:methods for Massachusetts communities to provide public access to the coast. Massachusetts Coastal Zone Management Office. Boston, Mass.:Massachusetts Coastal Zone Management,[1985] Coasts Massachusetts Recreational use. Public use Massachusetts. Coastal zone management Massachusetts. Tha Way @((D) @hce Sea -Ilk ..... ....... . L z0- 64 LZA) 14 d0t* 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 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 3 6668 14111658 4 Mk( h&A S)@ Dullzahv, k zo-q Wva- 0996a e a)o fc, 0 flawtw"