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Second lawsuit challenges R.I. shoreline access law

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Second lawsuit challenges R.I. shoreline access law

Sep 27, 2023 | 10:56 am ET
By Nancy Lavin
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Second lawsuit challenges R.I. shoreline access law
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A couple who owns adjacent properties along the Westerly waterfront has filed a complaint in Washington County Superior Court challenging the state's new shoreline access law. (Courtesy Google Earth)

Less than a week after a federal judge threw out the first lawsuit against Rhode Island’s new shoreline access law, a new challenge has emerged.

The Sept. 25  complaint from Westerly homeowners David and Linda Roth, and a limited liability company in their family’s name that owns adjacent property, again challenges the constitutionality of the newly inked clarification of public shore access. Specifically, the 78-page complaint filed in Washington County Superior Court and obtained by Rhode Island Current argues that the law violates state constitutional provisions for separation of power. The plaintiffs claim the new law contradicts the 1982 Rhode Island Supreme Court ruling setting a different boundary for public shore access.

That case has long been a point of disagreement and confusion, with shoreline access proponents pointing to the additional access rights granted under the 1986 Rhode Island Constitutional Convention as a reversal of the court’s prior boundary.

The new law signed by Gov. Dan McKee in June attempted to clarify the decades of debate, delineating a literal line in the sand 10 feet inland from the seaweed or “wrack” line. 

But 11 days after the state law took effect, a group known as the Rhode Island Association of Coastal Taxpayers (RIACT) sued, contending the law amounted to an unconstitutional “taking” of their property and asking for a judge to immediately stop them from enforcing the law. That case was dismissed on Sept. 19, with the judge dismantling the complaint based on the court it was filed in, the plaintiffs named and the arguments made.

The Roths, whose 17.5 acre Niantic Avenue waterfront properties valued at a combined $26 million (including the adjacent property owned by their LLC), are not members of RIACT. 

Coastal property owners seek temporary block of new shoreline access law

Their complaint also makes mention of federal constitutional violations, describing how “trespassers” on their property amount to an unconstitutional “taking” of their land as protected by the Fifth Amendment of the U.S. Constitution. However, the complaint also relies on state constitutional provisions providing for separation of powers, which it argues should enshrine the existing state supreme court ruling setting public access at what is known as the “mean high tide line.”

It also includes an annotated version of the 1986 Rhode Island Constitutional Convention, which is central to disputes over lawmakers’ prior intentions regarding shoreline access.

The complaint filed against the state of Rhode Island and the Rhode Island Coastal Resources Management Council (CRMC) asks the court to permanently stop the state from enforcing the new law, along with a preliminary injunction to temporarily halt its enforcement while the case makes its way through court.

It also provides an alternative for “just compensation” for the property owners for the “physical trespass” on their properties. 

Anthony DeSisto, attorney for the CRMC, said the complaint is being handled by the Rhode Island Office of the Attorney General.

Brian Hodge, a spokesperson for the attorney general’s office, said in an email Wednesday that the office was still reviewing the complaint and will respond in court.

“The Attorney General remains grateful that the General Assembly codified Rhode Islanders’ constitutional rights to shoreline access into state law, and the Office remains committed to protecting those rights against any legal challenge, as it successfully did in a recent challenge to the law brought in federal court,” Hodge said.

Gerald Petros, the attorney representing the Roths and their LLC, also did not respond to questions Wednesday. 

Updated to include response from the Rhode Island Office of the Attorney General.