A number of legal battles concerning the relationship between public access laws and private property rights for waterfront homes are unfolding across the country, four of which are being closely followed due to the broader implications of their rulings and the precedents they will set — particularly as they affect waterfront homes for sale.
Each dispute pertains to waterfront land that is privately owned yet falls under the protection of public trust doctrine – the legal principle that permits governments to designate certain natural resources for public use. Belonging to the public and private realm simultaneously, this type of land is frequently the subject of lengthy legal proceedings in which the right of landowners to exclusive use of their property is weighed against the right of the government to retain shoreline, bodies of water, and other natural resources for public use. Litigation is often necessary to provide case-specific interpretation of the rights and limits of each involved party.
Two of these legal battles continue to be waged in court, but rulings have recently been reached in the other two. In both cases, the panel upheld the public’s right to use land that is privately owned yet also designated, under public trust doctrine, for public use.
WISCONSIN WATER RIGHTS BATTLE
The first of these cases concerns the right of a waterfront property owner in Wisconsin to construct a dock on flowage waters that border her property, but which also flow over submerged land – the riverbed – that belongs to her neighbor.
Sailor Creek Flowage, Fifield, Wisconsin
Claiming that his ownership of the waterbed beneath the flowage gave him the right to exclusive use of the water flowing above it, David Lobermeier sued his neighbor Gail Movrich – who also happens to be his sister – for installing a dock over the flowage.
Citing the Wisconsin Constitution, which holds navigable waters in trust for public navigation and recreation, the panel ruled against Lobermeier on the grounds that the state’s public trust doctrine grants Movrich, as a member of the public, unrestricted access to the flowage waters, and consequently, the freedom to build a pier as “a natural extension of the navigational and recreational activities” that she is guaranteed.
The case is significant because it set the precedent for disputes involving the right to access a water body that abuts one’s property, yet also happens to flow atop a riverbed owned by someone else. The unique designation of the water body as a “flowage” – a body of water formed by overflowing – also factored into the panel’s decision, as did the fact that Lobermeier owned only a fraction of the flowage waterbed. Had it been a lake, for instance, and the entire waterbed owned by Lobermeier, the panel reasoned, the Wisconsin Constitution would have allowed Movrich to access the water, but not to build a dock atop it.
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WHO OWNS THE DRY SAND IN NORTH CAROLINA?
In the second case, the New Jersey Supreme Court ruled against a retired couple’s claim that an ordinance prohibiting them from building within a 20-foot wide stretch of beach behind their North Carolina home was a violation of their right to exclusive use of their property.
But reasoning that the North Carolina public trust doctrine guarantees public access to all of the state’s beaches – not, as in the couple’s home state of New Jersey, just the wet-sand sections – the Court preserved a long-standing North Carolina common law which holds the entirety of the state’s beach land in trust for the use and enjoyment of the public.
Emerald Isle, North Carolina
Had the Court decided differently, the repercussions would have been so dire, and so far-reaching, that a host of other coastal towns throughout North Carolina contributed money and support to Emerald Isle’s defense efforts.
For instance, important public services including emergency response, beach patrol, trash collection, and environmental conservation groups are all reliant on full public access to the state’s beach, and would have had to drastically modify or even suspend their services had the Court defended the right of private owners to exclusive use of public beach within their property lines.
Another consequence of such a ruling would have been the fencing off of privately owned beach properties from the public portions of beach, which would have proven disastrous as far as the appeal of these beachfront communities for visitors, and dealt a blow to coastal businesses that rely on revenue generated by tourism.
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HALF MOON BAY FIGHTS BACK
In Northern California’s Half Moon Bay, desire for public access to a beach that has been closed to the public since 2010 is so widespread and fervent that the community has mobilized the California State Lands Commission in hopes of seizing the beach from its owner through eminent domain.
Martins Beach, Half Moon Bay, Carolina
Though the cost of doing so could reach up to tens of millions of dollars – a sum that is highly unlikely to be raised, even in the affluent town of Half Moon Bay – state Senator Jerry Hill introduced a bill which would appropriate money from the general fund and allocate it toward the cause.
The California State Lands Commission is unlikely to act until the three pending cases involving the property are settled, the most recent of which is a lawsuit filed by the owner against the Commission and two other government agencies he alleges to have violated his 14th Amendment rights by denying him exclusive use of his own property.
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ZUCKERBERG vs. KAUAI
In Kauai, a public uproar has been caused by the island’s newest inhabitant – Facebook CEO Mark Zuckerberg – whose disregard for the state’s public access laws and indifference to the rights and desires of native residents is rubbing many the wrong way.
Zuckerberg’s new home – a 700-acre estate he purchased for $100 million – contains within its boundaries a number of public beach access points, a popular coastal pathway, and a trail believed by many to be the Ala Loa – a legendary ancient footpath protected for public use under the Highways Act of 1892.
One of two public beaches which flank, and at times overlap, Zuckerberg’s property
Historians, activists, advisors to the Department of Land and Natural Resources on Native Hawaiian Cultural Matters, and many others have been pleading with Zuckerberg to allow public access to the trail – which is in fact guaranteed to the public under the state’s public access laws – but Zuckerberg refuses to respond. Additionally, several community members have reported being accosted and threatened by Zuckerberg’s security guards for using the coastal pathway that runs through his estate. In June, a 6-foot tall rock wall constructed around the property was interpreted by many as an expression of the Facebook mogul’s indifference to their rights and wishes, as well as his blatant disregard for public access law.
The recently constructed wall surrounding Zuckerberg’s estate
Zuckerberg has been urged to at least create easements that make it easier for the public to utilize the beach access points on his property, which lead to two of Kauai’s most legendary and beloved beaches – Ka’aka’anui and Pilaa – but he shows no intention of doing so. According to public access law in Hawaii, the public is afforded unrestricted access to all of the state’s beaches, as well as the right to safe passage along the entire coast, even if safe passage requires people to traverse private property.
Despite the ongoing tension between Zuckerberg and so many of his new neighbors, lawsuits have thus far been avoided. If the Facebook CEO continues to deny them access to these public resources, however, expect the dispute to be settled in the courthouse. Public trust doctrine, the Highways Act of 1892, and common decency each hold that the residents of Kauai are entitled to enjoy any public resources that fall within Zuckerberg’s 700 acres.
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CONCLUSION
For hundreds of years, open access to oceans, shores, and other natural resources has been maintained and enforced as an inalienable human right. A host of factors – overdevelopment of waterfront houses for sale chief among them – have led to a colossal decline in universal enjoyment of this liberty over the past century, however, as privatization of land continues to sequester more and more of our planet’s offerings for the sole enjoyment of a privileged few.
As beaches and shores continue to vanish underneath steadily rising seas, causing rapidly receding coasts to encroach ever more on privately owned waterfront, the problematic relationship between private property rights and public access laws will not only persist, but intensify. One can only hope that waterfront landowners, their governing bodies, and the general public can learn to find compromise; one that acknowledges proprietary entitlements and allows for waterfront homes, yet adheres to the idea that our planet’s natural resources are the rightful domain of all living beings, and not merely the few who purchase and inherit them. True democracy demands, and perhaps begins with, the democratization of land.