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

                                        Technical Paper Number 132

                LDESIGNING A PUBLIC COASTAL ACCESS PROGRAM FOR THE OCEAN STATE:

                                      A POST-NOLLAN ASSESSMENT

                                              February, 1988

                                                                        COASTAL ZONE

                                                                    INFORMATION CENTER

                KFR
                 458                       Division of'Planning
                 164             Rhode Island Department of Administration
                 1988                      265 Me-I.-rose Street
                                           Providence, RI 02907

                    The Division of Planning, Tlhode Island Department of Administration, is established
              by Chapter 42-11 of the General Laws as the central planning agency for state
              government. The work of the Division is cruided bv the State Planning -Council, comprised
                                                         o       -
              of state, local, and public representatives and federal and other advisors.

                    The objectives of the Division are: (1) to prepare strategic and systems plans for the
              state; (2) to coordinate activities of the public and private sectors within this framework
              of policies and programs: (3) to assist local governments in management, finance, and
              planning; and (4) to advise the Governor and others concerned on physical, social, and
              economic topics.

                    This Technical Paper is one of a series prepared by the Division of Planning. They
              present information developed through planning activities to state and federal agenices,
              local governments and the public.

                    Activities of the Division are supported by state appropriations and federal grants.
              The contents of this report reflect the views of the Division of Planning,         Which is
              responsible for the accuracy of the facts and data presented herein. The contents do not
              necessarily reflect the official views or policies of other sponsoring agencies.        This
              publication is based upon publicly-supported research and may not be copyrighted. It may
              be reprinted, in part or full, with the customary crediting of the source.

                                                                           11"ZI IV

                                                        ABSTRACT

                Title:     Designing a Coastal Public Access Program for the Ocean State:
                           A Post -Nollan Assessment

                Subject:   Resource Planning/Management

                Date:      February, 1988

                Agency:    Division of Planning, Rhode Island Department of Administration

                Source
                of
                Copies:    Rhode Island Division of Planning
                           265 Melrose Street
                           Providence, Rhode Island 02907

                Series
                No:        Technical Paper Number 132

                Abstract:  This document assesses programatic needs and legal considerations relevant to
                           the development of a comprehensive approach to protecting and expanding
                           public access to the shoreline of Rhode Island.

                           Aspects of the legal environment of coastal access, including pertinent
                           decisions of Rhode Island courts, and the probable implications of the the U.S.
                           Supreme Court's 1987 decision in   'Nollan v. California Coastal Commission are
                           discussed. Recommendations for an expanded program coastal access effort
                           are made in the areas of coastal access planning, access expansion,
                           development,     maintenance     and   enforcement,    promotion    and public
                           information, and landowner protection.

                                                          Preface

                      This technical paper was prepared by George W. Johnson, Principal Planner, with
                supervision and assistance provided by Daniel W. Varin, Associate Director. r4s. Kim A.
                Gelfuso, Word Processing Typist, typed and corrected the paper. The project evolved as a
                multiple-purpose endeavor.     While primarily developed for presentation at a "Coastal
                Access Roundtable Discussion" sponsored by Rhode Island Shoreline Access Concern
                (RISAC) on January 30, 1988, Parts I and Il of the paper also served to partially fulfil the
                requirements of the course      "Planning Law" offered by the Graduate Curriculm in
                Community Planning at the     University of Rhode Island, in which the principal author
                participated during the fall of 1987.
                                  a

                      The preparation of this  paper, and the participation of the Division of Planning in
                the Coastal Access Roundtable Program support the implementation of Ocean State
                Outdoors    the Recreation Element of the State Guide Plan, which recommends
                development of a comprehensive coastal public access program for Rhode Island.

                                                TABLE OF CONTENTS

              PART        SECTION                                                                   PAGE

              I.          Introduction                                                                  1

                          A.    The Dilemma of Shrinking Coastal Access in the
                                 "Ocean State"                                                          1

                          B.    The Physical Context of Coastal Public Access                           1

                                1.    Pertinent Geography of the Shoreline                              1
                                2.    Types of Coastal Access                                           3

                          C.    Coastal Access Initiatives of State Government in
                                 Rhode Island                                                           4

              Ii.         The Legal Framework in Which Public Rights to the Shoreline Reside            6

                          A.    Common Law Doctrines                                                    6

                                1.    The Public Trust Doctrine                                         6
                                2.    Implied Dedication                                                7
                                3.    Prescriptive Easement                                             8
                                4.    Customary Usage                                                   9

                          B.    Constitutional, Statutory and Regulatory Provisions                     9

                                1.    The Rhode Island Constitution                                    10
                                2.    Rhode Island Coastal Resources Management Act                    10
                                3.    The State Guide Plan                                             11
                                4.    Local Land Management Tools                                      12

                          C.    The Nollan Decision                                                    12

                                1.    Overview of the Facts and Travel of the Case                     12
                                2.    The Decision                                                     13
                                3.    Implications of the Decision for Coastal Access
                                       Provision                                                       14

              III.        Designing a ,rost-Nollan" Coastal Access Expansion Program for
                            Rhode Island                                                               17

                          A.    Program Premise                                                        17

                          B.    Program Elements                                                       18

                                1.    Access Planning and Policy Development                           18
                                2.    Access Expansion Strategies                                      19
                                3.    Access Development, Maintenance and Enforcement                  25
                                4.    Access Promotion and Public Information                          26
                                5.    Landowner Protection                                             27

                                         TABLE OF CONTENTS

              PART     SECTION                                                     PAGE

              IV.      Summary and Conclusion                                         29

                       Notes                                                          31

                                                  ii

               1.    INTRODUCTION

                     A.    The Dilemma of Shrinking Coastal Access in "The Ocean State."

                     The sea and its shores have nurtured Rhode Island and its inhabitants since pre-
               colonial times, providing food, avenues of commerce and trade, and increasingly, a
               recreational outlet. Public access to the salt water shoreline is a long and proud Rhode
               Island tradition taken as a right by its citizens, and indeed guaranteed by tile state's
               Constitution. As recently as the mid 1950's a majority of Rhode Island's shoreline was
               undeveloped, open land and coastal communities typically consisted of farms and fields,
               small villages and fishing ports, and scattered summer colonies. Development conditions
               and small town folkways were such that reaching and utilizing the coastline presented
               relatively few conflicts for citizens of most areas. Beginning in the late 1970's, however,
               and accelerating in recent years, a surge of growth and expansion has swept like a wave
               over the state's coastal areas bringing new residents, swarms of seasonal visitors and
               burgeoning residential and commercial development to accommodate them. During the
               1970's when the state as a whole remained stable in poptilation growth, many coastal
               communities witnessed population expansion of 50-70%.              Figure 1 illustrates the
               dramatic growth of Rhode Island's rural coastal communities relative to other areas of the
               state during the 1980's. While recent land use data are unavailable, clearly a significant
               portion of this development has occurred proximate to the shoreline, where the amenities
               of a coastal lifestyle are most immediately enjoyed.          Today, in the late 19801s, as
               desirable coastal parcels have declined in number, the state has witnessed an escalation of
               coastal real estate values to unprecedented levels and a consequent increase in the
               exclusivity and privatization of the shoreline.

                     Coinciding with this period of expansion of development in the coastal region, have
               been societal trends of increasing average income and lesiure time which have stimulated
               greater public demands for outdoor recreation, particularly water-based recreation. The
               1986 State Comprehensive Outdoor Recreation Plan found that 65%, of Rhode Island
               residents regularly enjoy saltwater swimming, nearly 50% participate in boatiV, and a
               quarter of the state's residents engage in saltwater fishing at least once per year.-

                     These intersec 'ting trends of shoreline development and growing public demands for
               coastal access and water-based recreation challange Rhode Island to develop a more
               aggressive, pro-active program for insuring that the present and future generations of
               Rhode islanders may continue to exercise their guaranteed rights to access and utilize the
               shore.

                     B.    The Physical Context

                     1.    Pertinent Geography of the Shoreline

                     A brief orientation to the physical context in which access issues arise is necessary
               in order that the legal climate in which coastal access issues reside be fully understood.
               The coastal zone is generally described as being comprised of three distinct areas or
               categories of land, each of which has distinct legal status in regard to public and private
               property rights (including access). These areas are:

                                                                                                                           A

                                       REELATIVE GROW-7;@@, IN HOUSING UNITS
                                       BY COMMUNITY TYPE AND LOCATION

                                                      1980-1985

             NEW UNITS (1)
             PER 1000
             EXISTING (19801 UNITS

                40-

                                                                                                   COASTAL
                                                                                                   RURAL (2)

              .30-

                                                                                                  INLAND
                                                                                                   RURAL (2)

               20-

                          %
                           %                                                                       STATEWIDE

                                   000 *1111,
               10                      %

                                                           00000

                0
                        1990           1991          1982          1983           1984          1905

                          (1) Housing Units Authorized by Residenlial Building Permits
                          (2) "Rural' Defined at Community PaVuloliOn Lots Than 15,000 in 1980
                          (3) "Urban* Defined ris Community Povulalion Grecler Than 50,000 in f98O

                                                             2

                        a)    uplands - are lands which lie landward of the reach of mean high tide,
                              including the so-called "dry" portion of the beach face which lies between the
                              vegetation line and the mean high tide line. The dry sand area above the mean
                              high tide line is washed by waves during extreme tidal events such as the
                              spring tide and during storms.
                                   0

                        b.    tidelands - lands situated between the lines of mean high tide and mean low
                              tide, also known as the intertidal zone or the foreshore.       These areas are
                              regularly washed by the tides.
                        C.    submerged4ands - or the portion of the beach lying seaward of the mean low
                              water line.-

                        Ownership status, or title in coastal lands generally adheres to principles derived
                  from English common law, as modified by subsequent developments including the
                  American Constitution. Uplands adjoining most of the U.S. coastline are privately-owned
                  and are subject to use, occupancy and conveyance by their owners in accordance with the
                  full panoply of rights which adhere to inland (non-coastal) lands. Title in submerged lands
                  (extending seaward for three miles) is held by the states.

                  The state's rights in tidelands are subject to the what is known as the public trust
                  doctrine. This doctrine, described more fully in Part II.A. I., essentially constitutes a
                  trusteeship relationship between the state and its         citizens covering the resources
                  involved.   The state's ownership and stewardship of      tidal and submerged lands must
                  benefit the general public, and may not be abborgated.

                        2.    Types of Coastal Access

                        Just as the shoreline region may be categorized, "access" itself is a muli-faceted
                  concept. Coastal public access can be defined simply as the public's right to get to and
                  use the public resources of the salt water shoreline (e.g. the tidelands and submerged
                  lands). Applying this definition of access to the physical geography of the coast involves
                  the concept of lateral access, involving movement along the shore, and perpendicular
                  access, or getting to the shore. Broader definitions of "access" include the concept of
                  visual access or an ability to view the coastline and water from    4various vantage points,
                  some of which may be physically remote from the shoreline itself.

                        Both forms of physical access present potential conflicts between public and private
                  rights in coastal properties. While the public may be given the right to use the resources
                  of the shore and sea (as they are under Rhode Island's Constitution), getting to the shore
                  at various locations necessitates physically traversing privately-owned uplands. Assuming
                  this problem is surmounted, and the shoreline is reached, use of the public trust tidelands
                  for lateral access is feasible only part of the time unless our intrepid shore seeker doesn't
                  mind getting his feet wet during periods of higher tides.

                        Thus, the application of private and public property rights, as they have evolved
                  with regard to the peculiar geography of the land-sea interface, has resulted in the
                  creation of a curious situation. Public rights to the shore proper (e.g. the wet-sand) are
                  established in principle under laws; but enjoyment and exercise of these rights encounter
                  practical difficulties due to the interposition of the countervailing rights of shorefront
                  landowners. This perplexing situation is the impetus for the public's demand for practical
                  means in which to exercise their coastal privileges, and in turn, is the stimulus for the
                  creative attempts of government to expand access opportunities up to the limits allowed
                  by law.

                                                                3

                        C.   Coastal Access Initiatives of State Government in Rhode Island

                        While the recent coastal development boom has stimulated demands for more
                  aggressive government action to protect and expand the rights of the public to the shore,
                  state involvement in the access question dates (at least) to the mid-19501s. In 1956, the
                  Rhode Island General Assembly created a "Special Commission to Discover Public Rights-
                  of-Way to Water Areas of the State", and, in 1958 (following the Commission's submission
                  of a report outlining the complexity of such a task) established a permanent "Rhode IsIRnd
                  Commission on the Discovery and Utilization of Public Rights of Way". The Commission
                  was charged with carrying on "continuing discovery of the public rights of way to the
                  water areas of the state" in order to "define and mark and cause to be opened for public
                  use all discovered rights-of-way".     The major contribution of the Commission was
                  publication, in 1970, of a vollv inous report listing, mapping, and analyzing some 148
                  rigbts-of-way to tidal waters.     This was followed in 1974 by publication and wide
                  distribution of a map showing the general location of the rights-of-way documented in the
                  Commission's lenghty report.

                        While both the map and tile report upon which it was based, were criticized as being
                  inaccurate and/or misleading in some respects, they represented the first systematic
                  attempts to document and expand public coastal access in Rhode Island. The Commission
                  also encountered difficulties in its attempts to mark the rights-of-way it discovered.
                  Signs it posted were quickly removed or vandalized, and more permanent bronze markers
                  set in concrete bases were also stolen or removed.

                        Faced with growing criticism of the effectiveness of the Commission, the General
                  Assembly, in 1977, abolished the body and assigned responsibility for tidal rights-of-way
                  to the Coastal Resources Management Council (CRMC) (See section H.B.3). The CRMC
                  responded by establishing its own Rights-of-Way Subcommittee. Perhaps intimidated by
                  the attacks upon and discrediting of the previous legislative commission's research and
                  mapping, the CRMC's Subcommittee elected to address the coastal access question
                  through an exhaustive, expensive and time-consuming program of legal research and
                  documentatinn of all presumed right-S-of-way to tidal waters. This process, begun in 1978
                  and continuing to the present, essentially re-covered-obstensibly with greater precision
                  and certainty-the ground covered by the legislative Commission from 1958     'to 1970. By
                  1986, some ten years and $500,000+ worth of legal research into the CRMC's
                  Subcommittee's work, a total of 159 rights-of-way to the coastlinerhad been found to have
                  sufficient legal standing to be formally designated by the CRMC. a  A number of the sites
                  designated, were however, challenged in the courts and their status remains unresolved.
                  The Subcommittee has also indicated that, based upon information and evidence brought
                  forward during its research process, some 150-300 additional rights-of-way may exist
                  which would require legal research to verify.

                        The CRMC, like its predecessor Commission, has been relatively unsuccessful in
                  promoting the marking and public awarenes of designated rights-of-way. Although the
                  Subcommittee commissioned the design and casting of some 200 bronze medallions, only
                  13 right@-of-way have been marked by the state. Despite the urging of the State Planning
                  Council that the Subcommittee provide public information on the location and usage
                  characteristics of designated rights-of-way, (except for producing engineering drawings of
                  the rights-of-way designated in one community) the CRMC has been unable to extensively
                  promote or publicize the products of its coastal access research.

                        One realm in which Rhode Island has moved very aggressively to expand coastal
                  access is direct acquisition of coastal land for public recreation. Over the past decade
                  the acquisition of coastal open space and recreation land has been a priority of tile

                                                              4

                 Department of Environmental Management and, as a result has contributed substantially
                 to the expansion of coastal access.        Through various means, the       Department of
                 Environmental management has provided a dramatic 85% increase in the quantity of
                 public land on the shoreline. In 1975, the state owned some 2,600+ acres fronting on the
                 coast. By 1986, through fortuitous acquistion of surplus federal lands to create the Bay
                 Islands Park System and efforts by the Department of Environmental Management to
                 protect important coastal sites on Block Island and the south shoreline, Rhode Island's
                 coastal recreation system totalled over 4,900 acres. While the isolation and fragility of
                 some of this land limits its ability to provide public access, clearly the addition of some
                 2,300 acres fronting on the coastline affords a multitude of new and diverse opportunties
                 for Rhode Islanders to reach and enjoy their shoreline.

                       In addition to state land acquisition, communities maintain local park and recreation
                 systems. While a number of coastal communities have important shoreline recreation
                 sites, local land acquistion for park system expansion has not, in general, been a priority
                 of Rhode Island's local governments during the late 1970's and early 19801s. The major
                 reason for this has been a drastic decline in the funding available for land acquistion. A
                 major source, the federal Land and Water Conservation Fund, has been drastically
                 curtailed under the Carter and Reagan years. Funding available to Rhode Island under
                 this program has fallen from $3.7 million in fiscal year 1976 to $0.3 million in fiscal 1987.

                       No direct state funding was available for park land acquisition from the mid-1970's
                 (when the remenants of the 1965 Green Acres Bond Fund were exhausted) until the 1986
                 Open Space Bond Issue was distributed last year.

                       While the CRMC's Subcommittee has been engaged in painstaking legal research, the
                 access situation along portions of Rhode Island's coast has grown acute. A crisis point
                 appears to have been reached in places such as the Newport waterfront, where a working
                 harbor of docks and fishing piers has undergone a near complete transformation into a
                 "gold coast" of exclusive condominiums, up-scale commerical developments and time-
                 share resort accommodations. In the process, access advocates have charged, the public's
                 historically-respected rights to utilize wharfs and piers, which comprise waterfront
                 street-ends, have been extinguished with the acquiecsence of the CRMC (through its
                 issuance of the requisite development permits without stipulations of continued public
                 access rights). Not until 1985, with most of the waterfront developed and faced with
                 growing criticism, did the CRMC commission a special study of the public's rights to
                 Newport's waterfront.

                       While Newport continues to represent the extreme in the erosion of historic coastal
                 access rights by the onslaught of shoreline development, the experience there points to
                 the difficulties of the fragmented appraoch to state's coastal access program. Limited as
                 it is to ponderously researching presummed rights-of-way based upon information
                 presented to it, the rights-of-way program is ill-equipped to respond effectively to the
                 challenge of protecting access along a rapidly-developing shoreline, and even less able to
                 produce the planning and vision needed to craft the comprehensive coastal access
                 initiatives necessary to meet the shoreline usage needs of present and future Rhode Island
                 citizens. As expensive land and exclusive waterfront developments have become the norm
                 along the entire coastline, the economic stakes in excluding the general public have risen
                 accordingly. If Rhode Island is to truly guarantee the rights of its citizens to enjoy the
                 privileges of the shore in a meaningful fashion, the time has come for a more aggressive,
                 pro-active and encompassing coastal access effort.

                                                              5

                   H.    THE LEGAL FRAMEWORK IN WHICH PUBLIC RIGHTS TO THE SHIORELINE
                         RESIDE

                         Since all public undertakings aimed at protecting and expanding coastal access in
                   Rhode Island must be executed within the legal framework which defines public and
                   private rights in coastal lands and resources, an understanding of the salient aspects of
                   this area of law is a necessary prerequisite to the development of new program initiatives.
                   Accordingly, this section of the paper is devoted to a concise review of the most
                   prominent common law theories and provisions of codified law affecting coastal access.
                   This review, which focuses upon Rhode Island cases and statutes, draws heavily from
                   previously-published analyses.

                         The rights of the public to get to and utilize (e.g. access) the resources of the
                   coastline obtain from a combination of common law, constitutional entitlements and
                   statutory enactments.     While shoreline access rights accorded under the common law
                   differ from jurisdiction to jurisdiction, certain legal traditions and doctrines have
                   developed as accepted vehicles for establishing and expanding public rights in the shore.
                   Supplementing these common law provisions, are aspects of codified law which
                   affirmatively proclaim the public's interest in and rights to the resources of the coastal
                   zone. Included under codified law are provisions affirming the public's rights derived from
                   common law, exposition of legislative policy encouraging public access, and authorization
                   of regulatory programs and other devices for insuring that development of private coastal
                   lands is compatible with the protection of abutting public resources of the coastline.

                   A.    Common Law Doctrines

                         1.   The Public Trust Doctrine

                         The concept that the pu@)lic has certain inalienable rights to use navigable waters
                   regardless of the ownership of lands underlying them has antecedents in the English
                   common law, and indeed may even be traceable to precepts of Roman Law.                    One
                   translation of a portion of Justinian's Institutes states that...

                         "No one is forbidden access to the seashore. The public use of the seashore, as of
                         the sea itself, is part of the law of natio9s, consequently everyone is free... to dry
                         his nets and haul them up from the sea..." .

                         Subsequently refined and interpreted over tirne, this concept came to be embodied
                   in the common law of England, a sea-faring nation having signficant stakes in unfettered
                   access to the oceans.     English statutes and court rulings increasingly broadened and
                   defined the concept that the public had rights to navigate on and fish in tidal waters,
                   evolving eventually into what is today known as the public trust doctrine. The doctrine
                   expresses the notion of public  9rights to tidal areas as a public easement or servitude
                   Imposed upon private lands.          Essentially, the doctrine requires a stewardship
                   responsibility on the part of the sovereign (now the state) for the control and management
                   of tidal and submerged lands for the benefit of all citizens.

                         Transferred to the American colonies, and later the states, the public trust doctrine
                   has endured and grown through the decisions of American courts. The landmark case
                   articulating the doctrine aslbn inalienable responsibility of state government is Illinois
                   Central Railroad v. Illinois    decided by the U.S. Supreme Court in 1892. This case
                   stemmed from a legislative grant to the railroad of title to the submerged land along the
                   entire waterfront of Chicago. The court held the grant to be invalid on the basis of tile

                                                                6

                 public trust doctrine stating... "Such abdication is not consistent with the exercise of tl-@at
                 trust which ffquires the government of the State to preserve such waters for the use of
                 the public."     The court did, however, recognize the legitimacy of grants by a state of
                 rights to wharf out, or construct piers over submerged lands, if such grants were intended
                 to better serve the interests of the public in navigation and commerce. With tile Illinois
                 Central decision, the Court affirmed the public trust doctrine and imposed a mandate
                 upon the states to act as proper stewards for the public's interests in tidelands and
                 submerged lands.

                       In Rhode Island, the State Constitution gives formal recognition to the public's
                 rights in tidal and submerged lands (see section II B.1). In addition, several cases have
                 addressed the question of the public trust in tidal areas. In FXovidence Steam Engine
                 Company v. Providence and Stonington Steamboat Company              TT_ , a decision predating
                 Illinois Central, the Rhode Island Supreme Court stated, "the State has governmental
                 control of the shores and tidewaters for the benefit       the people in order to protect the
                 public rights of passage or other rights on the shore"       In an 1895 case, Allen v. Allen,
                 the court said, "The Stat holds the legal fee of all lands below high-water mark... in
                                             f4                                             0
                 trust for all inhabitents.11     Both of these pronouncements, however, were dicta in
                 decisions which upheld the rights of shorefront landowners to wharf out over tidal waters.
                       The 1941 case, Jackvony v. Powell     15 is regarded as a pivotal decision relating to
                 shoreline rights protected under the public trust concept in Rhode Island.            The case
                 involved a challenge by the state Attorney General (Jackvony) of an ordinance adopted by
                 the City Council of Newport which allowed the Newport Beach Commission to erect a
                 fence on Easton's Beach interrupting lateral passage along the shore between the mean-
                 high and mean-low tide lines. In deciding the case, the Supreme Court held that passage
                 along the shore in the intertidal zone was one of the "privileges of the shore" embodied in
                 the State Constitution, and continued in its decision to differentiate between the term
                 "shore", which it found applied to the area of land between the mean high and mean low
                 water marks, and the term "beach", which thelgourt applied to the area between the high
                 water mark and the beginning of the upland.          Most significantly, the Jackvony court
                 went on to decide which common law shore privileges generally assumed to exist under
                 the public trust doctrine had matured into rights under the Rhode Island Constitution.
                 Based upon the case law of other states, particularly New England states, as well as
                 generalized ideas of custom and usage, the court concluded that the public's rights in the
                 shore included fishing from the shore, takingffaweed form the shore, leaving the shore to
                 bathe in the sea, and passage along the shore.     In, 1986, some 45 years subsequent to the
                 Jackvony decision, these four activities were codified as "privileges of the shore" via
                 amendment of the Rhode Island Constitution (see section 11. B. 1).

                       In summary, the public trust doctrine stands as an important protectyj of the
                 public's interest in and rights to the shore. Cases such as Jackvony v. Powell , which
                 define and apply the doctrine in a modern context, maintain its vitality as an instrument
                 of coastal te-cess preservation, particularly with regard to lateral access. It is important
                 to realize, liowever, that the doctrine has limits, the most significant of which stem from
                 the difficulty presented to courts in weighing the public's rights in tidelands against tile
                 rights of riparian landowners to wharf out to navigable waters. In addition, the public
                 trust doctrine, limited in its direct effect to tidal and submerged lands, is not a powerful
                 tool for expanding perpendicular access (across uplands) to tile shoreline.

                       2.    Implied Dedication

                       The essential elements of the doctrine of dedication include an offer by the
                 landowner, either express (orally or in an deed) or implied, to donate a permanent interest

                                                                7

                   in land foriPe Public's use, as well as an acceptance of the offer, express or implied, by
                   the public.    In the context of coastal access, implied dedication of an accessway across
                   private property to the shoreline can result from the acquiescence of the landowner in the
                   public's continuous usage of the    land to reach the shore. The intent of a landowner to
                   dedicate an access route across     his land to the shore can be inferred from the silence of
                   the owner in the face of adverse    public use, or through sorne act orivnduct of the owner
                   which manifests an intention to donate the property to public use".         Implied dedicVon
                   was successfully employed in the Rhode Island case Talbot v. Town of Little Compton            in
                   which the state Supreme Court held that title to a 1,000 foot beach had become vested in
                   the Town in trust of the public, based upon the landowner's tolerance of widespread and
                   continuous public usage of the property. Despite the occasional posting of the property,
                   the court found that factors such as the long-standing practice of Town to haul gravel
                   from the beach, clear debris, and maintain a road across the property, and clear evidence
                   of long and continuous usage of the site by the public for fishiff, hunting and swimming
                   created a compelling presumption of dedication of the property.

                        Implied dedication of coastal access, thus, does have precedent in Rhode Island case
                   law, and, indeed, has recently seen life in the modern day access controversey at Black
                   Point in Narragansett, aspects of which are currently before the courts and regulatory
                   bodies. The utility of the implied dedication tool, however, is limited by the necessity of
                   demonstrating the heavy factual burden it requires on a case-by-case basis.

                        3.     Prescriptive Easement

                        An easement is a property right, less than full ownership, which permits the use of
                   the land of another in some fashion. A right-of-way easement across property (whether
                   shorefront or not) can be established by prescription under Rhode Island law through a
                   showing that usage of the right-of-way for pfisage has been general, continuous,
                   uninterrupted and adverse for at least ten years.         While distinct from the doctrine of
                   implied dedication, successful use of the prescriptive easement theory can obtain a
                   similar practical result: a right to traverse privately-held land in order to reach public
                   trust lands along the shore.

                        While theoretically straightforward enough, establishment of prescriptive easements
                   faces difficult evidentiary standards imposed by courts in order to protect landowners
                   from spurious claims. For example, courts have generally held it unreasonable to expect
                   landowners to fence in their land to prevent trespassing that could result in eventual
                   easement claims. Under this presumption that owners need not discourage "harmless"
                   trespass, courts give landowners the benefit of the doubt in easemen       @f ases that use of
                   the property was permissive, rather than adverse. In    'Daniels v . Blake,   the Rhode Island
                   Supreme Court found that Daniels could not maintain his claim of prescriptive easement
                   over Blake's property because Daniels use of the land (to reach the shore of the Barrington
                   River) was only occasional (seasonal), and (based on the fact that the two parties were
                   initially friendly) because usage was originally permissive.

                        An additional limitation on the use of the prescriptive easement technique is a
                   Rhode Island statute which limits the establi    Went of right-of-way easements to those
                   associated with the "passage of carriages",          obstensibly erecting a barrier to the
                   establishment of footpath right-of-ways by the presciptive easement route.
                        Given the practical barriers established by the courts to limit the establishment of
                   right-of-way easements by prescription, use of the doctrine as a vehicle for expanding
                   coastal access is restricted to highly specialized situations whose factual circumstances
                   can sustain the scrutiny of the courts.

                       4.     Customary Usage

                       Another common law theory, the doctrine of customary usage, was relied upon in a
                 landmark Oregon case to vastly expand coastal access along that state's shoreline.
                 Despite its successful employ in the Oregon case, however, the doctrine holds limited
                 promise for replication of such widespread gains in states such as Rhode Island where
                 shoreline developmental conditions and legal traditions differ substanitially from those of
                 the west coast states.

                       The doctrine of customary usage or custom (for short) has roots in medieval English
                 law, where it evolved as a means for protecting rights of public use and passage over land
                 prior to the recordation of property interests (deeds, etc.) The doctrine holds that a very
                 long and continuous use of a defined geographic             29 rea, may, under the correct
                 circumstances, ripen into a recognizable property right    .    To demonstate such a right of
                 customary usage, the petitioner must meet seven evidentiary burdens. Specifically, it
                 must be shown that the use in question was: (1) ancient-dating back so long that no one
                 remembers otherwise; (2) continuous and uninterrupted; (3) peaceable and free from
                 dispute; (4) resonable and in keeping with the character of the land; (5) certain- as to the
                 location of the land involved; (6) obligatory-occuring without question; and (7) consistent
                 with the general rules of law and order of the jurisdiction.

                       As mentioned above, the most significant application of the doctrine of custom to
                 the question of c@%stal access in recent times occurred in the Oregon case, State ex. rel.
                 Thornton v. Hay,      decided in 1969. Hay, the operator of a beachfront tourist camp,
                 fenced off a-portion of the beach in front of his facility, restricting its use to his patrons.
                 The State of Oregon sought to enjoin Hay from fencing the dry sand portion of the beach
                 (between the mean high tide line and the vegetation line) relying on the customary usage
                 doctrine. The Oregon Court in a sweeping decision, found that the dry sand portion of all
                 open-ocean beaches in Oregon was indeed subject to a right of customary public usage,
                 based upon public use and enjoyment of these areas since the advent of the state's history.

                     . Despite the major ramifications which the ruling in Thornton had for coastal access
                 in Oregon, the doctrine of customary usage has not been taken up in meaningful way by
                 other jurisdictions, where the absence of developed case law relying upon the doctrine,
                 and the heavy, if not i nsur moun table, burden of proving uninterrupted public beach usage
                 since recorded history signficantly restrict its viability.

                 B.    Constitutional, Statutory and Regulatory Provisions Related to Coastal Access in
                       Rhode Island

                       In addition to doctrines of the common law, aspects of the codified law, including
                 constitutional provisions, statutory enactments and administrative programs and
                 procedures, also relate to the protection and expansion of public coastal access.
                 Pertinent provisions of Rhode Island's codified law relating to coastal access are briefly
                 summarized in this section.

                       1.    The Rhode Island Constitution

                       Early Rhode Islanders, drawing their livelihood from the sea and the bay, were quick
                 to formalize their rights to the shoreline in a legal document.         The original colonial
                 Charter of 1663 included an express grant from the sovereign of citizens' rights to fish
                 along the coast. This grant was amplified in the Constitution of 1843 through inclusion of
                 Section 17 of Article 1, which formalizes the public trust doctrine rights of Rhode
                 Islanders:

                       "The public shall continue to enjoy and freely exercise all the rights of fishery, and
                       the privileges of the shore, to which they have been heretofore entitled under the
                       charter and usages of this State."

                       As described previously, the term "privileges of the shore", while not originally
                 defined by the framers of the state constitution, was given substance and i@tprpretation
                 through the ruling of the state Supreme Court in the case Jackvony v. Powell.

                       During the Constitutional Convention of 1986, the question of coastal access
                 emerged as a major concern of delegates and the public. Delegates considered a number
                 of ways in which the constitutional language could be modified to enhance public rights to
                 the shore, including definition of the term "shore" to include the dry sand portion of the
                 beach up to the vegetation line. While consensus could not be reached on including the
                 dry sand within the public domain by defintion, Convention delegates did accept a more
                 modest proposal that provided for incorporation of the Jackvony definition of "privileges
                 of the shore" within Article 1, Section 17. This language was placed before the state's
                 voters as one of 14 proposed Constitutional amendments in November, 1986, and carried
                 by an overwhelming majority.        A second amendment, passed by the Convention and
                 approved by the voters, is also intended to improve coastal access. This provision, states
                 explicitly that state and local regulation and control of land use 11... in furtherance of the
                 protection of the rights of the people to enjoy and exercise the rights of fishery and t
                 privileges of the shore... shall not be deemed to be a public use of private property".
                 This provision in essence, directs Rhode Island court-s to liberally construe regulation of
                 private property which advances coastal access objectives as being within the legitimate
                 purposes of government under the police power, and as not constituting a "taking" of
                 property without compensation.

                       2.   Coastal Resources Management Act

                       Efforts to enhance public coastal access in Rhode Island occur within the larger
                 framework of coastal resources allocation and management established by the General
                 Assembly under Chapter 46-23 of the General Laws. Adopted in 1971, Chapter 46-23
                 establishes the Rhode Island Coastal           urces Management Council (CRMC), a 17
                 member body appointed by the Governor, Lieutenant Governor and the Speaker of the
                 House, to represent state, local and private interests in the resources of the state's
                 coastal zone. The CRMC's broad powers to manage the coastal resources of the state
                 include a mandate to formulate plans and policies and to adopt regulations necessary to
                 compliment its various management programs. As described in section I. C., the CRMC
                 has also been delegated responsibility for the investigation and designation of coastal
                 public rights-of-way.

                                                              10

                       in exercising its broad mandate, the Council has developed the Rhode Island Coastal
                 Resources Management Program (CRMP), a resource-based plan establishing policies and
                 management standards for activities occuring in coastal waters and on specified shoreline
                 features. The CRMP is supplemented by "Special Area Management" (SAM) plans adopted
                 by the Council for intensified management of specified geographic areas, such as the salt
                 pond region along the state's south shoreline.     The CRAIP and associated SAM plans
                 constitute the basis for the Council's regulatory authority over development activities
                 proposed within 200 feet of coastal waters or shoreline features.

                       While several policies of the CRMP relate to the preservation of public coastal
                 access, the Council has not elected to aggressively promote the expansion of access
                 through its regulatory program.       Unlike states such as California, Washington and
                 Connecticut, Rhode Island's coastal regulatory program has not, as a general rule,
                 conditioned the grant of a permit to develop or otherwise alter coastal resources upon a
                 stipulation that public access be provided. Moreover, despite the board charge to plan for
                 coastal resources explicit in its mandate, the CRMC has not developed a comprehensive
                 approach to the question of public access to coastal resources, but has instead relied
                 heavily upon the work of its Subcommittee on public rights-of-way. Despite calls from
                 the Stath Planning Council that the CRMC "explore other avenues of expanding coastal
                 access,"   the CRMC has relied upon the on-going work of the Subcommittee, while doing
                 little which has actually expanded (i.e., provided new) access. Indeed, knowledgeable
                 marine affairs experts have questioned whether the CRMC efforts on coastal access have
                 produced any net gain ... "Because the effort is underfunded and has not been a top
                 priority .... it is difficult to see what progreg has been made in the decade CRMC (has had
                 responsibility for rights-of-way research)".

                       In short, Rhode Island has not developed a comprehensive approach to the access
                 question, (involving planning and research, regulation and dedication, acquisition) but
                 instead has relied upon the (painstaking) legal research of the CRMC's Rights-of-Way-
                 Subcommittee to verify the legitimacy of existing rights-of-way.

                       3.   The State Guide Plan

                       Chapter 42-11 of the Rhode Island General Laws establishes a statewide planning
                 program within the Department of Administration and charges it with responsibility for
                 strategic planning and preparing the State Guide Plan - a series of functional plans which
                 direct the orderly grow   and development of the state. The 1986 Recreation Element of
                 the State Guide Plan   4&  is most relevant to the issue of coastal access.       This plan
                 recommends a comprehensive approach to the question of expanding shoreline access in
                 Rhode Island.

                       Finding that... "There can be no higher public recreational priority as we approach a
                 new century", the plan urges that "every approrpriate opportuni%       to gain, enhance, or
                 expand public access to Rhode Island's shore be capitalized upon".        More importantly,
                 however, the plan establishes a policy framework for coordinated coastal access planning,
                 implementation and management involving state and local governments. It also provides
                 fourteen specific recommendations for actions needed to expand public access in a
                 coordinated and responsible fashion. (These recommendations form the basis of Part III of
                 this paper.)

                       4.    Local Land Manaoement Tools
                                              0

                       While the discussion of legislative authority related to coastal access has thus far
                 focused upon the powers of state government, it is important to reeginize that the state,
                 through its delegation of authority to regulate land development,        has provided local
                 governments with significant powers to influence the development of their coastlines.
                 Despite the powers accorded localities to plan for, zone and control subdivision of their
                 land, however; it is not unreasonable to say that Rhode Island communities have not used
                 that authority with great vision or foresight with regard to coastal access nisds. Most
                 local comprehensive plans do not specifically address coastal access needs.           Indeed,
                 most coastal communities have not even identified a need for coastal access points in
                 their recreation plans, despite the fact that water access is a prerequisite to increasingly
                 popular forms of marine recreation. Unfortunately, when planning and zoning actions do
                 seek to protect coastal access, they are often, as the Black Point controversy
                 demonstrates, too little and too late.

                 C.    The Nollan Decision

                       Any discussion of the application of codified and common law to the problems
                 inherent in coastal public access would be incomplete without reference to the
                 Constitutional limitations upon governmental actions undertaken in support of any
                 objective, however noble, including coastal access. These restrictions flow from case law
                 interpreting the fifth and fourteenth amendments to the U.S. Constitution, to wit, the
                 prohibitions against governmental "taking" of private property without compensation, or
                 absent due process and equal protection under law. It is on this aspect the law that the
                 nation's highest court has recently spoken in several noteworthy cases.         One of t
                 "takings" cases decided during the 1987 term, Nollan v. California Coastal Commission,
                 dealt directly with the legitimacy of governmental attempts to secure and expand public
                 access to coastal resources. For this reason, it,is imperative that governmental officials,
                 administrators and planners involved in coastal access provision be familiar with the
                 facts, points of law, and views of the court expressed in Nollan.

                       1.   Overview of the Facts and Travel of the Case

                       James and Marilyn Nollan had an option to purchase a small (504 sq. ft.) bungalow
                 situated on an oceanfront lot in Ventura, California. The Nollan's option on the lot
                 conditioned its purchase upon their promise to demolish the small house and replace it
                 with a new structure. The lot is located on Faria Beach, on which also fronts two public
                 parks located 1,200-1,800 feet north and south of the Nollan's lot.      An eight foot. tall
                 seawall separates the beach portion of the property from the rest of the lot.

                       In February, 1982 the Nollan's applied to the California Coastal Commission for
                 permission to replace the bungalow with a new three-bedroom, 2,464 sq. ft. house with
                 attached two-car garage. The Commission granted administrative approval for the new
                 structure subject to a condition that the Nollan's grant an easement allowing the public to
                 pass along the portion of the lot located between the seawall and the mean high tide. The
                 pass and repass easement sought by the Commission was in furtherance of its objective to
                 guarantee lateral access along Faria Beach. Similar stipulations had been successfully
                 attached by the Commission to 43 other permits along the beach prior to the Nollans.

                                                             12

                      The Nollans appealed imposition of the easement condition to the California
                Superior Court which ruled in favor of the Nollans and remanded the case to the
                Commission for a full hearing on whether a single family home would have a direct
                adverse impact upon public access to the beach.            Subsequent to the hearing, the
                Commission re-affirmed its imposition of the easement condition based upon its finding
                that the new, larger house contributed to the development of a wall of residential
                stuctures which would block the public's visual access to the beach and psychologically
                inhibit the public's exercise of its access rights to Faria Beach.

                      The Nollan's returned to court, further alleging that the easement condition violated
                the "takings" clause of the Fifth and Fourteenth Amendments. The Court again ruled in
                their favor, holding that the record of the Commission's hearing did not provide a
                sufficient factual basis to sustain the imposition of the permit condition. The Commission
                next appealed the decision of the trial court to the California Court of Appeals. 1,17hile
                the appeal was pending, the Nollans exercised their purchase option on the lot, tore down
                the bungalow and built their desired residence, all without notice to the Commission.

                      The Court of Appeals reversed the lower court, finding that replacement of the
                small cottage with a significantly larger structure would create a burden on coastal
                access which California statutes required the Commission to alleivate through imposition
                of the easement condition. The court also dismissed the Nollan's "taking" challenge,
                because the easement did not deprive them of all reasonable use of their property. The
                Nollans appealled to the U.S. Supreme Court raising only the "taking" claim.

                      2.    The Decision

                      In a 5 to 4 decision, the Supreme Court ruled in June, 1987 in favor of the Nollans.
                The Court found that the access requirement constituted a "permanent physical
                occupation" of their property which, while (potentially) permissible as a governmental
                police power regulation, was invalid in this case because the Commission failed to
                demonstrate a direct connection, or nexus between the condition imposed under the aegis
                of regulation and the substantial advancement of leg-itimate state interests.             While
                agreeing that the Commission had authority to deny outright the Nollan's application, and
                by logical extension, to impose a lesser restriction as a condition to its approval, the court
                held that the "lack of nexus between the condition and the original purpose of the building
                restriction converts that purpose (into) ... The obtaining of an easement to serve some
                valid governmygtal purpose, but without payment of compensation... an 'out-and-out plan
                of extortion"'.

                      At base, the majority of the Court was unconvinced that the Commission's
                imposition of a lateral beach     access requirement bore a rational relationship to the
                burdens created by the Nollan's action which it sought to remedy.

                      "It is quite impossible to understand how a requirement that people already on tile
                      public beaches be able to walk across the Nollan's property reduces any obstacles to
                      viewing the beach created by the new house. It is also impossible to understand how
                      it lowers any 'psychological barrier' to using the public beaches, or how it helps to
                      remedy any  3gdditional congestion on them caused by construction of the Nollan's
                      new house".

                          3.   Implication of the Decision for \"oas---,-,l Access Provisioll

                          While the seemingly broad holding in Nollan has implications which may significantly
                    impinae upon all aspects of governmental regulation, its direct and immediate effect is
                    upon land use reaulation, and specifially upon the use of mandatory        dedication as a
                    vehicle for securing coastal public access rights.        Viewed from a most positive
                    prospective, Nollan can be construed as permitting such coastal access exactions in
                    instances where regulatory bodies can demonstrate a direct link between the burden
                    imposed by new development upon the public's interest in accessing the coastline, on the
                    one hand, and the access donation sought in remedy on the other.           For large scale
                    development projects such as subdivisions and commerical developments, which pre-empt
                    (relatively) large stretches of shoreline with new development (as opposed to the
                    replacement of an existing structure as was the case in Nollan), this may be (as Justice
                    Brennan's dissent indicates) an easier burden to demonstrate. In     ed, by citing the body
                    of state court decisions which deals with subdivision exactions,      the decision may be
                    backhandedly endorsing the exaction of access in cases where the donation cag,     be shown
                    to be in response to an effect "specifically and uniquely attributable"              to the
                    development.    If this is indeed what the Court is suggesting, it will impose a higher
                    standard than "that relied upon by the California Coastal Commission.          However, a
                    "tougher" agency burden on access exactions need not be regarded as entirely onerous.
                    Indeed, local governmental agencies which control subdivisions have accommodated
                    themselves to variations of the "specifically and uniquely attributable" test, apd many
                    communities throughout the country (including several in Rhode Island) have crafted
                    successful subdivision exaction programs.

                         Another beneficial outcome of Nollan may be move detailed and thorough agency
                    planning for coastal access which will inevitably be required if data, impact assessments
                    and access standards sufficient to sustain the "precise fit" test are to be developed. By
                    limiting the use of the mandatory dedication option for expanding access, Nollan may
                    also stimulate support for other means of providing access such as public acquisition
                    programs, and multiple use of existing public holdings.

                         To find other "positive" elements in the decision access planners and governmental
                    regulators in general have to look to the dissents. Justice Brennan's lenghty dissent
                    recounts the evolution of the courts standards for "takings" cases and argues rationally
                    and eloquently that the test devised by the majority in deciding Nollen represents a
                    dangerous new direction that, over the long run, even the court itself will regret going in.
                    Finally, Justice Blackman's clarification that Nollan does not implicate in ally way the
                    public trust doctrine is helpful to the access cause.

                         Depsite these attempts to put the "best face possible" upon the decision, Nollan is a
                    signficant setback for the cause of expanding coastal public access.          It limits the
                    discretion of administrative agenices to require access exactions as a matter of routine
                    policy in coastal developments, and places a substantial burden upon agenices to precisely
                    tailor the access requirement to the character and magnitude of each development's
                    impact upon access. It will require successful exaction programs to be soundly grounded
                    upon detailed planning and impact assessment, which is both time consuming and
                    expensive.

                    The most troublesome impacts of Nollan, however, may well lie, much like the impacts of
                    the Nollan's new view-blocking home, in the psychological realm. Just as Nollan's new
                    home may frustrate less than intrepid shoreline-seekers from attaining their goal, the
                    strong admonitions of the court may intimidate and dissuade public agencies from
                    vigorous insistence upon protection of the public interest in the shoreline. This chilling

                                                                14

                   effect may be most severe upon small state regulatory programs such as Rhode Island's,
                   and even more drastically, upon the (still tentative) attempts of local governments to
                   grapple   with   coastal access preservation as part of their land                 management
                   responsibilities.

                        In a similar vien, Nollan will embolden developers and real estate interests in their
                   opposition to access requirements.       The powerful interests which are reshaping the
                   coastline of Rhode Island and the nation have "deep pockets" and will unquestionably use
                   the threat of Nollan suits to dissuade public agencies, which often have little or no
                   recourse to legal resources (or to budget resources sufficient to support defense of such
                   suits), from persisting in seeking access donations as development permit conditions. This
                   intimidating effect on agenciee boldness to insist upon the public interests they are
                   mandated to uphold, may be the most adverse outcome of the Nollan decision over the
                   long term.

                   Unquestionably, the growing pressures of    private development and usage of the coastline
                   necessitates public sector intervention     to maintain a balance between the competing
                   public and private interests in the shore.

                         While tools such as common law devices and acquisition programs, theoretically, can
                   address access needs, tile time and high cost involved in implementing them and the high
                   value of coastal real estate limits their effectiveness as solutions. Realistically, it should
                   not be unreasonable to expect new coastal development which 1tr2ly interferes with or
                   infringes upon the public's ability to utilize the resources of the shoreline to participate in
                   solutions which preserve and expand access. That the nation's highest court has erected a
                   new barrier to agency flexibility and creativity in the search for an equitable sharing of
                   coastal access responsibilities and burdens, is disheartening, but should not be devastating.
                   Nollan does set new limits, but it does not entirely erradicate the mandatory dedication
                   option. With the proper documentation of project -impacts, and a careful matching of
                   burdens and remedies, access exaction should remain viable, especially in larger projects.
                   All whose responsibilities include stewardship of public trust rights to the shoreline need
                   to interpret Nollan as applying to the unique circumstances of the case, and to maintain
                   the courage -Fo-cham pion coastal access dedication in new developments where it is
                   appropriate.

                                                                 15

                  III. DESIGNING A POST-NOLLAN COASTAL ACCESS PROGRAM FOR RHODE ISLAND

                         As described in Part I, Rhode Island's efforts to preserve arid expand coastal access
                  opportunities have been pursued along several distinct, and largely unconnected paths.
                  oince 1979, the CRAIC's rights-of-way research and designation process has progressively
                  removed legal ambiguities which have surrounded many traditionally-used access routes.
                  DEM's coastal land acquisitions over the last decade have significantly increased the
                  quantity of public land fronting on the shoreline, particularly along Narragansett Bay and
                  on Block Island. A handful of progressive coastal communities have developed plans for
                  expanding public usage of their shorefronts in concert with revitalization of economically
                  underutilized or derelict areas.     Despite these measures, however, public concern over
                  dwindling coastal access remains high and the prevailing sense is that the shoreline is
                  relatively inaccessible, and is becoming more rather than less so.

                         Clearly, coastal access considerations must be accorded a higher priority in Rhode
                  Island's future coastal development, and also a higher profile among the many
                  responsibilities assigned to agencies involved in managing the coastline. r4ost basically, a
                  comprehensive approach must be developed which coordinates and utilizies to best
                  advantage the resources, authorities and energies of the several state and numerous local
                  agenices having interests and/or jurisdictions affecting coastal access and to develop a
                  concensus on access needs and priorities for addressing them.

                         The 1986 Recreation Element of the State Guide Plan recommended that coastal
                  access 4 the state's highest recreational priority in the closing years of the twentieth
                  century    . The plan sketched, in a series of policies and recommendations, the outlines of
                  a comprehensive approach to the access question involving planning, designation, access
                  expansion and acquisition, information and education, and maintenance and enforcement.
                  The remainder of this paper builds upon the framework provided in the Recreation Guide
                  Plan by updating and further elaborating its recommendations for a comprehensive coastal
                  access program.

                  A.     Program Premilse

                         Development of a coastal access program suited to the needs of the Ocean State as
                  it approaches  the 21st century must begin from the premise that broad-based, coordinated
                  and sustained governmental action is requisite to the practical exercise and meaningful
                  enjoyment of   the Constitutionally guaranteed "privileges of the shore" by present and
                  future Rhode   Islanders. The protection and expansion of coastal access must be seen as
                  an important public "need" that state and local governments have an affirmative
                  responsibility to address. It is also necessary that the response developed recognize from
                  the outset the complexity of the questions and problems involved in coastal access. The
                  interplay of   common law property rights, legislative authorities, differing agency
                  missions, and several jurisdictions of government and the private sector will dictate a
                  comprehensive approach which synthesizes the efforts of all of entites involved toward
                  progress on a common objective.

                         The premise of an activist government on the access question may appear to fly in
                  the face of the Nollan decision. No doubt many will counsel that the defeat of the
                  California Coastal Commission in the Nollan case implies that courts will be more willing
                  to affirm -the pre-eminance of private property rights over the public interest in the
                  coastal zone and will exhibit less tolerance of governmental attempts to actively assert
                  the public's rights of access (or other public interest) to coastal resources. Those who
                  promote this view, however, must be challenged to demonstrate a how lesser
                  governmental role will insure that Rhode Islander's can continue to enjoy their coastal

                                                                16

                  franchise in the future.     As urged in Part 11, the response to Nollan shou'10J, not be
                  retrenchment, but recalculation and rededication. Moreover, in seeking to apply Nollan's
                  admonitions to Rhode Island, regard must be given to the advanced stage of development
                  of California's coastal access program relative to the efforts of Rhode Island in this
                  realm. While Nollan may have indeed set new limits on what an agrgressive program such
                  as California's can henceforth require, it has by no means overturned the vast progress
                  which California (and other states with well-developed programs) have acheived, nor
                  should it dissuade Rhode Island from developing a comprehensive program of its own.

                  B.    Program Elements

                        A successful access strategy requires government to assume many roles:              land
                  steward, planner, developer, educator, adovcate, arbitrator, and enforcer. At a minimum,
                  the program must encompass elements of access planning, priority setting and policy
                  development; access designation and acquisition; access development and mainl          'enance;
                  access security and landowner protection; and public education and information. Each of
                  these components is discussed below:

                        1.    Access Planning and Policy Development

                        To achieve maximum benefit, it is essential that access protection and expansion
                  efforts be guided by a planning process which assesses both resources and needs and
                  establishes methods and priorities for providing needed access areas and facilities at
                  various locations. Planning for access should integrate the following factors:

                        an assessment of the demand for various types of access along different sections (or
                        types) of shoreline. I-low are people using the coastline now, and how is this usage to
                        change in the future? If shore segments are "underutilized", is this because there is
                        no intrinsic usage protential or capability or is low usage attributable to lack of
                        access?

                        the establishment of standards for different types of access areas and facilities
                        required for different shoreline characteristics and resources.       Standards should
                        differentiate access needs based upon expected usage parameters (intensity,
                        duration, seasonality, activity) and site capacities and capabilities.

                        identification of important shoreline resources such as shellfish beds, recreation
                        areas, scenic view sites, prime fishing spots, and educational and research areas to
                        which access must be maintained and improved;

                        an inventory of the locations, characteristics, and capabilities of current access
                        sites and areas, both formal and informal; and

                        identification of opportunities for provision of new, expanded or improved access.

                        Most essential will be the basing of access needs not only upon current shoreline
                  characteristics but also upon a vision of what the future shoreline will be like and what
                  the public's need to access various shore features will be in the future based upon the best
                  forcasts o" population, water quality and coastal development trends. The plan which
                  results should be an expression of how well the public's need for access to the shoreline at
                  different points is being met, and a priori ty-ordered program for addressing identified
                  deficiencies and incorporating new access into shoreline development and redevelopment
                  in order to meet future needs.

                                                               17

                          The 1986 Recreation Guide Plan recommended dev-z@lopment of a State Coastal
                    Access Plan. While such a plan should be prepared as an element of the State Guide Plan,
                    staff and funding constraints have prevented our undertaking this task to date. To do an
                    adequate job on such a plan, we estimate that two-staff years and up to $150,000 would be
                    needed.

                          In addition to the preparation of an overall access plan for the coastline, the
                    planning element should have two other objectives: (1) the establishment of criteria by
                    which to identify and assess the impact of new coastal development on coastal access
                    needs, and (2) the' development of design and construction standards for tile various types
                    of access sites and facilities to be provided (or improved) in accordance with the overall
                    plan. The first of these objectives will be essential to support governmental efforts to
                    obtain access donations in connection with new development.

                          The preparation and adoption of a coastal access plan would (in addition to the
                    obvious guidance it would provide to subsequent elements of the access program) do two
                    important things: 1) it would provide a higher profile for access in coastal management
                    generally, signalling communities and the private sector that access is to be an important
                    factor in all new coastal development; and 2) by specifically identifying the public's
                    access interests, it would provide information to coastal developers that would both allow
                    and obligate them to avoid or mitigate impacts upon access.

                          2.   Access Protection and Expansion Strategies

                         The comprehensive coastal access plan should become the guide for coastal access
                    protection and expansion initiatives of state and local governments.         Maximizing the
                    potential of existing accesses and providing new access where needed should become an
                    integral component of the coastal development and redevelopment process, and should be
                    given priority within the state's coastal management, outdoor recreation, and
                    development incentive/assistance programs. A variety of techniques should be pursued:

                         a.    Right of Way Research and Desjgnation@

                         Investigation of the legal standing of traditionally utilized and presurntively valid
                    rights-of-way to the shoreline should continue, but will likely produce diminishing returns.
                    In its eight years of research of ROW's in twenty of the twenty-two coastal communities,
                    the CRMC's ROW research effort has focused largely upon previously-identified and tile
                    best documented right-of-way sites.        In its research and public lieqrd*ng processes
                    information was obtained on a large number (up to 500) of additional sites     . While these
                    leads are promising, the reality is that these "new" sites will require a great deal of
                    additional research in order to clarify their status and sustain successful designations.
                    Many of these potential new sites involve private lands and will require the construction
                    of cases built upon the doctrines of prescriptive easement and /or implied dedication.
                    Designation of these sites by tile CRMC is likely to induce a higher incidence of appeals
                    to the courts (than has thus far been experienced) where the evidentiary burdens to be
                    met, as described in Part I of this paper, can be formidable. Thus, the continuation of the
                    ROW program will predictably require increasingly greater investments of time and
                    resources to methodically research and defend designations; will likely see fewer
                    designations made (compared to the number of sites investigated); and may encounter
                    increased risks of having its designations overturned by the courts.

                         To contain costs and best focus limited resources, a 11triage", or setting of priorities
                    for research of the "new" sites is in order. Initial screening by CRMC staff and perhaps a
                    para-legal consultant could prioritize sites on the basis of the following factors:

                                                                 18

                            immedicacy of threat of site development or other preemption;
                            availability of coastal access in vicinity of site; and
                            estimation of sufficiency of documentation available on site in question to
                            sustain evenutal designation.

                      Under its current legislative charge, the ROW Subcommittee faces an increasingly
                difficult task with a steadily shrinking and tenuous federal funding source. The levcl of
                resources available is clearly inadequate to accomplish the task within a reasonable time
                period. The state must soon decide if the ROW program, as currently structured, is a
                worthwhile investment. If it is, a completion date should be established for tile project
                and sufficient resources provided to complete the job within the selected timeframe.

                      b.    Acquisition

                      Direct acquisition of coastal land (or of access rights) for public usage must
                continue to be a major element in Rhode Island's coastal access expansion program.
                Acquisition is appropriate for sites in which the public interest requires more than the
                simple right to traverese the land (e.g. protection of an important coastal resource,
                provision of intensive recreation opportunities, etc.).      Acquisition has, of necessity,
                become more selective and strategic in the past five years as coastal land costs have
                soared, and choice coastal sites diminished in number. Large coastal acqusitions have
                grown beyond the capabilities of any single entity and require the collaboration and
                support of several sponsors, using a number of the funding techniques. For example,
                Goosewing Beach, a highly important wildlife, open space and recreation resource
                rumoreV, to be soon up for sale in Little Compton, has an estimated cost of up to $12
                million , a sum that exceeds the $10 million which the 1987 Open Space Bond Issue made
                available for the Department of Environmental Management's entire (statewide)
                acquisition program.

                      The $45 million available for local open space and recreation projects under tile
                1987 Open Space Bond holds great potential for significantly expanding the public's access
                to the coastline through local purchase of small, but important coastal open space and
                recreation sites, and by the construction of new recreation facilities such as boat ramps
                at existincr coastal sites. The Bond funds provide cost-sharing in projects of up to 75% for
                land purchases and 50% for recreation facility developmfft.         Moveover, tile General
                Assembly specifically included "coastal floodprone areas         as eligible targets of the
                acquisition program, and such sites will receive additional weighting in the evaluation and
                ranking of projects. All but one of the state's coastal communities have voted local bond
                money to match the state grant program. Hopefully this new availability of state and
                local funding will produce many new public recreation and open space sites providing
                access along the coast. A goal of obtaining at least one new coastal access point per
                coastal community should not be unrealistic.

                      State acquisition of new coastal accesscs for fishing and boating is possible under
                the Sports Fish Restoration Program of the Department of tile Interior. In distinction to
                most federal programs under the Reagan era, this grant source has significantly increased
                in the last five years as a result of new excise taxes and user fees imposed on motor boat
                fuels, fishing tackle, and imported yachts and pleasure craft.       Nearly $1.5 million in
                funding is currently available to Rhode Island this year under this Program.           DEM's
                Division of' Fish and Wildlife is utilizing funding provided by the Fish Restoration Program
                to conduct a study assessing saltwater fishing access in the state and identifing new
                potential access sites as well as opportunities for improvements (new boat ramps, etc.) at
                existing accesses. This funding source will provide the bulk of the funds necessary to
                maintain and operate the converted Jamestown Bridge fishing pier.

                                                             19

                        C.    Provision of Access in New Development

                        Apart from outright acquisition, the greatest opportunity for protecting old and
                  providing new public access to Rhode Island's shoreline lies in capturing the access
                  potential which exists when shoreline land usage changes.         The process of planning,
                  designing and approving a new shoreline development represents a narrow window of
                  opportunity to effect changes to the coastline that will endure for a generation or longer.
                  These changes can be either beneficial or detrimental to the public's interest in accessing
                  and using the shorefront.      Regulatory review procedures under the state's Coastal
                  Resources Management Program and local zoning and subdivision regulations represent
                  the best available channels for insuring that the public's interest in coastal access (as well
                  as other matters) is respected and advanced through the development process. At a
                  minimum, the regulatory program must make the public's interest in maintained and
                  improved coastal access explicit, and must provide for consideration of a new project's
                  effects upon access. This is where a form ally-adopted, detailed coastal access plan which
                  outlines public objectives for different sections of the shoreline is instrumental.

                        Capitalizing upon such opportunities can rely upon formal and informal tecniques,
                  but requires considerable skill and savvy. Formal requirements that developers of new
                  coastal projects donate access rights or land or a fee for accessways have been
                  successfully employed by a number of regulatory bodies including the San Francisco Bay
                  Conservation and Development Commission, the State of Connecticut and, of course (up
                  until Nollan) the California Coastal Commission. Absent a formal requirement that
                  access be provided, informal negotiations and moral persuasion can still be relied upon
                  during the development review process to obtain access in new projects. Give and take on
                  project design details is common during the review of projects, particularly those whicil
                  do not meet the letter of existing regulartory standards and require a grant of relief of
                  some form. In obtaining access through such negotiations on project design, care must be
                  observed that the grant of a zoning exception or other relief not be made a "quid pro quo"
                  for access or other concessions made by the d?lfloper. Courts have overturned such
                  neatly packaged deals as invalid "contract zoning"

                        While Rhode Island has not developed a formal procedure for obtaining new coastal
                  access through review of new developments, several recent developments illustrate that it
                  is acheiveable.     The most dramatic of the        *se is Transcontinental Development
                  Corporation's plans for redevelopment of the petroleum tank farm land at Kettle Point in
                  East Providence     into a 600 unit residential community.              Regardless whether
                  Transcontinential was motivated out of a sense of corporate responsibility or out of its
                  own self interest to smooth the way for regulatory approval of its proposal, the result will
                  be provision of a public promenade around the shoreline perimeter of the site connecting
                  with the East Bay Bikeway which will be constructed through the site.            Despite its
                  reluctance to rely upon such techniques in tile past, and not without regard to the setback
                  of Nollan, Rhode Island should nevertheless make greater use of its state and local
                  regulatory processes to acquire new coastal access points as part of new coastal
                  developments.

                        Strategies for improving Rhode Island's capability to capture coastal access
                  opportunties during the review of new developments include:

                        -    Incorporation of a water-dependancy requirement for new development into
                             the Coastal Resources Management Program. This strategy, relied upon by
                             several other coastal management programs including Connecticut's, combines
                             a requirement that new shoreline development be water-dependant with a
                             definition of coastal access as a water-dependent activity.               Program

                                                               20

                             regulations allow non-water dependant uses, such as many forms Of
                             commerical, industrial, and multi-family residential to I)e sited at the
                             coastline only if they incorporate public access as an ancillary use meeting the
                             water-dependancy requirement.       Connecticut feels that this approach also
                             protects it from Nollan-type challenges .... "In Connecticut, therefore, a
                             municipality can require public access a component part of a development
                             proposal necessary for the project to meet the threshold requirements of
                             water-dependancy under the Act. In the California case, on the other hand,
                             the Court was striking down a public access easement as an after-the-fact
                             condition imposed on a development pilf    osal that would have other wise been
                             permitted. The difference is critical."

                             Subdivision review and approval. Section 45-23-3 of Rhode Island's General
                             Laws authorizes local planning boards to establish rules for approving new
                             subdivisions which (among other purposes) allow for 11 ... secure(ing) appropriate
                             allotments of land area in new developments for all the requirements of
                             community life... and to conserve natural beauty and other natural resources".
                             A number of Rhode Island communities rely upon this provision to secure
                             donations of land for community recreation needs. Moreover, local planning
                             boards have considerable discretion to influence the layout of roads,
                             pedestrain paths and drainageways prior to approving new plats. If coastal
                             access needs were identified in a local comprehensive plan, there is no reason
                             why the Planning Board should not interpret these as "requirements of
                             community life" and require provision of accessways in new coastal
                             subdivisions, meeting at least the needs of the development's residents. While
                             modern design practices discourage extending streets to dead-ends at the
                             water (a common practice of the now-di sr epu table gridiron development
                             pattern which provided perhaps 75% of the designated shoreline right-of-ways
                             in the state); there is no reason why paths extending from the closest road
                             parallel to the water should not be required as they are by California's
                             subdivision law, or why drainage easements extending to the water's edge
                             should not also be required to also allow publIc foot passage. Courts have
                             prohibited arbitrary dedication requirements, but such exactions designed to
                             offset the specific impacts or burdens of a new development (as ?gposed to
                             meeting community-wide needs) are widely accepted as permissible.

                             Mitigation for Private Use of Public Trust Doctrine lands:

                             The filling, wharfing out, or construction of piers over submerged public lands
                             is properly discouraged by the Coastal Resources Managment Program, but can
                             be permitted in cases where overriding public interests, such as promotion of
                             necessary public works or economic development, are demonstrated. Such
                             permission should not be given lightly, and, when granted, should include a
                             requirement for compensation or mitigation for the loss of public resources
                             (including the pre-emption of lateral or perpendicular coastal access). Section
                             160 of the CRMP establishes a procedure by which fees may be assessed in
                             connection with filling of tidal waters. Fees may be assessed on a case-by-
                             case basis based upon a professional appraisal of four factors: (1) the degree
                             of preemption, (2) the degree of irreverseability; (3)         the  value of the
                             opportunities lost; and (4) the economic return of the project to   the applicant.
                             This provision should be modified to require, as a first priority the
                             replacement or mitigation of the access (and other) opportunities lost as a
                             result of the filling or wharfing out.    Only if it were demonstrated to be
                             impractical to successfully mitigate the loss of access should compensation by

                                                               21

                              fee be allowed (A fee should still be levied equal to the fair market value of
                              the area filled or preempted, plus the value of public rights which cannot be
                              replaced or successfully mitigated, pro-rated over the useful life of the
                              facility with payments indexed to inflation.)

                        While proposals to fill or wharf out over public trust resources may be infrequent,
                  they predicably will occur from time to time, and may, after regulatory analysis and
                  public scrutiny, occasionally be found to be justified. When they are, there should be a
                  mitigation policy in place to guide the replacement or improvement of public access, and
                  any irreplacable values should compensated for.

                        d.    Access Potential of (N on-R e creation) Public Coastal Lands:

                        While the Department of Environmental Management controls the vast majority of
                  public land which fronts on Rhode Island's shoreline, other departments and agenices of
                  state agenices such as the Blackstone Valley District Commission, which controls some 50
                  + acres on the Seekonk River, the Board of Governors for Higher Education which owns
                  shoreland at Casey Point, and the National Guard which has land at Fort Varnum. Other
                  TInon-traditional" access points potentially exist at highway and rail bridge crossings of the
                  tidal waters controlled by the Department of Transportation. While unsanctioned public
                  usage of some of these sites has traditionally occurred, there is nothing to assure its
                  continuation in the future. Since the agenices involved have no mandate or particular
                  interest in providing public access to the shore on their lands where it is feasible, many
                  access opportunities that are currently used informally could be lost in the future if
                  agencies dispose of the land, develop new facilities on it which block access, or purposely
                  fence in or exclude the public (to provide security for agency operations or perhaps in
                  repsonse to neighbors complaints over public use).

                       Realizing the access potential of such sites on a permanent basis will require both
                  planning and advocacy. Publicly-owned sites which are not part of the state's recreation
                  system but are nonetheless currently being used by the public on an informal basis should
                  be identified by the planning element of the coastal access program. Once identified, the
                  agency with jurisdiction over the site should be appraised of the importance of its land for
                  providing access and requested to cooperate in retaining and perhaps formalizing the
                  allowance of access. In a similar fashion, agencies responsible for publicly-owned sites
                  where access is currently restricted, or which offer  potential for additional access should
                  be called upon to provide it. Such requests must be made judiciously and with forthought,
                  and research into predictable agency concerns and/or objections to allowing or
                  encouraging access across their property. In many,    indeed perhaps most, instances initial
                  agency reaction will be resistance to what they perceive to be a demand upon its
                  resources which is not in furtherance of its primary mission. Such protestations must be
                  met, not only with the moral arguement that all public agenices have a general public
                  service obligation (in addition to a specialized mandate); but also with constructive
                  solutions or answers to real or perceived problems with allowing access. This will require
                  a willingness and a capacity on the part of the access advocacy agency to participate in
                  designing, managing and operating the access on other agencies' land.            In addition,
                  legislation requiring coastal land-holding agenices to cooperate in the provision of access
                  on their property may be a good idea.
                       While it happens infrequently, public agenices do dispose of public land to other
                  public agenices, quasi-public entities and non-profit organizations, and/or the private
                  sector.   When such transfers involve shorefront land, it is paramount that access
                  opportunities of these properties not be lost.       Regardless of the attractiveness or
                  unattractivenss of the site, or whether or not the site has traditionally been used for

                                                               22

                 access, it is imperative that public access rights be retained in some fashion for
                 shorefront property.

                       The case of the former State Pier in Pawtucket is instru6tive. When this foul, acre
                 site was transferred to the City of Pawtucket for redevelopment in the late 1970's it
                 usage (as a derelict oil depot) and location on a fairly polluted water body, made its public
                 access value marginal at best. Yet, through review by the Division of Planning and the
                 State Properties Committee, transferral of the site was conditioned upon preservation of
                 the public's right to access the water. As water quality conditions in tile Seekonk River
                 improved, and subsequent to the closing of a marina which had been established on tile
                 site, public usage of the site has grown, particularly as a fishing access point. Now on
                 good days throughout the fishing season, fishermen can be seen lined up virtually shoulder-
                 to-shoulder at this site. The site has become the coastal access spot in Pawtucket. The
                 site is proposed to soon become the location of a 60 unit condominium development, a
                 center piece in Pawtucket's plan to revitalize its waterfront. The developer has proposed
                 a two-part project with the second phase providing a waterfront resturant and marina to
                 comply with the public access requirement. While it remains to be seen what will become
                 of the fishermen who have "claimed" the site as their own, it is readily apparent that
                 without the state's forthought to attach the access condition to the property conveyance,
                 this site could have easily become another "residents only" enclave along Rhode Island's
                 increasingly private shoreline.

                       A second example of the access potential of surplus public property, and one that
                 almost slipped away, is that of the (old) Jamestown Bridge. Abandonment of this facility
                 did not involve transferral of state land, and thus did riot come before the State
                 Properties Committee. Local pressure was strong to demolish the bridge to preclude
                 continued public usage of the site. In the end, an act of the General Assembly was
                 required to authorize and direct the Department of Transportation to retain this facility
                 for conversion Into a recreational fishing pier. The saga of tile fishing pier that almost
                 wasn't calls attention to a need for a comprehensive assessment of the access potential of
                 all publicly-owned land, regardless of its current usage. An affirmative responsibility for
                 state and local agencies to act to protect shorellne access opportunities where they exist
                 should also be mandated by law whenever property is transferred, or changed in usage.

                       One aspect of this requirement should be a prohibition on local abandonment of
                 paper steets or street-ends which extend to the water and afford access. Abandonment of
                 such a paper street end, was recently approved in Narragansett, but should not be allowed
                 to become a widespread practice. The "Mapped Streets Act" should be amended as
                 necessary to require a city or town council to make an affirmative finding prior to
                 abandonment of a street that such abandonment will not adversely affect the public's
                 ability to reach the shoreline in the vicinity of the street in question.

                       e.    State Development Assistance Programs

                       While the state's new program of open space acquisition and recreation development
                 grant assistance will directly provide new coastal access opportunities; other state
                 development assistance programs have largely unrecognized potential for making
                 occasional and indirect, but nonetheless real, additions to public coastal access. Two
                 programs presenting possibilities for expanding access to the coastline (and to the
                 shoreline of inland waterbodies as well) are the wastewater treatment facility
                 improvement program and the grants made to water supply systems to construct new
                 drinking water transmission lines.     The opportunities for providing access at sewage
                 treatment facilities have traditionally been neglected.         The federal Environmental

                                                              23

                  Protection Agency produced a study illustratiff     compatible recreation uses which could
                  be accommodated at wastewater facilities,           but has never seriously enforced its
                  guidelines on multiple usage. Potential uses include boat launch ramps and canoe put-ins,
                  passive parks, and even picnic areas (a well-operated treatment facility is not
                  unaesthetic). Now that major responsibility for the grant program is passing to the states,
                  Rhode Island is moving to create a revolving loan program to assist such projects. State
                  regulations for this program should require applicants to assess the capacity of assisted
                  projects to provide multiple benefits, including coastal access where appropriate, and to
                  realize such potential as a condition of a grant or loan.

                        Similarly, grants for new water transmission pipelines should be conditioned upon an
                  examination of the public access potential (and other public recreation opportunities) to
                  be created by virtue of the new facility's location. If such an assessment were mandated,
                  new shoreline access could potentially be created at the landfalls of pipelines which cross
                  water bodies, such as the new trans-bay pipeline.

                  3.    Access Development, Maintenance and Enforcement

                        A third essential component of a comprehensive coastal access strategy is a
                  program for development of appropriate facilities and improvements at selected access
                  sites, as well as on-going operation, maintenance and security support.         Tile negative
                  reactions of neighboring landowners to access sites can generally be attributed              to
                  problems created by the absence of user facilities or lack of defined responsibility for
                  routine maintenance and operation considerations.
                        A program to provide user facilities at access sites sbould be directed by standards
                  developed by the planning element of the overall coastal access program. While the
                  Coastal Resources Management Council has authority under section 46-23-6 of the
                  General Laws to "designate for acquisition and development by the Department of
                  Environmental Management land for tidal rights-of-way parking facilities .... 11, it has cited
                  a lack of resources as precluding it from advising the Department of          @ff  ironmental
                  managment on the development potential of right-or way it has designated.           The DEM
                  has conducted a preliminary reconnaissance of the exiiVng conditions and facilities
                  provided at access sites around upper Narragansett Bay.           In addition, as previously
                  mentioned, the Department's Division of Fish and Wildlife has undertaken a study of the
                  potential for development of new boating access facilities    at existing public sites on the
                  coast. These initial efforts should be the beginning of a larger systematic assessment of
                  the need for, and capability of, right-of-ways and other access sites to accommodate
                  facilities. Development of needed facilities on state controlled right-of-ways and other
                  state properties should, depending upon the magnitude of funding found to be required, be
                  programmed via the DEM Capital Development Program, or funded directly from the
                  Recreational Area Development Fund.

                        Facilities to be considered for future development at access sites include signage
                  (both on-site identification and informational signs and off-site directional signs),
                  pedestrian improvements including paths, trails, walkways, and stairs, parking and other
                  vehicular facilities; user conveniences such as benches, sanitary facilities, and trash
                  receptables; safety and security features such as fencing, gates (if the accessway is to be
                  closed during certain periods), and lighting; and active recreational features such as boat
                  ramps, docks, and fishing piers. Certain access sites may be appropriate for provision of
                  special features to enable mobility-restricted and other handicapped individuals to enjoy
                  the coastal experience.     For example, the State of California utilizes tile low cost-
                  technique of unrolling snowfencing on the beach to allow people in wheelchairs to get
                  beyond the paved areas and "access" the beach proper.

                                                               24

                       The decision of what facilities to provide at W111ch access sites ShOUld reflect a
                 careful analysis of the factors of existing and anticipated usage; intrinsic capability of the
                 site and surrounding natural features; the predominant development character of the
                 environs of the access site; size, configuration, and physical features of the site; ability to
                 service and secure facilities provided; and the geographic availability of facilities. While
                 the planning element of Rhode Island's access program should establish these standar         TY
                 several models,yp
                                      available, including those relied upon by the states of Washington
                 and Califorrff         and by the San Francisco Bay Conservation and Development
                 Commission,     which could be modified to fit Rhode Island's unique characteris ties.

                       Design of the facilities selected for construction must be tailored to the
                 characteristics of the site in question and to tile rigors of the coastal environment (such
                 as flood hazards) generally. Because of the potential for disharmony between accessway
                 users and adjacent landowners, considerable attention should be given to design features
                 which minimize the psychological "intrusiveness" which landowners may feel the
                 accessway creates. Landscaping and the careful placement of facilities on tile site are
                 two important methods of minimizing the chances of ace ess-user/access-neighbor
                 conflicts.

                       Assuring the proper maintenance and provision of security at coastal access sites
                 will be instrumental to the realization of their full capabilities to accomodate users, as
                 well as to protect the rights of neighboring property owners to a clean and peaceful
                 coastal environment. The experience of other states indicates that predominant among
                 operation and maintenance concerns is the problem of litter control, and indeed the
                 complaints most frequently heard from property owners abutting right-of-ways in Rhode
                 Island involve trash left behind by access users. Dealing with litter at access sites should
                 be a two-fold strategy. First, site specific litter control should be instituted based upon
                 the level of usage of each access site and the number of complaints received from users
                 and/or abutters. Some rural sites receiving little usage may require no trash facilities or
                 litter control measures. Other heavily-used sites in urban environments may need daily
                 litter removal and clean up during the heavy usage season. Secondly, since the littering of
                 access ways is just one aspect of a larger societal problem that degrades all our public
                 environments, litter control at access sites must be part of an overall strategy to
                 systemically attack Rhode Island's litter problem. Targeted access site clean-ups, such as
                 that sponsored in Narragansett last year by Rhode Island Shoreline Access Concern
                 (RISAC), as well as the general annual clean-up of the entire coastline supported by Save-
                 the-Bay, Audubon, and other environmental groups need to be institutionalized with
                 support from the state's OSCAR program. The forthcoming recomendations of tile Source
                 Reduction Task Force will present an opportunity for Rbode Island to become a leader in
                 establishing public policy for reducing the overpackaging of consumer. products and
                 controlling tile trend towards non-degradable containers which exacerbate both the litter
                 and solid waste disposal problems. Environmental education and tile teaching of respect
                 for all public lands must also play a role in stemming litter at its source.

                 4.    Access Promotion and Public Education

                       A coastal access program which lacks a public information component is incomplete.
                 Indeed, perhaps the greatest failure of Rhode Island's efforts in the coastal access arena
                 over recent years, has been the inability of its programs to offer a continuing source of
                 readily available and reliable information to access "consumers". All the land acquired,
                 and all the right-of-ways designated have produced only a marginal effect in the public's
                 perception of how accessible the coastline is.

                                                               25

                        The last generally distributed public information product on coastal access@-,,ays ,%'L!s
                  the map produced in the mid-1970's by the Department of Natural Resources based upon
                  the work of the Special Legislative Commission on Right-of-Ways. The most recent map
                  of the state's recreation sites and areas was produced in 1979.         The vast majority of
                  designated right-of-ways remain unmarked and unsigned. There are virtually no roadside
                  signs directing residents and tourists to access points. Combine this dearth of information
                  on public coastal areas, with the highly visable transformation of tile shoreline by
                  development, and is it really any wonder that the average Rhode Islander feels
                  increasingly cut off and disenfranchasied from the coast?

                        Fortunately, progress is being made on the publication of informational maps and
                  guides to coastal access. The Marine Advisory Service at the University of Rhode Island
                  has initiated preparation of a guide to access sites modelled after the products which
                  other states such as California, Florida, and Massachusetts have produced. Available in
                  booklet form for a modest fee, this document will show the locations of access sites (both
                  right-of-ways and public recreation sites), describe how to get to them, and provide
                  pertinent information which potential users need to know (parking and facility
                  availability, restrictions on usage, etc). The Coastal Resources Management Council is
                  also working on a statewide map showing the locations of all right-of-ways designated to
                  date. Both these guides should be brought to fruition and given widespread distribution as
                  soon as possible. Beyond these efforts, a continuing commitment must be made to public
                  access information and education. Published information products must be frequently
                  updated and reprinted. Directional signage to major access points should be provided by
                  the state Department of Transportation and local communities (depending upon tile
                  jurisdiction of the highway involved). Other means of bringing coastal access information
                  to the public via cable television and home videos should be explored. Integrated into all
                  information products should be a message of access user responsibility to inculcate a
                  respect for the rights of neighbors and other users and for proper usage of the coastal
                  environment.

                  5.    Landowner Protection

                        The utilization by the public of private land to reach the shoreline, while a time-
                  honored custom in Rhode Island, admittedly creates a risk to the landowner of legal action
                  should a person using the property be injured. While this risk is probably insignificant if
                  calculated in a rational fashion; nevertheless, the fear of a law suit, whether rational or
                  not, can be a stigmatizing influence upon landowners, even those with a desire to
                  hospitably accommodate public access.          Perhaps as a consequence of the media-
                  highlighted "liability insurance crisis", tile issue of landowner liability is being cited as
                  (one) reason for opposition to efforts to expand usage of designated rights-of-way and for
                  not providing access in some coastal development projects.

                        While a concern, landowner liability may not be the obstacle it is sometimes
                  presented as to be to the utilization and expansion of coastal accessways in Rhode Island.
                  Indeed, this may be one aspect of the coastal access question on which Rhode Island is
                  ahead of some other laites. In 1977 the Rhode Island General Assembly enacted the
                  Landowner Libility Law " which provides for the limitation of liability of landowners who
                  register with the Department of Environmental Management their voluntary permission
                  for opening their lands to the general public without charge for recreational purposes.
                  While the Act did not specifically embrace coastal access per se, its definition of
                  ??recreational purposes" is broadly encompassing and would likely cover most activities
                  which public shoreline access points should legitimately be utilized for.

                                                                11:6

                       One modification of the law may be desirable to further promote coastal access.
                 instead of requiring all coastal landowners who desire the protection of the law to register
                 with the Department of Environmental Management, the limitation of liability could be
                 automatically applied to any land designated as a public right-of-way by the Coastal
                 Resources Management Council pursuant to section 45-23-6(E). (Coastal landowners who
                 wish to indemnify themselves against claims where access is occurring on undesignated
                 paths and trails would still be free to register with DEM.)          With this amendment,
                 designation of property as a public right-of-way would have the effect of offering a
                 private landowner a.compensatory, automatic benefit, instead of being regarded as a
                 singular burden.

                       While the landowner liability law has been on the books for a decade, it has been
                 largely neglected. The hikers and horsemen who advocated its passage felt it should apply
                 automatically to landowners who allow recreation (by not posting their property against
                 trespassing) and grew dissuaded by the difficulty in persuading landowners to register
                 their properties.   Coastal access advocates should take up the drive to publicize and
                 promote this law, possibly in coalition with trail recreation groups, who still have a lot to
                 gain through greater reliance upon this law.

                                                              27

                 IV. SUMMARY AND CONCLUSION

                       This paper has looked at the background and current status of Rhode Island's efforts
                 to improve the public's ability to get to and utilize its shoreline; and has proposed a
                 program of expanded initiatives directed at affording coastal public access a top
                 governmental priority. Particular attention has been given to the legal context which
                 controls coastal access and to the implications which a recent decision of the U.S.
                 Supreme Court has for future coastal access expansion efforts.

                       While a public interest in access to the shoreline has been continuously recognized
                 under legal systems extending back to Roman times, the law has always struggled with the
                 tension between public and private rights in coastal resources. The Public Trust Doctrine
                 asserts common law public rights in the shoreline and obligates the soverign (state) to
                 uphold the public interest, at the same time that a Cons ti tionally-protec ted "wall" of
                 private property fronting the shore frustrates public enjoyment of the privileges of the
                 shore. Common law theories of implied dedication, customary usage, and prescriptive
                 easement have been relied upon to facilitate the practical realization of public shoreline
                 rights, however the evidentiary burden required and the case-specifice nature of these
                 devices has largely limited their broad application.

                       Complimenting the common law are elements of the codified law-constitutional
                 provisions and statutes-which affirm and further explicate the public's rights in coastal
                 and marine resources.     Statutory authorities encompass regulatory programs, such as
                 Rhode Island's Coastal Resources Management Program, which seek to define and protect
                 the public interest in the use and development of coastal areas.

                       Into this complex field of law, the 1987 Supreme Court decision in Nollan v.
                 California Coastal Commission has introduced a new caution on governmental attempts to
                 protect and advance the public's interest in coastal access. The requirement of Nollan
                 that regulatory burdens upon private parties be precisely matched the the effect of the
                 activity regulated, will, without doubt, require more through agency planning and analysis
                 and exhaustive substantiation of development impacts. it may significantly limit the
                 flexibility of government to regulate many aspects of private activities, however the
                 long-term implications in this regard must await future decisions of the Court in related
                 cases.   The greatest danger in the interim, and one that should be resisted by
                 governments, is that the Nollan decision will chasten agency efforts to protect legitimate
                 public interests, while enboldening developers to resist reasonable and equitable solutions
                 to the problems created by development.

                       Rhode Island's traditional approach to coastal access has relied upon two primary
                 strategies:   intensive research leading to designation of right-of-ways providing
                 perpendicular access to the shoreline, and direct governmental acquisiton of coastal sites
                 for recreation.  A comprehensive coastal access program for Rhode Island, this paper
                 proposes, should include not only research and land purchase, but planning and policy
                 development; broad-based access expansion strategies; appropriate facility development
                 and provision of proper maintenance and security at accesses; public information and
                 promotion of greater usage of coastal access opportunities, and protection of private
                 landowners and neighbors of accessways from unnecessary liability exposure or
                 deprecative behavior of access users.

                       These recommendations are not innovative or novel. They are based upon general
                 recommedations made in the 1986 Recreation Element of the State Guide Plan.
                 Development of specific suggestions has largely relied upon the experience of other state
                 and regional access programs, and successful strategies developed where pressing needs

                have inspired creative solutions to many of the same access problems that are now
                emergent in Rhode Island.

                     In sum total, the recommendations presented herein suggest only a broad outline, for
                a new program, and are intended to stimulate further discourse. The next, and most
                critical, step should be delineation of the specifics of a program, including assessment of
                the need for additional legislation or program authorities, decisions on assigning agency
                and jurisdictional responsibilities for various aspects of the program, and the
                determination of appropriate resource levels and sources to support a broadened effort.
                Most critical will be the translation of the public's desire to reach and enjoy the coastline
                and abstract fears about its ability to continue to do so, into a broad-based political
                consensus concerning the need for an adequately-supported, comprehensive and
                coordinated public coastal program for the Ocean State.

                                                             29

                 NOTES:

               1.     Data from 1970 and 1980 U.S. Census of Population.

               2.     R.I. Division of Planning and R.I. Department of Environmental Management.
                      Ocean State Outdoors: Recreation and Conservation Strategies for Rhode Island.
                      September, 1986 at 3.26.

               3.     See Graber, P.H.F., "The Law of the Coast in a Clamsbell" in Shore and Beach v. 48,
                      No. 3. October, 1980 for more extensive discussion of coastal geography and the
                      law.

               4.     An overview of the various types of coastal access is contained in An Evaluation of
                      Public Access to Washington's Shoreline, (Washington Dept. of Ecology) September,
                      1983.

               5.     State of Rhode Island: Public Rights of Way to the Shore. March, 1970.

               6.     "Designation of All Public Right of Ways to the Tidal Areas of the State-Progress
                      Report for 1983-84 Submitted by the Subcommittee on Right of Ways, Coastal
                      Resources Management Council."

               7.     State Planning Council, "Review of the Annual Report of the Coastal Resources
                      Management Council on Rights of Way to the Shore-Supplement to Agenda Item
                      No. 7, December 8, 1983".

               8.     Graber. Supra at 8.

               9.     Ibid.

              10.     146 U.S. 387 (1982).

              11.     Id at 454.

              12.     12 R.I. 348 (1979).

              13.     Ibid.

              14.     19 R.I. 114 (1985).

              15.     67 R.I. 218, 21 A.2d. 554 (1941).

              16.     Id at 228, 558.

              17.     Special Legislative Commission to Study Lateral Access Along the Shoreline of
                      Rhode Island. Final Report. (1980). at 14.

              18.     Nixon, D. "Statement Before Subcommittee on Oversight and Investigations of the
                      Committee on Merchant Marine and Fisheries on Public Access to the Shoreline of
                      Rhode Island". June 29, 1987 at 6.

              19.     Id at 7.

              20.     52 R.I. 280, 160 A. 466 (1932).

                                                           31

               21.    Nixon, Supra at 9.

               22.    Id at 11.

               23.    89 R.I. 103, 99 A. 2d. 7 (1952).

               24.    R.I. General Laws Section 34-7-4.

               25.    Special Legislative Commission... Supra at 7.

               26.    254 Ore. 584, 462 P 2d 671 (1969).

               27.    R.I. Constitution, Article I, Section 16.

               28.    State Planning Council, Supra at 3.

               29.    Nixon, Supra at 22.

               30.    R.I. Division of Planning, Supra at 3.26.

               31.    Ibid.

               32.    R.I. General Laws Chapters 45-22; 45-23; and 45-24.

               33.    Several leading communities, including Providence, East Providence, Bristol and
                      Pawtucket have produced plans for their waterfront areas which seek to
                      systematicly expand public access to and usage of their waterfronts in connection
                      with revitalization efforts.

               34.    55 L.W. 5145.

               35.    Id at 5148.

               36.    Ibid.

               37.    Ibid.

               38.    22 Ill. 2d. 375t 176 N.E. 2d 799.

               39.    R.I. Division of Planning, Supra at 3.26.

               40.    R.I. Coastal Resources Management Council. Briefing.49/50. July-Oct. 1987

               41.    Providence Journal. Dec. 14, 1987.

               42.    Public Laws of 1987 Chapter 87-425, Section 6 (b) (1)

               43.    See Montgomery Co. v. National Capital Realty Corp., 267 Md. 364, 297 A.2d 675
                      (1972)

               44.    Connecticut Coastal Area Management Program, Land's End. Fan 1987.

               45.    The leading case in Rhode Island is'Frank Ansuini v. City of Cranston., 107 RI 63, 264
                      A. 2d 910 (1970), in which the Supreme Court favorably construed the powers of

                                                            32

                      Planning Boards under sections 3 and 6 of chapter 45-23 to include involuntary
                      donations of land but limited such donations to such portion of the land to be divided
                      as may be needed for such public purposes as will result form the specific activities
                      of the developers.

               46.    U.S. Environmental Protection Agency/U.S. Department of the Interior. Recreation
                      and Land Use: The Public Benefits of Clean Waters. Washington, D.C., 1980. pp.
                      20-24

               47.    R.I. Coastal Resources Management Council, Supra

               48.    Bolden, R., Pointek, L., and Benedict, J. Public Points of Access to the Shore on the
                      Upper Narragansett Ba. R.I. Department of Environmental Management. 1986.

               49.    Washington Department of Ecology. An Evaluation of Public Access to Washington's
                      Shore. 1983.

               50.    Calfifornia Coastal Commission, Coastal News. v. 3 No. 6 Oct/Nov. 1987.

               51.    Neuwirth, D. and Mikkelsen, T. Public Beaches: An Owner's Manual. California
                      State Coastal Conservancy. 1987. pp. 26-65.

               52.    San Francisco Bay Conservation and Development Commission. Public Access
                      Design Guidelines, 1985.

               53.    R.I. General Laws. Chapter 32-6.

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