Property Rights: Who Owns the Beaches?

. . The beaches, all sand, earth and ground, really belong to the public.

That recent claim by Miami Beach Mayor Jay Dermer did not endear him to the owners of the city’s luxury hotels, who proudly advertise their beaches as private and even hire guards to chase away non-guests. Beachgoers in other parts of the U.S. may also be skeptical. As many of them have learned this summer, the beaches are not always open to all. In fact, more and more resort towns now boast beach laws that effectively bar anyone but a resident.

Under common law, the states own the portion of the beaches that lies between low and high water marks; the so-called “wet sand” is thus open to anyone. But it has never been made clear whether a person has the right to cross private property to gain access to that public land. In fact, some states grant vested rights in the beaches to the localities, which also claim authority to enforce restrictions on bathing by virtue of their police power. As a consequence, the law varies enormously from state to state and the rights of the public remain ill-defined.

On Long Island’s South Shore, many towns issue parking stickers for supposedly public beaches only to residents or those who rent local houses for the summer. In East Hampton, for example, any other visitor who wants to swim may have to park his car as far as a mile away and walk to the beach. In Massachusetts, the owner of the upland part of the beach may prevent anyone from crossing it to bathe there. That prerogative derives from a colonial ordinance of the Massachusetts Bay Colony (1641), which authorized only fishermen and hunters to cross a private beach. On the New Jersey shore, the snobbish resort of Deal forbids any waterfront property owner or occupant to allow even his own guests to swim from the beach. The rule has rarely been enforced in the past, but when the friends of a wealthy lumber dealer began splashing in the surf at a clambake this summer, the police issued a summons to one guest. He was later fined $200 in court, although the sentence was suspended.

Curbing Coneys. Today, whenever a beach town becomes fashionable, the residents begin to worry about an invasion by strangers. Deal Police Chief John Rehm Jr. defends his community’s bathing restrictions on the ground that they are necessary to prevent Deal from turning into “another Coney Island.” Officials in Washington, D.C., note that a few states and towns have withdrawn applications for federal money to help buy beachfront property under the “Open Space” program. Reason: all such beaches must be open to the public.

Because of the heavy demand for waterfront property, the number of beaches that remain open to the public is shrinking. Of the land suitable for recreation along the Atlantic and Gulf coasts more than 90% is privately owned. The State of California has so many miles of beaches that, for the moment, its inhabitants need not worry about a place to swim, but a recent court fight may prove ominous. The state lost a suit against a real estate firm that ran a fence in Marin County across the beach almost to the summer high water mark. Since the mark is 80 feet higher during winter, the state wanted the company to move the fence with the seasons. An appellate court indicated that the fence may go to an average high water mark—which means that the beach would be completely closed off at times during the year.

No Fence. A similar case will be argued next month before the Oregon Supreme Court. In that state, a motel owner is appealing a lower court decision that denied him the right to erect a fence around a beach. The state claims that the public has traditionally had the right to cross the dry sand area to reach the wet sand. Moreover, a 1967 law requires anyone who wants to build a fence on this land to first get state permission. Texas passed an “open beaches” law in 1961 that permits public access to all beaches in the state. Nonetheless, because of public indifference, land speculators and motel owners continue to close off beach land.

As for Miami Beach, Mayor Dermer charges that the hotel owners have “stolen the beaches” by persuading previous city councils to grant them broad rights to the property. In reality, Dermer argues, they only hold the land in trust for the public. Two years ago, he persuaded the city council to file a suit against the mammoth Versailles Hotel as a test case. As the nation becomes more concerned with preserving its recreational resources for all the people, there is likely to be more litigation —and perhaps legislation—to reassert the rights of the public to the beaches.