Rhode Island Property Law : Rhode Island Real Estate & Environmental Attorney & Lawyer John Boehnert for Development & Permits in RI

A recent Massachusetts Supreme Judicial Court decision on waterfront property rights dramatically illustrates the different approaches taken by the high courts of Rhode Island and Massachusetts in weighing the interests of public and private property rights at the waterfront.

In Massachusetts the scales are tipped decisively in favor of public rights while in Rhode Island the scales are more evenly balanced, at least where filled tidal land is at issue.

Filled Tidal Land

Filled tidal land is land created by the placement of fill below mean high tide. Much of this filling is historic, before the advent of modern day regulation of the shoreline. For example, in Rhode Island such filling proliferated in the 18^th and 19^th century, and even earlier. Much of downtown Providence and areas along Narragansett Bay and the Providence River are filled tidal land, as are areas along the waterfront on Acquidnick Island, particularly in Newport.

And the filling of Back Bay, the home of Fenway Park, was completed in the late 19^th century.

The Arno Case

In Arno v. Commonwealth, the plaintiff Joseph Arno, the owner of filled tidal land in Nantucket, sought to uphold two lower court rulings, one from the Land Court and one from the Superior Court, that found that despite the arguments of the Commonwealth, certain of Arno’s land was not encumbered with requirements allowing certain public rights on the land under the Waterways Act, by virtue of its having been filled tidal land.

The procedural history of the case is complicated, as are the facts, given disagreement over what high water line was at issue and disagreement over the impact of the Attorney General’s involvement in the case in 1922 on behalf of the Commonwealth. (For help in sorting this out, see the excellent brief submitted on behalf of Mr. Arno by Gordon M. Orloff, Esq. and Gareth I. Orsmond of Rackemann, Sawyer & Brewster, P.C.)

The lower courts found that the process of registering the land under the Registration Act demonstrated that no conditions subsequent were imposed on the filled tidal land under the Waterways Act. The high court disagreed, holding that only the legislature, and not the attorney general or the land court,  could release any restrictions under the public trust doctrine which benefited the public, and the legislature had not done so.

The Public Trust Doctrine

The public trust doctrine differs from state to state but generally imposes restrictions on land below mean high tide for the benefit of the public, in Rhode Island for the purposes of fisheries, commerce and navigation and in Massachusetts for public purposes including  navigation, fishing, and fowling.

In Massachusetts these restrictions for the benefit of the public have generally been found to apply to filled tidal land, as the Arno case demonstrated.

And the restrictions were not minor in nature. For example, under the license that Arno required to develop these filled tidal lands, most of the proposed facility’s ground floor was required to be a “facility of public accommodation” with public restrooms, and public easements allowing passage for any lawful public purpose. That would certainly be considered an intrusive infringement on “private property” rights.

The Rhode Island Experience

Rhode Island has chosen another course. While the State of Rhode Island argued in a 1995 case that only the legislature can extinguish public trust rights in filled tidal land, and must do so by a deed or an equivalent action, the Rhode Island Supreme Court rejected this approach. Greater Providence Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995). (See my blog postings of July 3, 2010 and July 24, 2010 below for further discussions on the Rhode Island experience.)

The Rhode Island Supreme Court rejected this approach because it recognized that historically there had been a great deal of filling along the coast, and that much of this was for the benefit of commerce and navigation, such as piers, warehouses, factories, etc. It recognized that this was done in good faith by riparian landowners, exercising clearly-recognized riparian rights, it was often done at considerable expense, and it was often a type of “private” public works projects”, as they were building infrastructure to support commerce.

But the Rhode Island Supreme Court also looked to judicial precedent and found decisions in the 19^th century supporting the view that when land is created by placing fill below mean high tide, the public trust rights are extinguished in the filled land but the public rights remain in the “new” shoreline. See for example  Allen v. Allen, 32 R.I. 166 (1895).  In other words, the public did not lose its rights to the shoreline, but these rights were necessarily moved seaward.

In essence, the Rhode Island Supreme Court, both in the 19^th century and in the 20^th century, was balancing private property riparian rights with public trust rights. In doing so, Rhode Island's high court brought more certainty to property rights. 

The Essence of Property Law

And as my real property law professor bellowed in opening his lecture in my first law school class on the first day of law school: 

                      “Property law loves certainty. Property law loves certainty.”

As my professor went on to explain, private property ownership is central to our free enterprise system, and it is absolutely essential  that property owners and prospective purchasers know and understand precisely what rights they have and do not have with regard to their property.

One would think Mr. Arno is no exception. After all, he bought land whose title was registered in the Land Court in 1922, after the involvement of the Attorney General on behalf of the Commonwealth. He certainly thought his land was free of the significant encumbrances urged by the Department of Environmental Protection for the benefit of the public, and two lower courts took the same view.

So much for certainty!

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Last month the U.S. Supreme Court spoke in an important waterfront property rights case, and whenever that happens, Rhode Island, being the Ocean State, had better listen. See Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al.

At issue in that case was whether a taking of waterfront property rights had occurred, and whether such a taking could occur by court order as opposed to legislative fiat. The Court did agree that no taking had occurred, but the Court couldn’t agree on much else, with a plurality opinion dueling with two concurring opinions on the judicial takings issue.

I will focus on the waterfront property rights issue, and suggest that you read the excellent positing on Dean Patty Salkin’s Law of the Land blog (June 23, 2010) for a thoughtful discussion of this interesting, and as yet inconclusive, judicial takings issue.

(For those not familiar with littoral and riparian rights jargon, reviewing my immediately prior posting on “Riparian Rights in Little Rhody and Beyond” may be helpful, as I define some of the terminology used by the Supreme Court in its opinion.)

What was at Issue in Florida?

In Florida, as in Rhode Island, the State owns all land below mean high tide, meaning the submerged ocean bottom as well as the land exposed at low tide. This leaves to the waterfront property owner all land above mean high tide.

(In Rhode Island, mean high tide is “the arithmetic average of high-water heights observed over an 18.6-year Metonic cycle” and “is the line that is formed by the intersection of the tidal plane of mean high tide with the shore”. State v. Ibbison,  448 A. 2d 728, 730 (R.I. 1982). A Metonic cycle is the period which begins and ends when a new moon occurs on the same day of the year as it did at the beginning of the last cycle. Id.)

At issue in the Florida case was a statute which allowed municipalities to petition the state to renourish beaches eroded by wave, and presumably wind, action. If the state agreed to renourish the beach, it would establish an “erosion line” which for the purpose of the case at issue was determined to be the mean high tide line. The state would them place fill seaward of this line, thereby creating new land. 

Under Florida’s view, the newly created land was owned by the State.

Concerns of Waterfront Property Owners

It does not take an overactive imagination to guess the reaction of the “former” Florida waterfront property owners. It probably went something like this. 

“I bought waterfront property, I enjoyed waterfront property, I paid taxes on waterfront property, and now I no longer have waterfront property because of the State’s actions. Instead, I have property abutting dry land owned by the State. I think my property rights have been taken, and no one has paid me for them. Isn’t that unconstitutional?”

Good question.

No Taking

The answer, according to the U.S. Supreme court is “No”. In essence, the Court said, your facts are right but your conclusion is wrong.

Property owners argued they were denied two property rights attendant to waterfront ownership status—to receive accretions to their property (i.e. additions of land occurring over time) and to have their property contact the water.

Not so fast, said the Supreme Court. The Court found that waterfront property owners did not trump the rights of the State to create land by placing fill below (i.e. seaward) of mean high tide, and the Court pointed to the doctrine of avulsion under Florida law, where the sudden creation of additional land at the shore (as opposed to the long term creation of such additional land by accretion) did not change the waterfront property owner’s property line. 

In other words, land which may be created by a storm dumping sand and rocks below mean high tide is land owned by the state; the property owner’s boundary does not change.

In its review of Florida law, the Supreme Court found no exception to this rule when the state itself created the avulsion by adding fill below mean high tide. That is, a sudden change in the mean high tide by artificial means (i.e. placing fill below the high tide line) has the same result as a sudden change in the line resulting from natural means (i.e. a storm), and the waterfront property owner is the loser, so to speak, in each instance.

Applicability to Rhode Island

Because  the State also owns all property below mean high tide in Rhode Island, one may be tempted to argue that the same result of "no taking"  would apply in Rhode Island.

While I have not considered this issue in any depth, I would raise some cautions to this conclusion.

First,  Rhode Island has well-settled historic case law, recently confirmed, that a waterfront property owner who extends his property seaward by placing fill below mean high tide owns title to that property in fee simple, provided such filling was done with express or implied state approval or with state acquiescence. Allen v. Allen, 32 A. 166 (R.I. 1895); Greater Providence Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995). These cases of course refer to historic filling prior to the creation of Rhode Island’s Coastal Resources Management Council.

This case law could be used to argue that unlike in Florida, in Rhode Island an artificial avulsion does in fact extend the private property line seaward. 

The counter to this may be that this occurs only in the historic cases, prior to the current coastal resources management statutes and regulations, when it is the landowner filling for the purpose of extending his shoreline, as historically this was done for purposes of creating wharves and docks, facilitating commerce, and for establishing other businesses and residences.

The property owner may make a counter-argument that whether or not the property line moves depends on (i) who is filling below mean high tide and (ii) why is the fill being placed below mean high tide. And perhaps where this argument leads is that to the extent it is the State doing the filling, there must be compelling reasons to find that a waterfront property owner no longer has waterfront property as a result of the filling, giving the Rhode Island Supreme Court’s historic sensitivity to balancing the rights of waterfront property owners with the rights of the public and the State.

Such an approach would be entirely consistent with Rhode Island’s historic Public Trust Doctrine case law, although the impact of Rhode Island’s Coastal Resources Management Program remains to be seen.

However, if no one draws a line in the sand, we may never have to address the issue!

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Rhode Island is the Ocean State, and if anyone doubts the interest of Rhode Islanders in waterfront property rights, perhaps getting caught in this Holiday weekend’s beach traffic will convince them otherwise.

Rhode Island’s Public Trust Doctrine

I learned firsthand the intense interest of Rhode Islanders in access to the shore when some years back I brought a major Public Trust Doctrine case to the Rhode Island Supreme Court, asking the Court to decide the ownership rights of land created by the placing of fill below mean high water at the shoreline. Greater Providence Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995).

At issue in that case was title to millions of dollars of filled tidal land, which is land created by the placing of fill below mean high water to extend out the shoreline into the bay or ocean. The State claimed ownership to this land under Rhode Island’s Public Trust Doctrine based on a then-recent court decision, Hall v. Nascimento, 594 A. 2d 874 (R.I. 1991), which found, in dealing with one small cottage property, that since the State owned all land below mean high tide under the Public Trust Doctrine, land created by the placing of fill below mean high tide was also owned by the State.

Under the Public Trust Doctrine, the State owns all land below the high water mark in a proprietary capacity for the benefit of the public, to preserve the pubic rights of fishery, commerce and navigation in such waters. Nugent ex rel. Collins v. Vallone, 161 A. 2d 802, 805 (R.I. 1960).

The decision in Hall raised concern throughout the State, as over our history Rhode Island waterfront property owners had created thousands of new acres of waterfront land by filling below mean high tide throughout the State. This was done to create wharves, docks, land for business operations and residences. 

After Hall, the State claimed it owned all this land, on which private property owners had been paying taxes for years, and, adding salt to the wounds, the State wanted to charge the “former owners” a license fee to continue to use and occupy the land they thought they owned.

In the Greater Providence Chamber of Commerce case, which I brought on behalf of the Chamber, Narragansett Electric Company, Providence Gas Company, and the Rhode Island School of Design, the Court cleared title to this filled land in favor of the private property owners against claims by the State of State ownership. In doing so, the Court established a test to clear title to hundreds of millions of dollars of other filled tidal land throughout Rhode Island.

That experience, and subsequent experience dealing with waterfront property rights and disputes, convinced me how important waterfront property rights are here in Rhode Island, whether to beach goers or property owners.

Understanding the Terminology

Accordingly, I will be spending several postings in this blog to discuss a  United States Supreme Court case issued last month which addressed waterfront property rights in Florida, and to discuss its impact on Rhode Island waterfront property rights. That decision implicated the Public Trust Doctrine and an alleged state taking of waterfront property rights without paying just compensation, and it raised the intriguing question of whether or not there could be a “judicial” taking of private property rights (i.e. a taking by a court decision as opposed to by legislative or regulatory activity). Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al.

In this first article, I wanted to set the stage for that discussion by addressing some of the terminology of waterfront property rights, as it is somewhat arcane, and it is a necessary precursor to understanding  the issues raised  in the Florida case, as well as the issues we face here in Rhode Island which may arise not just from State actions but from natural forces.

Riparian versus Littoral Rights

In the first instance, let me “clarify” my headline in this blog. Riparian rights customarily refers to rights pertaining to rivers and streams, and littoral rights refers to property rights pertaining to ocean waters. However, since the Rhode Island Supreme Court has used the terms interchangeably, I do so here as well. (And there is some basis for their doing so, as in Rhode Island we have tidal, brackish rivers, we have freshwater marshes and we have saltwater marshes.)

Accretion and Alluvion

Accretion is the addition of sand, sediment or other unconsolidated deposits (known as alluvion or alluvium) to waterfront land, which occurs gradually and imperceptivity over time.

Reliction

Reliction is when land which was once submerged becomes dry land by the waters receding.

Avulsion

Avulsion is the process of a sudden and perceptible change in the boundary of waterfront land, either through the addition of land that expands the size of the parcel or through formerly upland property being submerged, diminishing the size of the upland parcel.

Erosion

Erosion is the natural and generally gradual process of reduction of the shoreline by weathering and transporting of solids by the actions of wind, water, ice, etc.

As a generalization, when there has been a sudden and perceptible change in the shoreline, as by avulsion or reliction, the property boundary does not change, but remains as before (i.e. the mean high water mark, if in Rhode Island). When there has been a slow or gradual change in the shoreline, as by accretion or erosion, as a generalization the property line does change, with the landowner either losing property (erosion) or acquiring more property (accretion).

These concepts will be discussed in more detail in the next posting when examining the Supreme Court’s decision in the Beach Renourishment case.

But for now, it is time for me to head to that shoreline, and hopefully avoid the worst of the beach traffic!

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