                therefore need no proper boat launch. Canoes, light sail boats,
                aluminum skiffs and windsurfers belong in this category.
                                                                                                zka
                                                                                                                                                           W7.
                                                                                            SL

                Case Study #1:
                GLOUCESTER'S INVENTORY OF
                TOWN WAYS TO WATER

                   Seeking to establish definitively the location of its historic Ways
                to Water, the Cityof Gloucester undertook an inventoryofits town
                landings along a two mile stretch of its Inner Harbor. Through use
                of the steps outlined above, Gloucester established the existence
                of some 30 public ways to water, including:
                     9 currently used, with title confirmed;
                    15 used historically, so that title could be confirmed
                        relatively easily, and
                     6 with uncertain title, which to be cleared would require
                        further research, and possibly litigation, to be cleared.
                The Gloucester report found a number of cases where private
                encroachment had occurred upon public ways, and recom-
                mended that the city extract payment from encroachers or else
                reclaim the public ways.

                   Changing uses of an urban waterfront may threaten recorded
                historic public accessways. Where this happens, towns have an
                opportunity to require that new development incorporate at least
                as much public access as the development would obstruct.
                Negotiated solutions might give rise to different kinds of access,
                from pedestrian walkways, to visual access and transient boating
                slips.

                                                                                             13

                                                                                                                                                                       The Way to the Sea

                                                                                                                         existing public access rights. Public maintenance of accessways is
                                                                                                                         usually sufficient to defeat any efforts to withdraw publicly
                                                 Case Study #2:                                                          dedicated land. This may require limited public expenditure, hut
                                                 NEWBURYPORT USED HISTORIC TOWN WAYS                                     far less than would be required for outright purchase.
                                                 TO SECURE PUBLIC ACCESS IN NEW                                              Establishing clear title to coastal property may be complicated
                                                 WATERFRONT DEVELOPMENT                                                  by shifting sands and changes in the actual line of mean high tide,
                                                                                                                         where this is the specified boundary of private property. In
                                                    The Town of Newburyport in 1981 completed a ten year                 Provincetown, for example, most private property ends at the
                                                 struggle to preserve public accessways in a portion of its              mean high tide, unlike the rest of the state, where the historic low
                                                 waterfront. The area had been condemned by the local Rede-              water mark is the boundary. Yet the mean high tide line has
                                                 velopment Authority and sold to a private developer. After several      changed considerably since the last official survey, in 1939. Where
                                                 court hearings, the appeals court confirmed that the 6.4 acre site      people have built seaward off the historic private property
                                                 did in fact contain two accessways dating from the 18th century; as     boundary, the town has refrained from taxing them, since they are
                                                 well as a small half-acre park which had been dedicated in              technically on public property. In short, shoreline changes can
                                                 perpetuity to the public. In the subsequent out-of-court settle-        complicate title searches, yet this method will yield significant
                                                 ment, the park was expanded to an acre, anda total of fouraccess-       public access at little cost over the long run. In particular, towns
                                                 ways were granted to the public.                                        should examine deeds forevidence of private ownership ending at
                                                                                                                         the high tide mark, as specified in many deeds (see Fig. 5,
                                                                                                                         above).

                                                                                                                             Finally, it should be added that clearing title to town landings
                                                 Posting Ways to Water                                                   which have been encroached upon, or to the wet sand and
                                                                                                                         foreshore seaward of the mean high tide line, may require some
                                                    Where title to town landings and ways to water are clearly           expenseto litigate.This expense will be minimal where the deed is
                                                 established, the problem may remain of making this information          clear and unmistakeable. In other cases, a negotiated settlement
                                                 available to the public with a minimum of opposition from private       between the town and the abuttor may be preferred.
                                                 owners who abut the accessway. This may require some negoti-
                                                 ations. The town of Barnstable, for example, recently inventoried
                                                 its town ways to water and posted signs to identify them. This          When Informal
                                                 provoked conflicts with local landowners. Marblehead has reached        Access is Restricted
                                                 a compromise by maintaining street signs instead of "Town Way to
                                                 Water" signs to denote public accessways. Falmouth, pursuing a          Prescription
                                                 different approach, maintains at the Town Hall a list of town ways,        One of the mostcommon sources of conflict over beach access
                                                 landings, and public beaches. This list is furnished to the public      occurs in communities where local residents have long used a
                                                 upon request.                                                           private beach, andthe landowner suddenly posts "No Trespassing"
                                                    In general, placing signs identifying public accessways and          signs orotherwise movestoexclude unauthorized visitors. In such
                                                 providing for public maintenance of these areas (for example, by        a situation, the most useful legal tool may be the doctrine of
                                                 installation of trash receptacles) are the best ways to preserve        prescription.

                                                                                                                   14

                 Legal and Regulatory Tools

                    Prescription is similar to the notion of squatter's rights: if you        cases to town residents. Prescription can, in special circumstances,
                use a piece of property long enough without the owner's                       be obtained for the public-at-large. Usually this requires the basic
                permission, you acquire the right to continue using it. In the beach          tests for prescription described earlier - combined with an
                access context in Massachusetts, those seeking to establish                   expenditure by the state, a municipality, or other public body.
                prescriptive rights to an easement over private property must meet
                the following tests, according to General Laws, Chapter 187,                     Prescription as a public access tool may be best used in settling
                Section 2:                                                                    neighborhood disputes over the use of a beach path ora section of
                                                                                              beach, where the owner seeks to keep people out. it may be
                    1. They must prove uninterrupted use of the property for at               relatively easy for local residents to meet the tests of 20 years of
                        least 20 years, although seasonal use may be enough;                  unbroken use, withoutthe owner's permission. Once the court has
                     2. This use must be notorious, and adverse, (i.e. without                found that a prescriptive right exists, the resulting easement is
                        the owner's permission).                                              recorded in the deed to the property in question. Once recorded
                                                                                              the easement cannot be obstructed or denied, even after transfer
                    Prescription may be effective in obtaining rights for qualified           of the title to another owner. Prescription may also be used to
                Yersons not only to cross private property, but also to use the               acquire paths to the beach. Prescription may be of less help,
                beach for recreational    purposes. It   will be  particularly useful at      however, in opening up local beaches to non-resident users, as
                                                                                              they will find it harder to meet the necessary tests.

                                                                                              Case Study #3:
                                                                                              SWAMPSCOTT USES PRESCRIPTION
                                                                                              FOR WHALES BEACH

                                                                                                 The Town of Swampscott benefitted from the doctrine of
                                                                                              prescription when an appeals court ruled in 1981 that the town
                                                                                              had acquired the right, by prescription, to use a 1200 foot beach
                the  neighborhood scale,     and  can  be effective in  resolving long-       known as Whales Beach. The abuttors claimed that their land
                standing beach access controversies. Although prescription can                included the beach, but the court found that the prescription test
                                                                                              of open, continuous, and notorious use for twenty years or more
                only be established through litigation, cases often need not be               had been met, entitling town residents to use of the beach. A
                brought to trial. Where the evidence suggests a finding of                    second test, that the town "Must have taken some corporate
                prescription is likely, a negotiated settlement out of court may              action indicating it believed it had the right to use the land" was
                often be (eached. The threat of litigation, however, may be an                also met from evidence that the town policed and maintained the
                effective "bargaining chip."                                                  beach, and did not tax the owners for the beach front. The court,
                                                                                              however, declined to broaden the prescriptive right to include the
                    The courts in Massachusetts have been reluctant to recognize              general public, limiting it instead to town residents.
                prescriptive rights in the public as a whole, and instead have
                tended to grant prescriptive easements to individuals or in some

                                                                                              15

                                                                                                                                                                             The Way to the Sea

                                                   Implied Dedication                                                         Pub I ic Access in Waterfront Construction
                                                      Yet another legal tool which may be used in certain circum-
                                                   stances to establish a town's right to use a beach or other                Waterways Licensing Under Chapter 91
                                                   waterfront property is implied dedication, Under normal dedica-               Certain 1983 amendments to Chapter 91 of the Massachusetts
                                                   tion, the property owner explicitly deeds his land tothe public, and       General Laws and Acts provide local communities with important
                                                   the public accepts and uses the land as dedicated. Under implied           new tools in their efforts to provide more public access to their
                                                   dedication, no explicit dedication may be necessary, so long as it         shoreline. These amendments are the most significant legal
                                                   can be proved that itwas the owner's intent to have the public use         development pertaining to waterfront land use since 1866.
                                                   his property, and that the publicaccepted this implied dedication.         Chapter 91 requires every project built below the historic high
                                                                                                                              water mark to obtain a license from the Department of Environ-
                                                                                                                              mental Quality Engineering (DEQE), Division of Wetlands and
                                                                                                                              Waterways. A license fee is assessed to compensate for the public
                                                                                                                              rights granted in the license.This provides aclear reminderto both
                                                                                                                              the public and the license holder that public rights exist in those
                                                                                                                              lands.

                                                                                                                                 The 1983 Chapter 91 am,endments provide for-new procedures
                                                      Unlike prescription, which occurs only after twenty years of            as well as substantive requirements relevant to increasing public
                                                   open, continuous use without the owner's permission, implied               access. Procedurally, there are a number of provisions which
                                                   dedication has notime minimum, andcan occurwhere permission                ensure public notification of proposed projects and an opportunity
                                                   to use the land has been given. If permission was given, the courts        to comment. Substantively, waterfront projects mustnowbefound
                                                   may find an implied dedication occurred. In Massachusetts, this            to benefit the public before a license can be issued.
                                                   public use must be accompanied byacceptance of the dedication,
                                                   by a public authority. This acceptance may be demonstrated, for            New Procedures for
                                                   example, by municipal maintenance and policing of the waterfront           Non-Wate r- Dependent Projects
                                                   or beach. Unlike prescriptive rights which can be extinguished if             All proposals for projects not dependent on proximity to the
                                                   not litigated immediately upon a landowner's challenge, dedi-              water, such as restaurants and condominiums, must receive a
                                                   cated rights cannot be revoked, once the court finds that a                public hearing in the affected community. Prior to this public
                                                   dedication occurred. This tool, therefore, potentially offers a way        hearing, the license applicant will publish a notice in the local
                                                   to secure lasting public access much more quickly than does                paper and notice will be sent to the Town Hall. While project
                                                   prescription.                                                              requiring direct access to the water, such as boat docks, do not
                                                       One possible drawback to the use of the doctrine of implied            require a public hearing, a local official can request that a public
                                                   dedication to secure public access to a beach is that those                hearing be held.
                                                   landowners who had been generous in letting others use their
                                                   beach may grow more restrictive, for fears of giving up some of            Criteria for Licensing
                                                   their property rights through implied dedication. Still, this tool may        Before any project can be constructed below the historic high
                                                   be very useful in certain situations.                                      water mark (recall from Chapter 11, Figure 3, that this includes all

                                                                                                                       16

                Legal and Regulatory Tools

                formerly filled tidelands) a number of important determinations             Zoning Solutions
                must be made by DEQE. Any non-water dependent project must
                meet three criteria:                                                           Underthe police powerto provide forthe public health, safety,
                    1 .The project must serve a "proper public purpose."                    and general welfare, local communities enjoy the power to create
                    2. 1The project must provide greater public benefits than               special zones dedicated to certain uses and prohibiting others
                       public detriments relative to the tidelands.                         (M.G.L. ch. 40A). In Massachusetts, local officials enjoy a strong
                                                                                            judicial presumption in favor of validity of all zoning efforts. Among
                    3. The project must be consistent with the' Massachusetts               these are the creation of waterfront districts, overlay districts,
                       Coastal Zone Management Program.                                     "incentive" zoning, and the rezoning for non-residential and
                    On the other hand, Water-dependent uses must satisfy condi-             recreational use of storm-damaged coastal property.
                tions (1) and (2), but consistency with the CZM Program is only
                mandatory for activities in Commonwealth tidelands (below                   Waterfront District
                extreme low water).                                                            Coastal communities can protect and enhance the special
                    Off icials from the community affected by the proposed project          character of the shoreline and waterfront by creating special zones
                can play a signficant role in the proper public purpose determina-          which set forth certain criteria and performance standards for
                tion. This determination will be based largely on whether the               waterfront development. One example is the town of Plymouth,
                proposal adheres to local waterfront or harbor management plan.             which has had a waterfront district since 1973.
                A community with a comprehensive waterfront plan certified by
                CZM, therefore, will be able to influence signficantly the Chapter
                91 licensing decision.
                    To satisfy the benefit-cletri ment and the CZM consistency tests,
                proponents of waterfront projects must     provide significant water-
                related benefits to the public. Local officials may contribute to the
                Commonwealth's evaluation of the adequacy of these public
                amenities at the public hearing and in writing. Substantial public
                access amenities, such as waterfront park areas or public boat slips
                will be needed to satisfy these two tests. Suggestions from local
                off i ci al s 'regard i ng the co m m u n ity's n eeds f o r ce rtai n p u b I ic access
                amenities will be carefully considered in the Chapter 91 licensing
                process. Chapter 91 also allows a developer to provide public
                improvements to a harbor as an alternative to paying a fee for
                tidewater displacement. In lieu of paying this fee, developers may
                be authorized to provide public access themselves, on or off site,
                or contribute to a local fund for public access.
                    The Chapter 91 amendments provide a powerful tool to local
                communities in encouraging waterfront development on tidelands
                to include provisions for public access.

                                                                                            17

                                                                                                                                                               The Way to the Sea

                                                                                                                   City of Beverly has used this tool to secure a walkway along the
                                               Case Study #4:                                                      water's edge.
                                               PLYMOUTHS WATERFRONT DISTRICT
                                                  In order to promote uses consistent with the historic     and    Case Study #5:
                                               maritime character of its waterfront, Plymouth created a special
                                               district which favors the development of marine, historic, and      BEVERLY'S INCENTIVE-ZONED
                                               tourist uses along the town's central waterfront. The ordinance     WATERFRONT DISTRICT
                                               provides for three categories:
                                                  1. Al/owed waterfront land uses;                                    Concerned that development along its waterfront would
                                                  2. Special Permit Uses (which must meet environmental            effectively cut the city off from the sea, Beverly moved in 1976 to
                                                     review procedures); and                                       create a waterfront district in which development densities were
                                                  3. Prohibited uses.                                              set relatively low. Developers seeking to build at higher densities
                                               All approved uses in the waterfront district require public access  maybe granted variances if theybuilda public boa rdwark along the
                                               provisions. (The entire text of the ordinance appears in the        water side of their property.
                                               Appendix.)

                                                                                                                   Transferable Development Rights
                                               Overlay District                                                       Often vieweld as a type of "clustering," a m.ethod of transferring
                                                  A second option available to municipalities to zone on the       development rights (TDR) may be designed on a local level. The
                                               waterfront is to establish an interim "overlay district" for the shore community would identify "sending" areas where development is
                                               which regulates development activity for a certain period oi time.  discouraged, and "receiving" areas where a higher density of
                                               Provincetown has used this approach successfully, and the City of   development is permissible. By allowing the transfer of develop-
                                               Boston has recently proposed such an overlay district for much of
                                               its waterfront to promote its "Harborpark" plan. In such a district,
                                               certain development guidelines are to be followed, notably the
                                               provision of visual and pedestrian access to the water's edge.

                                               Incentive Zoning on the Waterfront
                                                  Another zoning approach which has been effective in securing
                                               public access to the coast is incentive zoning, also known as
                                               "bonus" zoning. Under this approach, the municipality grants
                                               certain concessions to the developer in exchange for public
                                               benefits, such as the provision of public access. incentive zoning
                                               must be done carefully to avoid charges of "spot zoning." The

                                                                                                             18

                Legal and Regulatory Tools

                ment to the receiving area, open space and access in the sending
                areas can be preserved. While no TDR programs have yet been
                instituted in Massachusetts, many have been implemented across
                the country in New York, Florida and California.

                Rezoning of Storm Damaged Property
                   A third zoning tool which shows considerable promise as away
                to increase public access to the coast is a zoning response to
                coastal property damage due to severe storms. Under the police
                power, towns may decide that to allow the rebuilding of damaged
                residential and commercial areas in certain locations poses, a
                threat to the public welfare and safety. The area is viewed as a
                demonstrably hazardous zone. Accordingly, power lines, sewers
                and other public amenities may be deemed too riskyto reintroduce
                to these areas after their damage or destruction.
                                                                                                                                                       NOW
                   An appropriate reuse of this type of coastal property is public
                recreation. Towns may use the opportunity afforded by the storm            provide publicaccessas part of the test thatthe public benefit from
                damage to prohibit further development and repairs in the                  their development outweighs the public detriment:
                affected zone, and zone the area for non-residential, recreational
                use. Public acquisition of storm-damaged property is discussed in          Summary
                the next chapter.
                                                                                              A numberof legal, regulatoryand zoningtools discussed in this
                Development Moratorium                                                     Chaptermaybe utilized to promote public access to the water. The
                on Waterfront Parcels                                                      perfecting and protection of historic town ways to watershould be
                                                                                           the starting point for local efforts.The doctrinesof prescription and
                   Sometimes a town may be interested in acquiring waterfront              implied dedication may be of use in settling neighborhood
                land which otherwise would be developed, but the town may lack             disputes over customary uses of the beach. Chapter 91 tidelands
                the funds necessary to finance a purchase. in such a situation, the        licensing statute and the zoning authority represent powerful new
                                                                                           allies in the campaign to preserve access to the Commonwealth's
                town may take advantage of its authority to require a developer to         shores. In several of the zoning and regulatory approaches de-
                set aside a certain amount of open space for up to three years, and        scribed, the question of a public "taking" private property arises.
                to give the town the option of buying this reserved land. Unlike           This is a legal doctrine which is frequently misunderstood.
                many other states, Massachusetts cannot require developers to              Clarification and references on this topic may be found in the
                dedicate permanent open space or accessways to the public. (An             Appendix.
                exception may be possible where a town can attribute the need for
                recreational open space or accessways as a facet of the new                   In addition to these legal tools, other cost-effective techniques
                development, and not to the community as a whole). As was                  exist for communities to secure more public access to the
                discussed earlier, developers of tidelands may be encouraged to            shoreline. These acquisition options will be discussed next,

                                                                                           19

                                                                                                                                                                          The Way to the Sea

                                                  Further Reading

                                                  Brower, David J., Access to the Nation's Beaches: Legal and Planning
                                                  Perspectives. Chapel Hill (N.C.), University of North Carolina Sea
                                                  Grant (1978).
                                                  Comments, Coastal Recreation: Legal Methods for Securing Public
                                                  Rights in the Seashore, Maine Law Review, Vol. 33, p.9 (1981).
                                                  Improving Your Waterfront: A Practical Guide. U.S. Department of
                                                  Commerce, National Oceanographic and Atmospheric Administration,
                                                  Washington, D.C. (1977).
                                                  Harborpark: A Framework for Planning Discussion, Boston Redevelop-
                                                  ment Authority, Boston, Massachusetts (October 1984).
                                                  LaFargue, James F., Practical Legal Remedies to the Public Beach
                                                  Shortage, Environmental Affairs, Vol. 5, p. 447 0 976).
                                                  Littman, Tidelands: Trusts, Easements, Custom and Implied Dedication,
                                                  National Resource Lawyer, Vol. 5, p. 447 (1977).
                                                  Petrilloj and Grenell, P., Eds., The Urban Edge: Where the City Meets
                                                  the Sea, California State Coastal Conservancy and William Kaufman,
                                                  Inc. (1985).

                                                                                                                     20

                Cost-Effective Acquisition Strategies                                                                                                                                         I V.

                IV. COST- EFFECTIVE
                              ACQUISITION STRATEGIES

                  Traditionally, coastal communities like most public agencies             purchases, where the demand for coastal open space is great
                have sought to acquire public access through purchase of lands for         among local residents. Other money may be available from state or
                the public. In the case of access to waterfront property, however,         federal sources. The Appendix discusses the range of such state
                fee simple purchase of land for the public's use has grown                 programs which may provide money for the acquisition of public
                prohibitively expensive. Not only has speculation driven up the            access to the coast of Massachusetts.
                cost of prime waterfront property, but communities - in an era of
                fiscal conservatism - are strapped for funds. Now communities              Fee-Simple Acquisition via Tax Incentives
                must explore innovative ways by which public access can be
                acquired without paying the considerable sums typically required              Where towns seek less costly alternatives to providing public
                for waterfront property. The first section of this chapterwill discuss     access, they should explore the use of tax incentives to induce
                cost-effective fee-simple acquisition techniques, such as dona-            coastal property owners to donate or sell their property at reduced
                tions, bargain sales, eminent domain, and purchase of storm-               prices to a qualified charity, which includes the local government
                damaged property. The second section discusses less-than-fee-              or conservation commission.
                simple techniques, including the purchase of easements, the use
                of land trusts and conservation easements as incentives to
                landowners to allow public access to their waterfront property.
                Each of these techniques enables a community to acquire
                recreational access to valuable waterfront open space at a
                relatively low cost, and in some cases offer a significant benefit to
                the landowner.
                Fee Simple Acquisition

                Purchase on the Market
                  The most widely used method to increase public access is also            Acquisition by a Charity: Advantages
                the most expensive: outright purchase of land - acquiring the fee             Using qualified non-profit organizations orcharities instead of a
                simple title - by a public entity or non-profit groups such as land        public entity may have important advantages in the management
                trusts. As waterfront property values have risen, few local com-           of the property. This is because private charities typically have
                munities can now afford to fund such acquisition out of general            flexibility that the public sector lacks. It is easier, for instance, for a
                revenues. Some towns may be able to float public bonds for such            charity to limit access in environmentally sensitive areas than it

             I V.                                                                                                                                                                The Way to the Sea

                                                   would be for a public entity. These groups may devote more                   the property, for which her family paid $2,000 in 1893, is now
                                                   concentrated time to the "stewardship" of an open space resource             worth $160,000. Mrs. Donor is an avid swimmer, and wishes her
                                                   than a local government which has many divergent claims on its               land to remain available to the public for recreational use. By
                                                   personnel and budget. Non-profit groups often draw on the                    deeding her land to the town or to a non-profit Ian        d trust, she
                                                   volunteer Lime of naturalists and other experts. Some charities              can:
                                                   enjoy stable incomes, unlike mun.icipal budgets where recreation                *Avoid paying capital gains taxes of $79,000 (50% of the
                                                   funding levels tend to be unpredictable. In Massachusetts, the                   value of the land, minus the basis of $2,000);
                                                   Trustees of Reservations and the Massachusetts Audubon Society
                                                   own and operate thousands of acres of coastal property, much of                  Shelter her ordinary income entirely from taxes;
                                                   which has been donated, and is open to the public.                              -Avoid future property taxes on the land (these totalled
                                                      Below are examples of acquisition strategies which take                       $3,700 in 1983);
                                                   advantage of state and federal tax deductions resulting from                    *Avoid heavy estate taxes to be paid by her inheritors:
                                                   donations to certifed charities. Further examples of how these                  *Realize her wish that her beach be made available for
                                                   tools work may be found at the end of this chapter. One                          public recreational enjoyment.
                                                   warning: in Massachusetts, a tax exemption is available only
                                                   where the land devoted to the public use is open to an indefinite
                                                   number of people. This may exclude certain groups, such as semi-
                                                   private beach associations, from using this approach.

                                                   Donation

                                                      One approach which local communities and non-profit groups
                                                   can use to acquire coastal land for public use is to seek donations                                          4.
                                                   of such land from its owners. This may not be as impossible as it                                                    2
                                                   sounds. Aside from the incentive of public recognition for the
                                                   donor, giving away land may actually save the donor money by
                                                   avoiding payment of high capital gains tax on Federal and State
                                                   income tax. Donations are normally tax-deductible, and so may be
                                                   quite valuable to the donor as a tax shelter.

                                                      Donations allow the donor to deduct from his taxable income
                                                   the fair market value of the gift. Donors should bear in mind that
                                                   adding restrictions to the deed of the donated parcel may reduce             Partial Gifts
                                                   the fair market values of the property, with a commensurate
                                                   reduction of the size of the tax shelter.                                       A second form of donation which will be useful in certain
                                                   Example:                                                                     situations is apartial gift.This is similar to a simple donation, except
                                                   Mrs. Donor owns several acres of beach property which sh              ,e     that the.donor retains fee and unrestricted titleto a portion of hisor
                                                   inherited from her family. Her ordinary income is $155,000, and              herproperty, typicallywhere the house is. Under this arrangement,

                                                                                                                         22

                 Cost-Effective Acquisition Strategies

                the donor may still qualify for substantial tax deductions.                moves him to ahigherbracket (50%).This leaves himwith $52,000
                   For both types of donations, it is up to public officials or            in after tax income (plus the $56,000 he realized from the land
                representatives of land trust to ask property owners whether they          -sale).The netresultfrom selfingthe propertyat its appraised value,
                would bewillingto donate land forpublic use.The tax advantages             therefore, will be an after-tax income of $108,000. Of course,
                to be realized for the donor will be especially useful where the           broker fees on the sale may reduce his profit even further.
                donor has a large ordinary income, and     seeks a tax shelter.               Mr. Donor could do a bargain sale: that is, sell his property tor
                                                                                           less than the appraised value - say, for $70,000 - to a government
                                                                                           body (orto a non-profit landtrust). Now he can pocketthe original
                                                                                           cost of the property ($12,000) plus one half of the profit ($29,000).
                                                                                           The other half gets added to his before tax income, for a total
                                                                                           adjusted gross income of $89,000. This amount is now eligible for
                                                                                           a deduction of $30,000, which represents the difference between
                                                                                           the appraised value and the bargain sale price paid by the
                                                                                           government. With the deduction, the taxable income amounts to
                Bargain Sales                                                              $59,000, which is in the 35% tax bracket. After paying taxes our
                                                                                           man realizes an after tax net income of $109,350. This represents a
                   Bargain sales   of land for public use can be a relatively              savings of $1,350 to the seller through the Bargain sale approach.
                inexpensive way to acquire coastal land for recreational purposes.         In addition, of course, the seller can avoid the expense of broker
                This technique takes advantage of State and Federal tax lawswhich          fees from selling his property on the open market.
                undercertain circumstances can save landowners money byselling                In summary, the Bargain Sale approach can be useful for
                their property for less than it is worth on the open market. This          acquiring land for public access to the waterfront without paying
                technique is particularly useful when the landowner has a big              speculator prices for the land. This technique will work best where
                income, and originally paid much less for his property than it is now      the landowner originally paid refativefy fittfe for his property and
                worth.                                                                     thus stands to realize a substantial capital gain by selling his
                Example:                                                                   property on the open market, and where this added income could,
                Mr. Donor has a plot of beachfront property which he bought for            through the tax system, adversely affect his ordinary income.
                $12,000 thirtyyears ago. This plot is now appraised at $100,000 on         Several examples of tax incentives for donations and bargain sales
                the open market. His before tax income is $60,000, which is in the         appear at the end of this chapter.
                35% tax bracket.
                                                                                           Eminent Domain
                   Undercurrenttax law, the longterm capital gains tax allows the
                sellerto keep all of his original cost of the propertyand one-half of         One otherform of fee simple acquisition may be useful in some
                the profit from the sale, without any taxes. Therefore, in our             situations for towns to acquire public access to the water: eminent
                example, the owner keeps his original $12,000 investment, plus             domain. Massachusetts General Law, Chapter 79 gives a town or
                $44,000 (half of the $88,000 profit). The other half ($44,000) gets        city complete title upon the recording of a "notice of taking" in the
                added to the seller's adjusted gross income before deductions.             registry of deeds. The taking must be for a public purpose, and
                Barring some -substantial deductions to shield this income from            compensation equivalent to the property's fair market value must
                taxes, the seller will realize $104,000 in taxable income, which           be paid.

                                                                                           23

             I V.                                                                                                                                                               The Way to the Sea

                                                      To authorize a taking by a town conservation commission, it               difference between what H U Dwould normally payto compensate
                                                   must be voted by two-thirds vote of the town meeting or city                 for the damages sustained, and the price of outright purchase.
                                                   council, and executed bythe Selectmen orAldermen (orwhatever                 Example:
                                                   municipal body has aldermanic powers). In addition to taking of              A property worth $100,000 sustains $75,000 od damage. Under
                                                   the total ownership of a property (the fee simple title) acityortown         the Flood insurance Program, HUD is authorized to pay $100,000
                                                   may take any lesser interest in any land or water located in such a          to acquire this property. However, if HUD paid only for the
                                                   city or town. This would include taking of a conservation restriction,       $75,000 damage. Then the state would pay the $25,000 difference,
                                                   or an easement for public access.                                            Od take title to the property at a bargain price. The Federal
                                                      Since M.C.L. ch. 88, s. 14 requires each city ortown "where the           Government benefits from paying less than the full marketvalue of
                                                   tide ebbs and flows" to have a public landing, towns may have the            $100,000 as otherwise would be required.
                                                   power of eminent domain to establish public access to the coastin                In Massachusetts, state acquisition programs give priorityto the
                                                   the form of a town way to water. However, this has not yet been              acquisition' of hazardous coastal areas such as barrier beaches,
                                                   determined bythecourts to be a"proper public purpose" tojustify              under Executive Order No. 181: Barrier Beaches. (See excerpts in
                                                   a taking through eminent domain.                                             Appendix V. at the. end of this handbook).
                                                      Because eminent domain requires that fair market value be
                                                   paid for the property, its usefulness in the beach or waterfront             Land Banks
                                                   access case will be limited. Nevertheless, where accessways
                                                   already exist for a subdivision and are platted as such, then
                                                   condemnation to open up the accessway to the general non-                    Case Study #6:
                                                   subdivision public should cost little, since property values will be
                                                   little affected by additional use.                                           NANTUCKET'S SOLUTION
                                                                                                                                LAND BANK FINANCED THROUGH REAL
                                                   Post Flood Damage Acquisition                                                ESTATE TAX
                                                      Oneotherform of low-cost fee-simple acquisition occasion-Ily                  Another fee-simple acquisition approach which has been
                                                   available to coastal communities is Federally aided purchase of              useful in preserving public access to the coast is a tax on local land
                                                   flood-damaged properties. Post flood damage acquisition via the              sales to finance acquisition of public access, beaches and other
                                                   Federal Flood Insurance Program is authorized by the National                open space. This approach was pioneered in Nantucket, where the
                                                   Flood Insurance Act (42 U.S.C. 4102). Under this program, the                tax is set at 2% of all real estate transactions, excluding transactions
                                                                                                                                between family members, transfers between individuals and
                                                   Federal Government can purchase properties "damaged sub-                     government entities, and transfers for charitable purposes. The
                                                   stantially beyond repair" ratherthan pay to reconstruct and rebuild          proceeds go into a land bank, managed by elected officials, which
                                                   them. Pur *chase is authorized when damage exceeds 50% of the                fund the purchase of beaches, marshes, and moors as they
                                                   property's value. The key is that the Federal Government can sell,           become available.
                                                   lease, donate or otherwise transfer the property to any state or local           Nantuckethas recently expanded the land bank byusinga form
                                                   agencywhich agrees to use the propertyfora minimum of 40 years               of tax increment financing, whereby future revenues from the land
                                                   for HUD-approved "sound l"and management."                                   transfer tax would be used to fund a bond issue for the prompt
                                                      A State or local government can take advantage of this program            acquisition of key parcels.
                                                   to acquire coastal lands for the public at bargain by paying the

                                                                                                                         24

                Cost-Effective Acquisition Strategies                                                                                                                                     I V.

                                                                                                                                          E

                                                                                         9W

                  To institute a Nantucket-style land transfer tax, legislative          Acquisition of Less-than-Fee Simple
               approval is required followed by passage of a local ordinance.               The preceding section discusses ways by which coastal com-
               Presentlyland bank proposals are under consideration by Martha's          munities can acquire lands for public use along the shore. This
               Vineyard and Barnstable County. The Legislature is also consider-         section outlines another approach: less-than-fee-simple acquisi-
               ing the allowance of land banks for conservation purposes at a            tion. Under the techniques described here, communities can
               local option (1/3 vote by a municipality).                                purchase or otherwise acquire rights of public access, but the

                                                                                         25

                                                                                                                                                                                The Way to the Sea

                                                    actual title to the land remains with the original property owner.          significant tax savings to the property owner, since such a sale
                                                    The techniques to be discussed here include purchase of                     usually diminishes the value of one's property. Property which is
                                                    easements, the establishment of prescriptive easements, con-                encumbered by an easement will normally be liable for less taxes
                                                    servation easements, and leasing of beach property for public               than before the easement; it will also diminish the resale value of
                                                    use.                                                                        the property measurably, and so will reduce the amount of capital
                                                                                                                                gains tax for which the owner will be liable upon sale of the
                                                    Easements                                                                   property. Donation of an easement will create a tax shelter worth
                                                                                                                                the value of the easement.
                                                       An easement is a limited rightwhich a property owner grants to               The financial incentives to the landowner for selling or donating
                                                    someone else to use the owner's property. Title remains with the            to the public an easement to his propertywill vary, depending
                                                    original owner; the easement is usually limited to a particular             upon his income, tax bracket, and the ar-nount of capital gain he
                                                    person or group of persons. To secure public access to the water       '
                                                    two classes of easements may be useful. The first is the "affirmative' ,    stands to realize from the property's sale.
                                                    easement, which entitles the recipient to some limited use of the               As a practical matter, it will likely be easier to convince owners
                                                    land. The second category is the "negative" easement, such as a             of urban waterfront property to sell or donate easements for public
                                                    conservation restriction, which precludes certain uses of land, but         access than to convince beachfront owners of the merit of this
                                                    may be written to allow public access.                                      approach. Beachfront property owners tend to be private home-
                                                       An easement may be bought and sold. Its price will vary                  owners and generally have not been interested in allowing the
                                                    according to location, size, and other property characteristics.            public onto the beaches for recreational purposes. In other states,
                                                    Depending on-its value, the sale of an easement may provide                 property owners are routinely required to provide public access
                                                                                                                                easements through their property, from public roads to the beach.
                                                                                                                                In Massachusetts, as described above, private ownership rights
                                                                                                                                over recreational sandy beach areas are broader than in most
                                                                                                                                states. As a result, perpendicular access via an easement to the
                                                                                                                                beach is of limited value, unless the public would then have the
                                                                                                                                right to turn right or left, off the narrow easement, onto private
                                                                                                                                sandy beaches.
                                                                                                                                    One solution would be to acquire (through purchase or gift) a
                                                                                                                                public easementalong the beach. This is bound to be much more
                                                                                                                                expensive than the perpendicular accessway, and it will probably
                                                                                                                                be more difficult to find willing sellers or donors.

                                                                                                                                    Easements can be.particularly useful in coastal subdivisions, to
                                                                                                                                provide non-beach-property-owners with access to the beach
                                                                                                                                (especially where the beach is owned by a beach association of
                                                                                                                                local residents). Easements may also be useful, in cases where a
                                                                   ,N
                                                                                                                                beach owner needs money but does not wish to sell his property
                                                                                                                                outright.

                                                                                                                         26

                .-Cost- Eff,ective Acquisition Strategies                                                                                                                                          I V.

                   To guarantee that the acquisition ofeasements in fact increases              'Conservation restrictions effectively preserve land in a relatively
                pu blic access to the beach, it Will be necessary in 'many cases to          undeveloped state which in many cases w      'ill be suitable for beach
                provide parking near the accessway. Lack of parking has hampered             recreational purposes. Trouble may arise, however, should a
                the use of many existing town ways to water; the problem would be            conservation easement be so restrictive as to effectively preclude
                the same for easements to the. water which pass over private                 any public access at all. Towns and private o rganizations seeking to
                land.                                                                        take advantage of conservation -restrictions should carefully
                                                                                             examine proposed language, and if necessary, negotiate for the
                                                                                             inclusion of some public access as a permissible use of the land. In
                                                                                             return, the town could agree to reassess for tax purposes the
                                                                                             conservation restricted property. Under M.G.L. ch. 1984, s. 31,
                          T?cf-5h             5A LT                                          conservation restrictions may go into effect only upon approval by
                                                                                             the Massachusetts Division of Conservation Services (see
                                                                                             Appendix).
                                                                                                Conservation restrictions usually require "proof of manage-
                                                                                             ment" of the easement. Certain non-profit associations such as the
                                                                                             Trustees of Reservations and the Audubon Society or a community
                Limitations on Liability                                                     group may be available to provide the necessary management of
                                                                                             conservation properties. Thoughtful stewardship can result in
                    Under state law Chapter 21 s. 1 7c, "a private, landowner who            sensitive areas being opened up for limited public use. For
                opens land to public recreational use without a fee is not liable for        additional information on the use of conservation easements or
                injuries to persons or propertyclue  'to public use unless the own.er's      restrictions in Massachusetts, see Appendix VI at the end of this
                conduct is willful or reckless." This protection should reassure             handbook.
                those landowners who might then be willing to allow public use of
                their beach or path to the water, but are concerned about
                becoming liable for public safety.
                                                                                             Case Study #7:
                Conservation Restrictions                                                    THE TOWN OF BARNSTABLE'S CONSERVATION
                   Another form of easementwhich may be employed in the eff ort              COMMISSION
                to open up more coastal property for public enjoyment atlowcost                 The Town of Barnstable's Conservation Commission admi-
                is the conservation restriction. Under this approach, the owner              nisters a program whereby the owner of a parcel of land may give
                retains title to his land, but conveys an easement to the town or            up development rights on the parcel in exchange for a 75%
                other governmental or authorized private organization. The                   property tax deduction, in addition to any federal tax deductions
                easement specifies restrictions on the current and future use of the         which accompany the donation of these development rights to a
                land. These restrictions typically result in a decrease in the value of      registered charity or government entity. If the owner allows public
                the property, and thus can provide owners with significantly lower           access to this land as well, then fully 90% of this property tax is
                property taxes immediately, and capital gains tax savings on any             abated.
                future sale.

                                                                                             27

             I V.                                                                                                                                                                   The Way to the Sea

                                                       in all of the easements methods described in this Chapter the              Acquisition Examples
                                                    landowner, and the community or group seeking the easement,
                                                    should' be careful to co      mply with Internal Revenue Code
                                                    Procedures regarding the appraisal of easements. In order for the             Example 1:
                                                    tax deductions to be acceptable by the IRS, certain documentation             Open Sale: At Fair Market Value
                                                    is required. (See Further Reading.)
                                                                                                                                  If sales price is:                            $100,000        $130,000
                                                    Leasing Beachfront Property for Public Use                                    Basis                                             2,000            2,000
                                                       In cases where a beach owner wishes to retain title to his beach,          Capital Gain                                    98,000          128,000
                                                    a town should explore the possibility of entering into an agreement
                                                    to lease a portion of the beach, or an acce5sway, for public use.             Federal taxable gain at 40%                     39,200           51,200
                                                    Leases are flexible instruments and may be written many different             State tax at 7%                                   6,860            8,960
                                                    ways. One variation might yield a stretch of beach for seasonal
                                                    public use, ata lowcostto the town. Another common variant isto               Federal tax at 50%                              19,600           25,600
                                                    include an option to purchase clause, which allows the lessee to
                                                    buy the land before the lease expires. This might allow an owner              NET after tax at 50%        (sales price less state and federal tax)
                                                    and a community to experiment with providing a public beach,                                                                  73,540           97,540
                                                    and only actually sell the land after its suitability for public
                                                    recreational use had clearly been     demonstrated.                           Example 2:
                                                                                                                                  100% Gift of Property

                                                                                                                                  Assuming appraisal of $100,000                    Tax Savings
                                                                                                                                  At 50% tax rate                           39,600 + 525 = $40,125

                                                                                                                                  Assuming appraisal of $130,000                    Tax Savings
                                                                                                                                  at 50% tax rate                           39,600 + 525 = $40,125

                                                                                J

                                                       Leasing beaches for     public  use may alleviate the short term           Example 3:
                                                    shortage of public access,'in a flexible way, at a reasonable price. It       Bargain Sale 1: 50% Bargain Sale
                                                    is less useful as a long term solution to the problem. Leasing may
                                                    also be useful to demonstrate to a skeptical owner that public use            Assuming appraisal of:                       $100,000         $130,000
                                                    - and maintenance - of his sandy beach need not have
                                                    unacceptable consequences to the rest of his property and his                 SALE: 50% fair market value                     50,000           65,000
                                                    privacy. It may encourage him to dedicate the beach area to the               Less 1/2 adjusted basis                           1,000            1,000
                                                    public, in return, perhaps, for certain tax benefits.                         Capital gain                                    49,000           64,000

                                                                                                                           28

                Cost-EffecOve Acquisition Strategies

                Federal taxable gain at 40%                  19,600          25,600      State tax saving at 50%                          525             525
                State tax at 7%                               3,430            4,480     NET return of $100, 000              Cash in hand + tax saving =
                Federal tax at 50%                            9,800          12,800      at 50% rate                          47,758 + 18,025 = 65,783
                NET after tax at 50%                         36,776          5-2,200     NETreturn of $130,000                Cash in hand + tax saving
                VALUE OF GIFT:                               50,000          65,000      at 50% rate                          62,063 + 23,300 = 85,363
                Federal tax saving at 50%                    25,000          32,500      Example 5:
                State tax saving at 50%                          525      525            Bargain Sale 111: 65% Gift/35% Sale
                NET return of $100,000:              Cash in hand + tax   saving         Assuming fair market
                at 50% rate                        $36,770 + 26,025 = 62,310             value appraisal:                          $100,000        $130,000

                NET return of $130,000:              Cash in hand + tax saving=          SALE: 35% fair market value                  35,000         45,000
                at 50% rate                        $52,200 + 33,025       85,225         Less 1/3 adjusted basis                          700             700
                                                                                         Capital gain                              $  34,300      $  44,800

                                                                                         Federal taxable gain at 40%               $  13,720      $  17,920
                Example 4:                                                               State tax at 7%                                2,401           3,136
                Bargain Sale 11: 65% Sale/35% Gift                                       Federal tax at 50%                             6,860           8,960
                Assuming fair market value:               $100,000        $130,000
                                                                                         NET after tax at 5 0 %:                      25,739         33,404
                SALE: 65% of fair market value               65,000          84,500
                Less 2/3 adjusted basis                       1,400            1,400     VALUE OF GIFT:                            $  65,000         $85,200
                Capital Gain                             $   63,600       $  83,100      Federal tax saving at   50%                  32,500         42,600
                Federal taxable gain at 40%                  25,440          33,240      State tax saving at 50%                          525             525
                State tax at 7%                               4,452            5,817
                                                                                         NET return of $100,000               Cash in hand + tax saving=
                Federal tax at 50%                           12,720          16,620      at 50%     .                        $25,739  + 33,025 = $58,764
                NET after tax at 50%                         47,758          62,063      NET return   of $130,000             Cash in hand + tax saving=
                VALUE OF GIFT:                               35,000          45,000      at 50%                             $ 3 3,404 + 43,12 5 = $ 76,5 29

                Federal tax saving at 50%                    17,500          22,750      (Source: Hoose, P.M., 1    981)

                                                                                         29

              I V.                                                                                                                                                                The Way to the Sea

                                                     Summary                                                                     Land Reliance and the Land Trust Exchange, Island Press, Covelo,
                                                                                                                                 Calif. 0 982).
                                                        Coastal communities seeking to improve public access to the              Tax Deductions for Charitable Giving, Arthur Andersen Co., Boston,
                                                     coast'can benefit from a number of cost-effective strategies. These         MA (forthcoming 1985).
                                                     include acquiring fee simple title through donations and bargain            The Use of Less Than Fee-Simple Acquisition as a Land Use Manage-
                                                     sales which also save taxes forthe donor orseller, eminent domain,          ment Too/ for Coastal Programs, National Technical Information
                                                     post-flood damage acquisition, and a land transfer tax to finance           Service, U.S. Department of Commerce, 5285 Port Royal Road,
                                                     the purchase of lands for the public. Less-than-fee simple                  Springfield, VA 22161.
                                                     techniques which can open private land to public use include
                                                     obtaining easements for the public, conservation restrictions, and
                                                     leasing beachfront property for public use. Under state law,
                                                     property owners who allow public use of their lands without a fee
                                                     are not liable for injuries to persons or property due to public u5e.
                                                        The next chapter highlights a number of practical issues which
                                                     need..attention if public access is to be effective.

                                                                       tL@5M
                                                                                                           now

                                                     Further Reading

                                                     Appraising Easements, A project of the National Trust for Historic
                                                     Preservation and Land Trust Exchange (1984).
                                                     Brenneman, R.L. and Bates, S.M., Land Saving Action, Island Press,
                                                     Covelo, Calif. (11984).
                                                     Gifts of Land for Conservation: Tax Advantages to the Land Owner,
                                                     Conservation Law Foundation, 506 StatlerOffice Building, BoAon, MA
                                                     02116 (617) 542-0351.
                                                     Hoose, Philip M., Building an Ark: Tools for the Preservation of Natural
                                                     Diversity through Land Protection, Island Press, Covelo, Calif.
                                                     (1981).

                                                     MACC Handbook, Massachusetts Association of Conservation Com-
                                                     missions, Lincoln Filene Center, Tufts University, Medford, MA.
                                                     Private Opinions: Tools and Concepts for Land Conservation, Montana

                                                                                                                          30

                 Making Access Effective

                V. MAKING ACCESS EFFECTIVE

                    To facilitate full public enjoyment of the coast, attention must               Certain town ways to water are rendered functionally
                be paid to the practical details of making access work effectively. I n            useless through inappropriate prohibitions on parking.
                addition to the provision of boat ramps and municipal beaches,                     Because the construction of parking lots adjacent to
                coastal communities should consider design solutions for public                    beaches often destroys important dune systems, it may
                acce55ways to and along the water to accommodate pedestrians,                      not be possible to enlarge certain beach parking lots.
                cyclists, and the handicapped. In view of limited minicipal                     One solution is to take advantage of municipal parking lots,
                budgets, alternative ways must be devised to provide for the                 such as school lots, and provide a shuttle bus to the beach. A 1982
                maintenance of public waterfront open space. Parking and                     CZM survey found widespread public interest in such a shuttle bus
                transportation problems associated with beach access require                 scheme, with over 70% of those who drive to the beach willing to
                special attention: road and parking lot capacity rather than beach           use a shuttle bus from an inland parking lot. Inland parking lots
                capacity often determines beach access and use policies in most              often make good coastal management sense, since beachfiront
                beach communities.                                                           parking lots are especially vulnerable to storm damage. As one
                    This final section briefly highlights some aspects of providing          example, the Blizzard of 1978 demolished a parking lot on the
                public access which warrant careful consideration. Rather than               Cape Cod National Seashore, built too close to the beach.
                detailed specifications, general areas are described, with exam-
                ples of some promising practical solutions. References are given 'in         Mixed Uses of the Shore
                Further Reading at the end of this chapter.
                Transportation                                                                  Another form of public access to the coast that requires
                                                                                             attention isaccessfrom the water to the land. Maritime commerce,
                                                                                             transportation and recreation all require docking space, and
                    The problems associated with transportation and parking for              facilities for repair and storage. Planners should be sure that these
                beach and other waterfront recreation derive from two main                   water-dependent activities are provided for in waterfront planning.
                causes: -for most people, getting to good beaches requires a car,            In this regard, the Chapter 91 licensing process may be useful (see
                and for a number of reasons including resource constraints, beach            Chapter 11). For example, transient boat slips might be provided by
                parking space is inadequate to meet the demand. Other trans-                 private marinas.
                portation problems include the following:
                    �  Inadequate public transportation to beaches.                             One aspect of successful access planning is providing for
                                                                                             multiple recreational use of the shore. An example: Faced with
                    �  Roads to key beach recreation areas are severely con-                 competition for the beach between swimmers and windsurfer
                       gested at peak periods.                                               enthusiasts, the Town of Hyannis dedicated a separate part of the
                    �  Most beach communities have implemented beach                         beach for windsurfing and boating. The local process of desig-
                       parking fees which discriminate against non-residents.                nating use areascould a5sistwindsurferswho often lodge theircraft

                                                                                             31

                                                                                                                                                                              The Way to the Sea

                                                  in saltmar5h grass during seasonal high tides, thereby clamagingthe         For example, Plum Island Wildlife Refuge is open for limited
                                                  marsh.                                                                      recreational use, but the visitor is greeted by a sign which states the
                                                                                                                              "price" of admission to be a bag of trash gathered from the
                                                  Maintenance and joint Ventures                                              beach.
                                                      Effective access can be limited by poor maintenance of public               For shorefront public property which has not been formally
                                                  accessways, One innovative approach used successfully in several            declared as a "public park," (which must be free to all), it may be
                                                  cities to maintain open space for the public on the waterfront is to        possible for coastal communities to charge nominal user fees to
                                                  enlist the adjacent commercial property owners in the effort. These         help finance maintenance for public recreation. Under state law,
                                                  owners usually share an interest in keeping their surroundings              however, the towns may not make a profit on such an undertaking:
                                                  attractive. Each partnercould contribute a certain amount to a pool         any excess revenues would have to be placed in the municipality's
                                                  which would finance the necessary maintenance operations, at                general fund.
                                                  little or no cost to the municipality.                                          Some waterfront communities may want to explore the
                                                     A related public-private partnership might be to negotiate with          willingness of local institutional owners of shorefront property to
                                                  waterfront developers or property owners to allow public access to          allow public access to their shores during the peak recreational
                                                  their property on a limited basis, perhaps during certain hours of          season. This might be possible for educational institutions who are
                                                  the day. This can have significant public relations value to the            largely dormant in the summer months.
                                                  property owner, and may entitle him to other benefits.                      Liability
                                                     To maintain beach property used for public recreation, another
                                                  approach might be to recruit beachgoers to keep the beach clean.                Where private land owners make their property available for
                                                                                                                              public recreation, security and liability will need to be addressed.
                                                                                                                              Fortunately, under M.G.L. ch. 21 s. 17C, there is an automatic
                                                                                                                              limitation of liability of landowners making their land available for
                                                                                                                              recreational purposes. This statute states:
                                                                                                                                  "A private landowner who opens land to public recre-
                                                                                                                                  ational usewithoutafee is not liable for injuries to persons
                                                                                                                                  or property due to public use unless the owner's conduct is
                                                                                                                                  willful or reckless."
                                                                                                                                  Finally, one should remember that unrestricted access to
                                                                                                                              coastal areas imposes its own costs on the environment. Sensitive
                                                                                                                              areas such as dunes, salt.marshes and estuaries will suffer if public
                                                                                                                              use exceeds a certain threshold. Coastal communities should
                                                                                                                              exercise caution in opening up coastal areas for certain kinds of
                                                                                                                              recreational uses. On the Cape Cod National Seashore, for
                                                                                                                              example, heavy use of off road vehicles was found to cause serious
                                                                                                                              damage to beach grasses, and adversely affected dune formation.
                                                                                                                              Other shore plants and animals are also at risk. If you have

                                                                                                                       32

                Making Access Effective

                questions about appropriate uses of coastal lands they can be           Leatherman, Stephen D. and Paul Godfrey. The Impact of Off-Road
                answered by the Coastal Zone Management Office.                         Vehicles on Coastal Ecosystems in Cape Cod National Seashore: An
                                                                                        Overview. University of Mass., Environmental Institute, Amherst, MA
                                                                                        (1979).
                                                                                        Lynch, Kevin and Gary Hack, Site Planning 3rd Edition, MIT Press,
                                                                                        Cambridge (1984).
                                                                                        Managing Vandalism: A Guide to Reducing Damage in Parks and
                                                                                        Recreational Facilities. Parks and Recreation Commission, Public
                                                                                        Facilities Commission, Boston, MA (1978).
                                                                                        The Affordable Coast. A Citizen Action Guide to California Coastal
                                                                                        Accessway Management. California Coastal Commission and State
                                                                                        Coastal Conservancy, San Francisco and Oakland, CA (1982).

                Further Reading

                A Guide to Designing Accessing Outdoor Recreation Facilities, U.S.
                Department of the Interior, Heritage Conservation and Recreation
                Service, Lake Central Region, Ann Arbor, Michigan (1980).
                Barrier Free Site Design, U.S. Department of Housing and Urban
                Development, Office of Policy Development and Research, Washing-
                ton, D.C. (1977).
                Bikeway Planning Criteria and Guidelines, California Department of
                Public Works, Division of Highways, Sacramento, CA (1972).
                DeChiara, Joseph and Lee E. Koppelman, Site Planning Standards,
                McGraw-Hill Book Company, New York (1978).
                Designing Accessvvays, California Coastal Commission and the Coastal
                Conservancy, Sacramento, CA (1982).
                Innovative Management and Funding Techniques for Coastal Access-
                ways, California Coastal Commission and State Coastal Conservancy,
                San Francisco and Oakland, CA (1981).
                Layout and Design Guidelines for Small Boat Launching Facilities,
                California Department of Boating and Waterways, Sacramento, CA
                (1980).

                                                                                        33

                                                                                                                                                              The Way to the Sea

                                              APPENDICES

                                              1. Plymouth's Ordinance                    Establishing
                                                   a Waterfront District

                                              Zoning Bylaw, Section 401.09, Town of Plymouth,
                                              Massachusetts, July 18, 1973

                                              401.09 Waterfront                                                                                                       AM

                                              A Intent.

                                              To encourage the development of marine, history or tourism land
                                              uses and activities which take advantage of the peculiar charac-
                                              teristics of the waterfront as well as its central location in Plymouth
                                              Center and its proximity to the historic area.

                                              To aid in revitalization of the central area by encouraging uses
                                              which attract people into the area and generate pedestrian
                                              oriented activity.

                                              To complement the seasonal nature of the waterfront and tourist
                                              areas by establishing uses of year-round activity and vitality.

                                              To require special Environmental Design Conditions for special
                                              permit uses to insure, among other purposes, proper emphasis on
                                              a pedestrian environment, adequate pedestrian links between the
                                              proposed development and surrounding properties, high stan-
                                              dards of site planning, architectural design which is compatible
                                              with the adjoining historic area.

                                              B. Allowed Uses.

                                              1. Boat sales, service, rentals, ramps and docks; commercial
                                              sightseeing or ferrying.                                                                                              F7
                                              2. Marine railways, repair yards, storage yards, marine supply                             ff
                                              outlets;

                                                                                                            34

                Appendices

                3. Commercial fishing and seafood wholesale or retail outlets and              2. Some Coastal Terms
                related uses.
                                                                                               Barrier Beach: A narrow strip of beach and dunes separated from
                C. Special Permit Uses Subject to Environmental                                the mainland bya marsh, bay or river. Together the beach and dune
                    Design Conditions.                                                         comprise a dynamic low-lying system which provides a storm
                                                                                               buffer@for harbors, fertile estuaries, and mainland areas behind
                1 . Restaurants and outdoor eating facilities;                                 it.
                2. Recreational, social, or cultural facilities such as theater,               Estuary: A confined coastal water body such as a harbor, bay or
                playhouse, bandshell, outdoor pavilion, night club, community                  tidal riverthat is affected by the rise and fall of the tide and contains
                center;                                                                        a mixture of fresh and salt water.
                3. Hotel, motel, or other tourist related facility,                            Saltmarsh: A coastal wetland extending landward up to the
                4. Specialty shopping facilities such as art galleries, gift shops,            highest tide line and supporting salt-tolerant vegetation. The
                antique shops, import shops, leather and natural goods stores, as              saltmarsh is an extremely productive natural system that exports
                part of a pedestrian-oriented shopping arcade or center; and                   large volumes of organic material (detritus) to the ocean and
                including uses of a more general commercial nature which do not                estuaries. The detritus helps support marine food chains.
                detract from the purposes of the waterfront and which are
                necessary to the economic viability of such a complex;
                5. Multi-family and single family attached residential provided                                             lzb@
                such complexes are designed notto preclude public access to and
                along the shoreline.                                                           3. Coastal Zone Management Office
                D. Prohibited Uses.                                                                 (MCZM) and                Public Access
                1. Industrial uses;                                                               The Massachusetts Coastal Zone Management Office provides
                                                                                               public access assistance to communities through several programs.
                2. General commercial uses not related to any of the stated                    Specifically, MCZM has undertaken to:
                purposes or activities of the waterfront which would not make                     *  publish a series of access guides to the coast,
                appropriate use of its unique potential.                                          9  inventory and map coastal resources including recrea-
                E. Dimensional and Other Requirements.                                               tional areas,
                                                                                                  9  provide technical assistance in drafting model easements
                1. All uses, premises, and structures should be designed to allow                    or planning bylaws for public access,
                all pedestrian access to and along the shore for a minimum                        o  consu It with local planners and developers to assure that
                distance of ten (10) feet inland from the mean high water mark;                      coastal projects adhere to the MCZM plan, including
                2. Minimum setback of major structures from mean high water                          public access objectives, and
                mark shall be twenty-five (25) feet, unless the wetlands designation              & provide funds for public access improvements through
                and regulations of Section 401 02 apply.                                             the Coastal Facilities Improvement Program (CFIP).

                                                                                               35

                                                                                                                                                                        The Way to the Sea

                                                 Coastal Facilities Improvement Program (CFIP)                             Types of Coastal Improvements

                                                    The CFIP is intended to provide financial assistance on a                 Many types of improvement projects will be allowed under the
                                                 "reimbursable" basis to coastal cities and towns so that they can         Coastal Facilities Improvement Program. They include but are not
                                                 plan for, construct, reconstruct, maintain and improve their              limited to the construction.or repair of the following: bulkheads,
                                                 communities up to 50% of the total cost of a projecton a dollarfor        ripraps, piers, wharves, docks, floats, beaches or other structures
                                                 dollar basis up to $1 million for a single project and not more than      used for fishing, marine industry or commerce, marine recreation,
                                                 $1.5 million for more than one municipality.                              tourism or public access purposes. Other allowable facilities
                                                 The basic criteria for eligibility for this reimbursement program         include public upland     platforms, public buildings containing
                                                 include:                                                                  harbor related facilities  for fish handling or storage, parking
                                                                                                                           facilities and walkways   necessary for    access to a waterfront
                                                 1. The community must be a "coastal community' as defined in              facility.
                                                    the MUM Program Plan.

                                                 2. The project site must be public (land or property must be
                                                    owned and maintained by a municipality or by the Common-
                                                    wealth) and it must be one of the following:
                                                    a. determined to be "substandard" by the Secretary of
                                                       Environmental Affairs.

                                                    b. located within a Commercial Area Revitalization District
                                                       "(CARD)."

                                                    c. located within a Special Assistance Development Area
                                                       "(SAIDA)" as listed in the MUM Program Plan.
                                                    d. located within a "Designated Port Area" as listed in the
                                                       MCZM Plan.                                                          Filing of Applications@
                                                 3. The improvement to be made must remain public for the
                                                    duration of the debt obligation incurred by the Commcrn-                  Interested communities should contact the MUM Office to
                                                    wealth (approximately 25 years).                                       discuss proposed projects prior to submitting applications. Appli-
                                                                                                                           cations must be requested in writing from:
                                                 4. The improvement must be related to fishing, shellfishing,                 Massachusetts Coastal Zone Management Office
                                                    marine commerce or industry or for marine recreation, tourism
                                                    or public access purposes.                                                Coastal Facilities Improvement Program
                                                                                                                              100 Cambridge Street - Room 2006
                                                 5. All necessary per 'mits and licenses must be sought or obtained           Boston, Massachusetts 02202
                                                    prior to submitting an application.                                       (617) 727-9530

                                                                                                                    36

                Appendices

                4. Other State Agencies Active                                              DEM acquisitions are for property interests held by the state.
                                                                                            Frequently arrangements are made to lease back a DEM-owned
                     in Coastal Access                                                      property to another entity for management. Occasionally DEM
                The Public Access Board, Department of Fisheries,                           may rdtain a property until an alternative public entity can afford to
                Wildlife and Recreational Vehicles                                          take over the property. DEM seeks to cooperate with local

                   Now part of the Department of Fisheries, Wildlife and
                Recreational Vehicles, since 1962 the Public Access Board (PAB)
                has funded the construction of some 14 coastal, 9 river and 30
                Great Pond facilities for boat launching purposes. While these
                facilities remain in state ownership, frequently a management
                agreement is executed between the PAB and the municipality for
                the operation and maintenance of the facility. These management
                agreements allow for revenues generated to be used for the
                upkeep of the facility. All facilities funded by the PAB must be
                ava i lab le for pu bl ic u 5e o n a non-d iscri m i natory basis. The PA B may
                also provide funds for acquisition of public rights of way,
                construction of parking areas, and for the construction of public           governments and     non-profit organizations so    that they assume
                trails and walkways to the shore. For more information contact:             responsibility for management of a property, to free state resources
                   Public Access Board                                                      for actual acquisition purposes. For more information:
                   Department of Fisheries, Wildlife and Recreational Vehicles                 Department of Environmental Management
                   100 Cambridge Street - 19th Floor                                           Division of Forests and Parks
                   Boston, Massachusetts 02202                                                 Office of Planning and Development
                   (617) 727-1614                                                              225 Friend Street
                Department of Environmental Management (DEM)                                   Boston, Massachusetts 02114
                                                                                               (617) 727-3160

                   The Department of Environmental Management has responsi-
                bility for acquiring and maintaining state parks, forests, recreational     Office of Conservation Services
                areasand reservations. In particularD.EM has extensive funds from
                Open Space bonds which are designated for coastal access                       Part of the Executive Office of Environmental Affairs, the Office
                planning, acquisition and development. DEM may be able to                   of Conservation Services (CS) administers federal and state grants
                provide technical assistance to municipalities to undertake public          for local conservation projects. CS administers three programs:
                access improvements. DEM also can provide.open space and                       e Self-help
                natural resource planning to enable a municipality to protect                  * Urban Self-help
                future access options.                                                         o Land and Water Conservation Fund (Federal).

                                                                                            37

                                                                                                                                                                                 The Way to the Sea

                                                       CS generally funds projects for passive recreation, for acquisi-          6. Notes on Conservation Restrictions
                                                    tion of coastal marshes and sensitive areas, and for beaches.
                                                    Although CS grant money is provided on a percentage match                        Under federal law, to qualify for tax deductions, the gift of a
                                                    basis - with CS paying up to 90% of the project under the Urban              conservation easement or "restriction" must be a qualified
                                                    Self-help program - title to the project remains with the grantee            conservation contribution." In other words, it must meet three
                                                    municipality. In most cases the state policy of non-discrimination           tests:
                                                    for puNic use app@ies to CS-iunded projects. Where federal Land                  a. The restriction must represent a "qualified real property
                                                    and Water Conservation Fund money is used, a project may be                         interest;"
                                                    allowed to charge non-residents up to twice the user fee required
                                                    of residents. For more information:                                              b. The donation must be made to a "qualified organ-
                                                    Conservation Services                                                               ization;"
                                                    Executive Office of Environmental Affairs                                        c. The donation must be made "exclusively for conser-
                                                    100 Cambridge Street, 20th Floor                                                    vation purposes."
                                                    Boston, Massachusetts 02202                                                      The first test, a "qualified real property interest," means that to
                                                    (617) 727-1614                                                               qualify for federal tax benefits, the restriction must be granted in
                                                                                                                                 perpetuity on the property. (Under Massachusetts law the restric-
                                                                                                                                 tion need not be perpetual to qualify for state tax benefits.)
                                                                                                                                     The "qualified organization" referred to in the second test
                                                                                                                                 includes government entities including conservation commis-
                                                                                                                                 sions, publicly supported charities, and other special qualifying
                                                                                                                                 organizations.
                                                                                                                                     The third test requiring that the donation be made "exclusively
                                                                                                                                 for conservation purposes" includes the following:
                                                                                                                                     *  Preservation of land areas for outdoor recreation, or
                                                    5. Excerpts from Massachusetts                             Execu-                   education of the general public;
                                                         tive Order No. 181: Barrier Beaches                                         a  Protection of a relatively natural habitat of fish, wildlife or
                                                                                                                                        plants, or similar ecosystem;
                                                       "Barrier Beaches shall be given priority status for self-help and             *  Preservation of open space, including farmland and
                                                    other state and federal acquisition programs and this pridrity status               forest land, where such preservation is for scenic enjoy-
                                                    shall be incorporated into the Statewide Comprehensive Outdoor                      ment of the general public, or part of a clearly delineated
                                                    Recreation Plan. The highest priority for disaster assistance funds                 federal, state, or local government conservation policy;
                                                    shall go towards relocating willing sellers from storm damaged                   *  Preservation of an historically important land area or a
                                                    barrier beach areas."                                                               certified historic structure.
                                                       "At a minimum, no development shall be permitted in the
                                                    velocity zones or primary dune areas of barrier beaches identified
                                                    by the Department of Environmental Quality Engineering."

                                                                                                                           38

                 Appendices

                   Other Coastal
                    Recreation Information                                                               ME&= . . . . . . . . . .

               Massachusetts Department of Environmental Management
               Massachusetts Outdoors: Statewide Comprehensive Outdoor
               Recreation Plan. Boston: State Printing Office, 1976.
               Division of Parks and Recreation
               Department of Metropolitan District Commission
               727-5250. Brochures on MDC parks, beaches and facilities; maps;
               schedules of events.

               Division of Forests and Parks
               Department of Environmental Management
               727-3180. Locational and natural history brochures; maps;camping
               and parkland rules and regulations.
               Division of Marine and Recreational Vehicles
               Department of Fisheries, Wildlife and Recreational Vehicles.
               727-3900. Boat and recreational vehicle licenses and registration;
               marine safety education.

               Division of Marine Fisheries
               Department of Fisheries, Wildlife and Recreational Vehicles.
               727-3195. Information on saltwater fishing and lobster licenses.

               Division of Tourism
               Department of Commerce and Development
               727-3201. Travel brochures; maps; guides to sites, events,
               restaurants, and accommodation.

                                                                                    39

                                                                                                                                                                                                AA 0        SERVICES, CIR,,LIBRARY
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