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The beach legal wars are largely an outgrowth of rapid coastline development. In Texas, for instance, there was little protest from landowners when the Open Beaches Act was passed in 1959, because at that time the Texas Gulf Coast was sparsely developed. Widespread construction of private homes, hotels and high-rise condominiums has come only in the past ten or 15 years. The new objections, in the wake of Hurricane Alicia, are nothing but "the arrogance of affluence," says Assistant Attorney General Ken Cross. "Building on a beachfront is a gamble with nature. When they take that gamble and put their money down, they should be prepared to risk losing it."
Some beachfront dwellers accept their losses from the ever-changing sea, but not from the ever-changing state. In California, the state coastal commission ruled in 1977 that when owners build or rebuild sea walls to protect their property from erosion, all land seaward of the embankments is automatically opened to public access. In 1979 a Ventura County community called Whalers' Village built a revetment and fought the public-access rule. A local court found the requirement unconstitutional in 1983 because it was "the taking of private property without paying just compensation." The ruling is being appealed. "The government is giving these people a Hobson's choice," says Whalers' Village Attorney Charles Greenberg. "Allow your homes to be destroyed or open up your backyard to the public." Santa Monica Attorney Sherman Stacey, who is bringing a similar suit, argues, "If the state wants to improve public access, why doesn't it buy the property and impose the cost on all the taxpayers?" One reason: it is too expensive.
On Nantucket Island, Mass., an innovative approach to that problem is a 2% tax on all real estate sales, the funds to be used to buy back the beaches for the public. But most states are not obliged to pay for what is viewed as a longstanding public right. That may be true even in Maine, which is still governed to some extent by a 17th century grant from the King of England that gave away huge tracts of coastal land, including the beaches, to encourage settlement.
How the King's law now applies will be decided by the Maine courts in a case involving public access to a prime stretch of coastline called Moody Beach. Assistant Attorney General Paul Stern, for one, believes that the courts "will decide that the public has the right to use the state beaches rather than preserving them for essentially the privileged classes. Why shouldn't a mill worker from Lisbon Falls be able to use the beaches?" he asks. The legal tide seems to be going his way.
—By Michael S. Serrill. Reported by Adam Cohen/Boston and Liame Hart/Houston