A bill making its way through the Massachusetts legislature – House Bill H254 (pdf) – would drastically change longstanding Massachusetts law regarding waterfront property ownership.  Under current law, a waterfront property owner owns the beach – down to the low water mark – that is “attached” to his or her upland property.  I use the term “attached” because beaches aren’t stationary:  they appear, disappear, re-appear, and move as a result of storms and other natural processes. 

So, for example, when the sand builds up below the low water mark, the abutting landowner’s property line moves seaward with the build-up of sand.  Similarly, if the sea level rises, the abutting landowner’s property line – the low water mark – moves shoreward. 

House Bill H254 changes these longstanding rules for “barrier beaches” – a term not defined in the bill.  The proposed legislation provides that where sea level rise, storms, or other natural processes cause the landward or lateral movement of a barrier beach into an area that was previously occupied by the bottom of a Great Pond (generally, any pond or lake of 10 acres or more), or onto any other public land, the portion of the barrier beach relocated onto the public land shall be and remain in public ownership. 

Under this bill, if an existing barrier beach on Martha’s Vineyard or Nantucket were to move landward into an area that is now – or has ever been – a Great Pond, that beach would become public property.  Similarly, if the barrier beach moves seaward, it would also become public, because all land below mean low water is owned by the Commonwealth.  For some interesting perspective on this bill and its origins, check out this recent article from the Vineyard Gazette.

This proposed legislation has been the topic of a lot of discussion in our office.  We think it exposes the Commonwealth to potentially huge takings claims. We also foresee a raging debate about what is or is not a “barrier beach.”  The one thing that seems certain is that, if this legislation becomes law, it will spawn a torrent of high-stakes litigation.

Editor’s Note:  Dan Bailey recently chaired the Massachusetts Continuing Legal Education (MCLE) seminar “Solving Waterfront Property Disputes.”  Dan’s presentation focused on waterfront property ownership issues that arise from changes in shorelines.