Public Accommodation

Beacon Hill MAIt’s a classic Boston neighborhood turf battle. Mayor Martin Walsh, the Irishman from Savin Hill vs. the Brahmins of Beacon Hill. The nature of the dispute:  sidewalk ramps in Beacon Hill for the disabled.

Boston Mayor Marty Walsh is fed up with some of Beacon Hill residents’ long time opposition to the installation of disability sidewalk ramps and other accommodations for the disabled under the Americans With Disabilities Act. Always up for a fight to preserve the historical character of “the Hill,” the Beacon Hill Civic Association and its members are upset because they feel that Mayor Walsh is not willing to consider what they feel is more historically appropriate materials and designs for Beacon Hill sidewalks and streets. They also accuse Mayor Walsh of exacting political revenge for not getting any votes in the recent mayoral election — he was decimated in Beacon Hill voting by a 70% margin over challenger, Harvard trained John Connolly. Hogwash, says the Mayor. Caught in the middle of this unfortunate fight are disabled folks who have a hard time navigating Beacon Hill’s narrow, winding, cobblestoned thoroughfares.

20140717_142510-1200x675The brouhaha has now moved to Suffolk Superior Court where the BHCA has filed an interesting lawsuit against the City, claiming that the Beacon Hill Architectural Commission has the final legal say in what type of materials and design are used for the accessibility project. Some interesting legal issues will be decided in this case, the most important of which would be whether the federal ADA trumps local and state regulations on historical design where a district or building is listed on the National Registry of Historical Places.

The streets of Beacon Hill are lined with red brick sidewalks, giving it a warm, welcoming feel. The proposed disabled ramps are grey concrete, topped with bright red panel inserts. Yes, these ramps didn’t exist during the times of John Hancock, but Charles Street was also lined with horse dung for all to step on. Let’s hope Mayor Walsh and Beacon Hill residents can put the emotion and rhetoric aside to do what’s right for the disabled. After all, they have every right to enjoy Charles Street, with or without horse dung. 

 

 

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“My life is like a stroll on the beach…as near to the edge as I can go.”

— Henry Thoreau

No Massachusetts summer is complete without some good times spent on the beach, be it on Cape Cod, Ipswich, or Duxbury. But what happens when you are taking a nice stroll on the beach and hit one of those “No Trespassing — Private Beach” signs? Can you continue walking? Can you walk on the water’s edge or wet sand? What about swimming, fishing or boating? Most folks are unaware of Massachusetts’ archaic beach access laws, and I will try my best to explain them in this post.

Origins To Colonial Days:  General Rule, No Public Access To Private Beach Areas

Massachusetts has a unique set of laws giving coastal property owners more extensive private rights to beachfront area than other states. In most coastal states, there is unlimited public access to beachfront areas and you can walk unfettered along the beach. In Massachusetts, however, that is not the case. Here private coastal property owners own the beach area adjacent to their properties down to the mean low tide area, with some limited public access exceptions. This is how the concept of “private” beach areas have been established.

The origin of this law dates back to the Mayflower days. In order to facilitate coastal development, under the Colonial Ordinances of 1641-47, the Massachusetts Bay Colony conveyed most, but not all, rights of ownership to the area between the average or mean high water mark and the low water mark (up to 100 “rods,” or 1,650 feet, from the high water mark) to all private coastal landowners. The land—but not the water—between the two tide marks is known as “private tidelands.” This typically includes all of the wet sand area on beaches.

The general rule is that with some limited exceptions explained below, beach-goers in Massachusetts cannot access any private beach area down to the low tide water mark without the permission of the beachfront property owner.

Limited Public Beach Access Between Low and High Tide Area for “Fishing, Fowling and Navigation”

The Colonial Ordinance reserved three specific and important rights of public use within the private tidelands for “fishing, fowling and navigation.” Those permissible uses have been broadly interpreted by Massachusetts courts to include: (1) the right to fish or to collect shellfish on foot or from a vessel; (2) the right to navigate, including the right to float on a raft, windsurf, or sail; and (3) the right to hunt birds for sport or sustenance, on a boat or on foot. (Though there is no court decision on point, the Attorney General maintains that this right also covers bird-watching.)

Accordingly, the public has access to any so-called “private” beach or any private tideland area as long as you are legitimately engaging in “fishing, fowling, or navigation.”

These antiquated Massachusetts beach access laws have created many disputes between public beach-goers and wealthy coastal property owners who have attempted to enforce a “private beach” regime. Under the Colonial Ordinance, no private property owner may deny access to someone who is fishing or hunting for birds or even surfing or launching a kayak. Indeed, knowledgeable beach-goers are often seen walking with beach with fishing rods in hand or shellfish equipment, so as to claim access rights under the Colonial Ordinance.

What About Swimming?

Swimming rights are a bit confusing. According to the courts, swimming in the intertidal zone is included within the reserved public right of navigation, but only so long as your feet don’t touch the bottom! And you don’t have a right to walk along the wet sand area solely for the purpose of gaining access for swimming. So basically you have the right to swim into a private beach area provided you continue to swim and don’t stand or walk into the private tidelands zone. So try not to drown..

Can I Walk Below the Low Tide Line?

Yes, private property owners cannot interfere with the public’s right to walk along the submerged lands that lie seaward of the low tide line. With few exceptions, they don’t own that land; the public does. But this is tricky because the mean low tide area is seldom marked and changes historically.

I own beachfront property. I don’t mind the public walking along my wet sand area even if they are not “fishing, fowling, or navigating,” so long as by allowing this, I don’t lose any property rights in the process. Is there some way that I can be a ‘good citizen’ and still retain my property rights?”

Yes. What you appear to be worried about is the legal concept known as “prescription” or “adverse possession.” I have written a detailed post on adverse possession here. This is the idea that if someone uses your property for a sufficiently long time, they may be able to claim a property interest in it. For someone to be able to make this claim, however, their use has to be without your permission. Therefore, openly allowing the public to walk across your land (e.g., by “posting” such permission) is usually the best way of defeating someone’s ability to accrue such a right. Posting the land in this manner, of course, would not affect any access rights that anyone had already obtained before the posting.

Under existing state law, a property owner who allows the public to use his or her land for recreational purposes without charging for such use is shielded from liability for injuries sustained during that use so long as the property owner did not act with such “fault” that his or her conduct constituted “wilful, wanton or reckless conduct.”

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Well, that’s it on the rather complicated topic of Massachusetts beach access law. Enjoy your beach day and perhaps start carrying a fishing rod or line when you take a long walk!

More Helpful Resources:

Massachusetts Coastal Zone Management Fact Sheet

FAQs on Beach Access By Trisha Daly-Karlson

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Richard D. Vetstein, Esq. is an experienced real estate litigation attorney who’s handled numerous adverse possession and beach access cases in Land Court and Superior Court. Please contact me if you are dealing with a Massachusetts real estate dispute.

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Update (8/3/12): Restroom Access Bill Signed Into Law

Retailers Regrettably Opposed to Law For Restroom Access To Crohn’s, Colitis Sufferers

I heard about this bill on the radio yesterday, and at first I was caught up in the bathroom-humor word play by the DJ. But when I did some more research on Crohn’s Disease and asked my Facebook friends about it, this became serious, as it should.

Millions of Americans (including just retired Pats lineman Matt Light: read great ESPN piece) suffer from debilitating Crohn’s disease, ulcerative colitis and other inflammatory bowel diseases. Victims suffer from frequent and sudden bowel movements, diarrhea and excessive urination. For these folks, a walk around Boston can turn literally soiled when shopkeepers close the door on restroom access. This is an all too common reaction by insensitive shopkeepers, and State Rep. Louis Kafka wants to change that.

Rep. Kafka (D-Stoughton) filed the “Restroom Access” bill, which the House initially approved this week, on behalf of a Sharon girl with an intestinal disorder who found herself in uncomfortable situations on shopping trips with her mom. “When the problem arises, they need to get to a bathroom quickly and, in some cases, there are no public restrooms,” he said. ((Note: this bill is completely different from the controversial “Bathroom Bill” giving transgendered persons restroom access.))

The new legislation, if passed, will require Massachusetts retailers and restaurants to open their private bathrooms to sufferers of inflammatory bowel diseases — and fine them $100 if they don’t. The law would apply only to people with Crohn’s disease, ulcerative colitis or any other medical condition requiring immediate access to a bathroom, as well as those who wear ostomy bags.

Retailers Opposed, But Why The Big Stink?

The Restroom Bill is unfortunately causing a major stink with retailers. “Why single out only retailers?” Retailers Association of Massachusetts President Jon Hurst told the Boston Herald, “Why not banks, why not office buildings, why not government buildings? I walk into the State House and see a lot of locked bathrooms.” Donna DePrisco, vice president of Boston’s DePrisco Diamond Jewelers, said legislative action just isn’t necessary.

The bill has been tweaked to address retailers’ concerns. It applies only to stores with at least two people working, so cash registers aren’t left unmanned; it absolves retailers from liability; and the restrooms must be in accessible areas that don’t pose health or safety risks to customers.

Well-known Condominium Attorney Stephen M. Marcus, who suffers himself from Crohn’s Disease and created the charitable foundation, IntestinalFortitude.com, supports the bill and says that

“Access to restrooms issue is a serious one for the 1.4 million Americans with Crohn’s and colitis, mainly teenagers. I’m sure retailers will adjust to this law in the same way condominium and apartment owners adjusted to the rights of persons with disabilities to make reasonable modifications to their property for persons with disabilities.”

Support the Restroom Access Bill!

My personal opinion is that I strongly support this bill. I think retailers’ concerns are way overblown.  Retailers are worried about lawsuits, but the bill provides immunity from liability for slip & falls and injuries. More importantly, allowing restroom access for people who medically need it is basic human decency and common courtesy.

If retailers were really savvy on public relations, they would turn this into a positive by putting a sign or sticker with “Restroom Open” with the familiar purple Crohn’s Disease ribbon. How’s that for a win-win!

For more information about Crohn’s and Colitis Disease, check out www.ccfa.org. To support the Restroom Access Bill, please email or write to Rep. Louis Kafka and reference House Bill 2366.

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Richard D. Vetstein, Esq. is a Massachusetts real estate and land use attorney. Mr. Vetstein frequently advises Massachusetts property owners concerning their legal obligations under various public accommodations laws.

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