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Brenden P. Leydon says he doesn’t know what it is about the ocean that makes people lose their cool, like the otherwise refined residents of Greenwich, Conn., who snarled that he was a “spoiled brat” because he wanted to jog on their sand. “These are issues of constitutionality and public policy,” says Leydon, who works for Stamford, Conn.’s Tooher & Wocl, and who won a July 26 ruling from his state supreme court saying Greenwich cannot keep nonresidents off of its municipal beach. “Their way of coping seems to be just to say I’m a jerk.” Leydon started his crusade in law school after a municipal gatekeeper stopped his jog in 1994, pursued it for five years and vows to keep suing municipalities until every mile of Connecticut’s coastline welcomes him. So he is not exactly immune to tidal-driven passions. Is anyone? This summer, as in probably every summer going back to the Code of Justinian, people are fighting over who gets to throw their beach blankets where. Controversies pit private property against public usage, haves against have-nots: � Kicking off the season in May, the New Jersey attorney general sent letters warning five homeowner associations with private beaches that they had to allow public access to 10 feet of dry sand. The parties are reportedly deadlocked in mediation. � In North Carolina, the Oak Island Property Owners Association sued the town of Oak Island over its refusal to let them build a private walkway to the beach over a public dune. � In Dana Point, Calif., a developer made public his legal bills: $8 million spent battling the city council for approval to build homes on the strategically placed Headlands overlooking the Pacific — with no assurance from the Coastal Commission, which protects the public’s right to the ocean, that he can build so much as a lean-to. If there’s a legal trend here, land-use scholars say, the residents of Greenwich and their beleaguered brethren around the country are on the losing end of it. “All that we’re talking about was pretty much decided by the Illinois Central case in the 1890s,” says Professor Ann Alexander of Rutgers University’s Environmental Law Clinic. There the Supreme Court established that beaches belong to the citizenry under the public trust doctrine but left it to states to draw the lines. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892). In most states, the line is a “relaxed” one that says the public’s share starts at the fluctuating mean high tide line, says Kerry Kehoe, counsel to the Washington, D.C.-based Coastal States Association. Texas gives the public more dry sand by bringing the line back up to the point of vegetation or dunes. A handful of Atlantic Coast states draw the line further down into wet sand at the low tide line. What one sees in courts often tends to be clean-up actions, Kehoe says, such as deciding how much visitors can be charged for parking and whether access required a ramp for the handicapped. Jamee Jordan-Patterson, a deputy attorney general who represents the California Coastal Commission, says she was introduced to the issue as a schoolgirl in the 1970s. She tried to sit on the sand in the exclusive Malibu Cove Colony and was evicted by a private security guard. A decade later, commoners had no trouble finding well-marked access routes to that gorgeous beach, above or below the gated enclave, and strolling by the back yards of Barbra Streisand, Robert Altman and the Shah of Iran’s sister. This, Jordan-Patterson observes, “says that we’ve been a success.” The Coastal Commission, California’s 500-pound gorilla of public beach access, was created in 1976 by a vote of the people. The 1970s marked the start of the most important beach law movement in recent times, with the intervention of state government advocates in access disputes on behalf of the public. As one Washington state wag noted, unimpeded beach access became known, along with mayonnaise on hamburgers, as a West Coast cultural phenomenon. Where California led, Florida and Massachusetts and Texas followed. States all over the country were soon offering the public thick directories of access routes, often paid for by matching funds from the federal government. By the late 1980s, the focus had shifted to fees. Nine states kept their beach free: Hawaii, Maryland, Alaska, Georgia, Mississippi, the Carolinas, Virginia and Washington. Most beaches in Alabama, Delaware, Louisiana, Massachusetts, New Jersey and Rhode Island charged something, and all of those beaches available to the public in New York and Connecticut did. Typically these charges were $1 to $2, and sometimes one fee covered a whole carload of beachgoers. In New Jersey, local governments and homeowner groups charged $5 to $8. Those fees were successfully challenged by the state as a back-door form of exclusion. Once again, property owners lost. SETBACKS ON THE MARCH Not that there haven’t been setbacks in the march of the great unwashed to the sea. One of the most significant was the 1987 Nollan case, a setback for California’s Coastal Commission in the Supreme Court. Even the commission’s backers had to admit that its wheeling and dealing was becoming creative, and in the case of James and Marilyn Nollan, the commission proposed that as a condition to their getting a building permit, they had to give up a swath of their backyard to provide public access to the beach. Without compensation. That triggered the prohibition against government takings since what was being taken was not land that belonged to the public, but access to it. Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Nollan is scant psychic compensation for a century-plus of cases in which people were sold property with the promise of an exclusive slice of the Atlantic or the Pacific, only to find themselves trumped by the public trust doctrine. “Of course they’re angry,” Alexander says of the Greenwich residents. “They just found out they bought the Brooklyn Bridge.”

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