Beach Is It?
So whose beach is it, anyway?
Some people think Delaware's sandy beaches are like the sky -- they belong to everyone.
Some, most notably those who have plunked down millions for oceanfront homes, think the beach -- at least what's between their homes and the Atlantic Ocean -- belongs to them.
Some of the private communities along the coastline are downright militant in their quest to keep "outsiders" off their beaches. Sussex Shores, just north of the town of Bethany Beach, has erected a fence down to the water line and posts guards at the boundary. You can walk along the water's edge at Sussex Shores, but don't stop walking or you'll be hustled along.
The Bethany Beach Landowners Association, in a letter dated June 4, 2002, asked Attorney General Jane Brady for her help in enforcing something called the Public Trust Doctrine, which lays out the public's right of access to beaches for recreation.
What is the Public Trust Doctrine? It originated in 6th century Roman law, and has been extended to all 50 states, which hold in trust lands including tidal lands or beaches. In the United States, there are 88,633 miles of tidal lands under public trust.
Originally, the Public Trust Doctrine was limited to uses such as navigation, but in recent years, according to a 1990 study, the uses have been extended to include such things as sunbathing, swimming, strolling and "just being there."
"Over the centuries, the Public Trust Doctrine has kept pace with the changing times, assuring the public's continued use and enjoyment of these lands and waters," wrote David C. Slack, attorney for the Coastal States Organization and project manager for the 1990 National Public Trust Study.
The study, funded by the Coastal Zone Management Act, called the Public Trust Doctrine a "powerful tool" for ensuring access to lands in the public trust. And Brady acknowleged in her June 24 letter to BBLA president Calvin Baldwin that Delaware's tidal lands are held in trust "for the public's benefit" through the Public Trust Doctrine.
But -- and this is a big but -- Brady also said in Delaware, private ownership extends to the low tide mark. And Delaware courts have not kept pace with other states, appparently, because the state's courts have not recognized public rights beyond navigation, fishing and police power.
In neighboring New Jersey, Brady said, the state owns the "foreshore," the area between high and low tide marks, as well as the dry sand adjacent to it.
The attorney general essentially wished the Bethany Beach folks well and told them they should seek help at the legislative level if they wish to change things. Brady referred to Delaware's interpretation of the Public Trust Doctrine as "the state of the law" in Delaware -- interesting choice of words, I thought.
When the issue of public access to "private" beaches came up at the July 26 Bethany Beach Town Council meeting, a Sussex Shores resident took umbrage at what he hadn't heard yet, but apparently felt was coming -- an allegation that the community has taken public funds for beach replenishment and should be forced to allow public access to its beaches.
"We take care of our own beaches," said John Neff of Sussex Shores.
Well, not according to Bob Henry, who heads the Shoreline and Waterway Management Section of the state's Department of Natural Resources and Environmental Control.
Henry said that Sussex Shores has never contracted for sand to be pumped onto its beaches, as has neighboring Bethany Beach, as well as Sea Colony and Middlesex Beach to the south. Both of those private communities footed the entire bill for their portion of the project.
"We encourage it, " Henry said of widespread participation in replenishment. Why? Because the longer a beach replenishment project is, the more stable the newly widened beaches are, he explained.
Henry said as far as he knows, the most Sussex Shores residents have done to maintain their beach is to put up dune fencing and plant dune grass to help maintain the dune line.
But has the private community benefitted from publicly funded beach replenishment projects in Bethany Beach? Absolutely, according to Henry.
"They benefit to a large degree from our activity in Bethany Beach," he said. Not only do the state's replenishment projects include a "taper area" at either end -- which Henry said often extends onto "private" beaches -- but it's also a fact that sand deposited onto beaches will drift onto other areas, and in this area, the natural drift is to the north.
According to Henry, however, that benefit is not enough for Sussex Shores to be considered a public beach. Well, gosh, no, they didn't ask for that extra sand, but heck yeah, they'll take it. Even if it means buying a little more fencing to keep out the riff-raff.
Bethany Beach, in jumping on this particular bandwagon, has fired the opening salvo in what could be an interesting battle. Their reasoning for seeking more public access to private beaches is certainly valid -- with homes going up at an alarming rate within a few miles of the coast, there is a growing premium on beach sand on which to plant your umbrellas. And there are only so many places for all those new residents to go.
Parking in Bethany Beach continues to be tricky to find on peak beach days. Lines to get into state park beaches routinely snake onto Route 1 on sultry summer days. Clearly, there's a public beach shortage in Delaware.
As longtime area resident Joy Cadden said at the Bethany Beach meeting, she grew up in towns just inland from there thinking of Bethany Beach as "my beach." While she's never lived in the resort town, Cadden now owns a business there and wants the town to thrive.
Many like Cadden, who live in Coastal Sussex because they love it here, have a hard time with the concept of "no beach access" signs posted in so many communities. An area that used to be known for its quaintness and family atmosphere is now becoming overrun with ostentatious "McMansions." Heck, there's even a gated community in Ocean View now, with homes that look like they should be in O.J. Simpson's old neighborhood.
Cal Baldwin and the BBLA may not have gotten the answer they were hoping for from our attorney general. There's' no doubt that getting any changes through the General Assembly would be quite an undertaking. Even Bethany Beach's attorney, John T. "Terry" Jaywork, said he thinks there will be many complex legal issues involved.
Not to mention the sheer logistics -- if the beaches were opened, just where in these private enclaves would the huddled masses park? And whether Bethany Beach gets any help from other coastal towns in its quest remains to be seen.
But it would be interesting to see what the First State's lawmakers can do with a 1,500-year-old doctrine.
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