Nauset Beach in Orleans, Massachusetts, is a 10-mile stretch of sand situated along Cape Cod’s Atlantic coast.
If you want to spend a day at this idyllic spot bordered by beach roses and dune grass, get ready to pay: A one-day parking pass for non-residents costs $30.
“Parking fees of $30, $40 for a day at the beach is just prohibitive for a lot of families,’’ said Massachusetts state Rep. Dylan Fernandes, a Democrat whose district includes a portion of Cape Cod, along with the upscale islands of Martha’s Vineyard and Nantucket. “We’re shutting out people who are low income and that’s a real problem.”
Steep parking fees assessed to out-of-towners aren’t the only barriers the general public faces in accessing the shoreline. Other impediments include a lack of public transit, beach erosion caused by climate change and Colonial-era laws limiting shoreline access on private property.
Advocates for open beaches say such restrictive policies reinforce segregation and racial inequality.
“There’s a history of racism and discrimination at U.S. beaches that a lot of people might not be aware of,” said Staley Prom, an attorney with Surfrider Foundation, a nonprofit environmental group dedicated to protecting beaches and increasing access to the coast. “People from inland areas should also be able to visit our treasured beaches. Public beach access [is] for everyone, not only for the few privileged people who can afford to live on the ocean.”
Lack of access to the shore is an issue in many states, according to research by Surfrider. The organization is involved in a lawsuit in California that began more than a decade ago, when a wealthy property owner in Half Moon Bay locked a gate leading to the beach and hired private security personnel to keep beachgoers out. Surfrider has also filed legal challenges to open up beaches in New Jersey, Florida and Texas, among other states.
More recently, the battle here was over beach access during the pandemic.
Beachfront homeowners are asking the 11th U.S. Circuit Court of Appeals to hear arguments in a case about whether the Northwest Florida county violated the property owners’ constitutional rights by preventing them from using privately owned portions of the sand amid efforts to prevent the spread of the coronavirus. In part, the homeowners contend that the county’s decision was an improper “taking” of property and that they should receive compensation.
Beach closures were a closely watched issue early in the pandemic, as images of crowds of beachgoers, including spring breakers, flashed across the country while the numbers of COVID-19 cases began to soar. Walton County, between Panama City and Destin, has seen a building boom in recent years, with multimillion-dollar homes popping up along its white-sand beaches.
The lawsuit focuses on people being unable to use areas of the beach that they own, rather than on beaches being closed to the general public. Under Florida law, privately owned beach property generally extends to a point known as the mean high-water line. Attorneys for the plaintiffs also have cited property owners’ “littoral” rights, which provide access to the water.
Before that, however, there was a fight over the constitutionality of “customary use,” a concept that has long allowed the public to use parts of beaches that are privately owned. The Florida Constitution ensures public access to portions of beaches “below mean high water lines,” often described as wet areas of beaches. But customary use involves dry-sand areas of beaches above the mean high water line that are often privately owned.
A 1974 Florida Supreme Court opinion allowed the public to use those areas of beaches. Again, Walton County was part of a series of legal battles about beach access, at least in part sparked by a controversial 2018 state law that put restrictions on customary use.
Battle over beach access often comes down to money
The problem is particularly acute in coastal New England, said Andrew Kahrl, a professor of history and African American studies at the University of Virginia in Charlottesville.
“In places where you have high concentrations of wealthy people coupled with high demand, you’re going to see efforts to restrict access to coastlines as well as these types of legal and political battles,’’ said Kahrl, whose 2018 book, “Free the Beaches: The story of Ned Coll and the Battle for America’s Most Exclusive Shoreline,” details the struggle against exclusionary beach policies along the Connecticut shore, including in the wealthy enclave of Greenwich.
“Wealthy communities try to use every legal means at their disposal to restrict access to what is legally a public resource,’’ Kahrl said. "It's symptomatic of a broader set of exclusionary practices that are characteristic of more affluent communities in New England and around the U.S. They took shape alongside forms of racial and class exclusion in housing markets and in public school systems and, in many ways, complemented and reinforced forms of segregation that were being practiced in these other arenas."
This year, lawmakers in Connecticut and Massachusetts tried unsuccessfully to pass legislation to make beaches in their states more accessible.
Fernandes and state Sen. Julian Cyr proposed a bill in Massachusetts to repeal a statute that’s been on the books since Colonial times. It bars the public from engaging in recreational activities on private beachfront property within the intertidal zone, the sandy strip between the low- and high-tide lines. (Under the law, the only uses permitted in the intertidal zone are related to fishing, fowling and navigation.)
Chased off the beach
Massachusetts has among the most restrictive beach access laws in the nation: Just 12% of the state’s beaches are fully accessible to the general public, according to Fernandes’ office. He’s spoken to people who say they were chased off the beach for walking in the intertidal zone.
“You hear from people all the time who have been screamed at or berated or had dogs turn on them for just walking down the beach and to me, that is really problematic,’’ Fernandes said. “The intertidal zone is wet, it has the ocean over it at least twice a day."
"I think it’s a fundamental right that everyone should have access to the ocean,’’ he said.
The Massachusetts bill would have added recreation to the list of allowable activities within the intertidal zone. Fernandes said he is prepared to make a new push next year, even though he believes the issue will eventually be decided by the court.
Legislative efforts in Connecticut to address exclusionary parking policies also failed to win passage. One bill would have barred communities that receive state transportation aid from restricting parking near public beaches and recreation areas. Another proposal would have capped the amount of money municipalities could charge out-of-town residents for parking at local beaches.
Both measures drew strong opposition from suburban officials, who bristled at what they view as state overreach.
“Approval of this bill would be devastating to local communities and would have huge budgetary impacts on local municipalities,’’ Anthony R. Calabrese, parks and recreation director for the shoreline town of Fairfield, said in written testimony provided to a legislative committee earlier this year.
In Fairfield, residents pay $25 for a seasonal beach parking pass and out-of-towners are charged $250. Removing the town’s ability to set parking policies would add more traffic to already congested beach neighborhoods, Calabrese said.
Connecticut cities and towns began jacking up out-of-town beach parking fees following a 2001 state Supreme Court decision affirming the right of nonresidents to use public beaches, Kahrl said. The lawsuit was brought by the Connecticut chapter of the American Civil Liberties Union.
“These are communities where wealthy people live and they have no desire to open up [the beaches] to people who don’t,’’ Kahrl said. “There is a greater awareness and more activism on the issue [of beach access] and we’re seeing lawmakers introduce these bills but we’re also seeing a great deal of pushback. Wealthy communities are feeling more emboldened in many ways to protect their privileges.”