Opinion of the Justices, No. 94-322
| Court | Supreme Court of New Hampshire |
| Citation | 139 N.H. 82,649 A.2d 604 |
| Docket Number | No. 94-322 |
| Parties | OPINION OF THE JUSTICES (Public Use of Coastal Beaches). Request of the House of Representatives |
| Decision Date | 27 October 1994 |
Page 604
Page 605
[139 N.H. 95] Jeffrey R. Howard, Atty. Gen. (Anne E. Renner, Asst. Atty. Gen., on the memorandum), filed a memorandum in support of negative answers to questions one and two.
Thomas J. Kirby, Pelham, filed a memorandum on behalf of twenty-three members of the New Hampshire House of Representatives, in support of an affirmative answer to question one and negative answers to questions two, three, and four.
McLane, Graf, Raulerson & Middleton P.A., Concord (Gregory H. Smith & a. on the memorandum), filed a memorandum on behalf of the New Hampshire Senate, in support of an affirmative answer to question one and negative answers to questions two, three, and four.
Senator Burton J. Cohen, New Castle, filed a memorandum in support of negative answers to the questions presented.
Upton, Sanders & Smith, Concord (Frederic K. Upton, on the memorandum), filed a memorandum on behalf of affected beachfront property owners in support of affirmative answers to the questions presented.
Michael L. Donovan, Concord, filed a memorandum on behalf of the Town of Rye in support of negative answers to the questions presented.
Noucas & Keenan P.A., Portsmouth (Christopher W. Keenan, on the memorandum), filed a memorandum on behalf of the Concerned Citizens of the Seacoast, in support of negative answers to the questions presented.
[139 N.H. 96] Devine, Millimet & Branch P.A., Manchester (Thomas Quarles, Jr. and Richard W. Head, on the memorandum), filed a memorandum on behalf of the Audubon Soc. of New Hampshire, the New Hampshire Wildlife Federation, and the Appalachian Mountain Club, in support of an affirmative answer to question one and negative answers to questions two, three, and four.
Dr. Chris D. Kehas, Rye Beach, filed a memorandum in support of an affirmative answer to question one and negative answers to questions two, three, and four.
Stephen J. Little, Mary Gladys Little, and Richard D. Little, Portsmouth, filed a memorandum in support of affirmative answers to the questions presented.
Byron M. Philbrick, Rye, filed a memorandum in support of affirmative answers to the questions presented.
Eugene Ritzo, Rye, filed a memorandum in support of affirmative answers to the questions presented.
Request of the House of Representatives
[139 N.H. 84] The following request for an opinion of the justices was adopted by the House on May 5, 1994, and filed with the supreme court on May 6, 1994:
"Whereas, there is pending in the House, SB 636, 'An act relative to the public use of coastal beaches for recreational purposes;' and
"Whereas, an amendment has been proposed to SB 636 (document # 6087B); and
"Whereas, SB 636, as amended, recognizes that New Hampshire holds in public trust all shorelands subject to the ebb and flow of the tide; and
"Whereas, based on testimony presented to the house Committee on Resources, Recreation and Development, SB 636, as amended, acknowledges that for an extended period of time exceeding 20 years the public has made recognized, prevalent, and uninterrupted use of the vast majority of New Hampshire's coastal beaches, including the high ground generally known as the 'dry sand' area; and
"Whereas, SB 636, as amended, recognized that this 'dry sand area' may lie shoreward of the public trust shoreland; and
"Whereas, SB 636, as amended, would recognize and confirm a public easement in the coastal beaches where the public has traditionally had access; and
Page 606
"Whereas, SB 636, as amended, would establish that when a dispute exists over the public's access rights to land in any defined coastal beach area, a presumption arises that a public easement exists on that disputed land; and
"Whereas, questions have arisen as to the constitutionality of certain provisions of the bill; and
"Whereas, it is important that the questions of constitutionality of said provisions should be settled in advance of its enactment; now therefore be it
"Resolved by the House of Representatives:
"That the Justices of the Supreme Court be respectfully requested to give their opinion on the following questions of law:
1. Whether New Hampshire law identifies a particular coastal feature or tidal event as outlining the maximum shoreward extension of the public trust area boundary as defined in SB 636, [139 N.H. 85] as amended, beyond which the probable existence of private property rights may, without a public easement arising from historical practice, restrict any public access under the provisions of Part I, Article 12 of the New Hampshire Constitution and the 5th amendment of the United States Constitution?
2. Whether the effect of SB 636, as amended, which recognizes that the public trust extends to those lands 'subject to the ebb and flow of the tide' infringes upon existing private property rights as protected by Part I, Article 12 of the New Hampshire Constitution and the 5th Amendment of the United States Constitution?
3. Whether the provisions of SB 636, as amended, which recognize a public easement in the 'dry sand area' of historically accessible coastal beaches is a taking of private property for a public purpose without just compensation in violation of Part I, Article 12 of the New Hampshire Constitution and the 5th amendment of the United States Constitution?
4. Whether those provisions of SB 636, as amended, which are based on the finding that the public has made recognized, prevalent, and continuous use of the New Hampshire coastal beaches, and which require any property owners claiming an exception to this finding to bear the burden of proving such exception, deprive such owners of property rights without due process of law in violation of the 14th amendment of the United States Constitution?
"That the clerk of the house of representatives transmit a copy of this resolution along with a copy of SB 636 and the amendment to SB 636 to the Justices of the New Hampshire Supreme Court."
The following response is respectfully returned:
To the Honorable House:
The undersigned justices of the supreme court submit the following reply to your questions of May 5, 1994. Following our receipt of your resolution, we invited interested parties to file memoranda with the court on or before September 1, 1994.
SB 636 (the bill), as amended, proposes to amend RSA chapter 483-B (1992) by inserting after section 9 a new section, 483-B:9-a, titled "Public Use of Coastal Beaches." The legislature's purpose is set out in the bill as follows:
It is the purpose of the general court in this section to recognize and confirm the historical practice and common law right of the public to enjoy the existing public [139 N.H. 86] easement in the greatest portion of New Hampshire coastal beach land subject to those littoral rights recognized at common law. This easement presently existing over the greater portion of that beachfront property extending from where the 'public trust' ends across the commonly used portion of sand and rocks to the intersection of the beach and the high ground, often but not always delineated by a sea wall, or the line of vegetation, or the seaward face of the foredunes, this being that beach where violent sea action occurs at irregular frequent intervals making its use for the usual private constructions uneco[n]o[m]ical and physically impractical.
The bill defines "coastal beaches" as "that portion of the beach extending from where the public trust shoreland ends, across the
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commonly used portion of sand and rocks to the intersection of the beach and high ground, often but not always delineated by a seawall, or the line of vegetation, or the seaward face of the foredunes."The bill states that "New Hampshire holds in 'public trust' rights in all shorelands subject to the ebb and flow of the tide and subject to those littoral rights recognized at common law" and that the " 'public trust' shoreland establishes the extreme seaward boundary extension of all private property rights in New Hampshire except for those 'jus privatum' rights validly conveyed by legislative act without impairment of New Hampshire's 'jus publicum' interests." The bill then provides that
for an historical period extending back well over 20 years the public has made recognized, prevalent and uninterrupted use of the vast majority of New Hampshire's coastal beaches above the 'public trust' shoreland. The legislature recognizes that some public use of the beach area above the public trust lands is necessary to the full enjoyment of the land. The general court recognizes and confirms a public easement flowing from and demonstrated by this historical practice in the coastal beaches contiguous to the public trust shoreland where the public has traditionally had access and which easement has been created by virtue of such uninterrupted public use.
Further, the bill states that "[a]ny person may use the coastal beaches of New Hampshire where such a public easement exists [139 N.H. 87] for recreational purposes subject to the provisions of municipal ordinances," but "[t]he provisions of [the bill] shall in no way be construed as affecting the title of property owners of land contiguous to land subject to a public easement." Finally, the new section provides that "[i]n a suit brought or defended under this section, or whose determination is affected by this section, a showing that the area in dispute is within the area defined as 'coastal beach' shall be prima facie evidence that a public easement exists."
Your first question asks "[w]hether New Hampshire law identifies a particular coastal feature or tidal event as outlining the maximum shoreward extension of the public trust area boundary ... beyond which the probable existence of private property rights may, without a public easement arising from...
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