Robert Thompson

Document Type



While not all Americans enjoy going to the beach, millions and millions of people do. Beaches offer the possibility of providing so many satisfying experiences that they are the most popular vacation destination in the United States. While many authors place the start of this passion for coastal visitation at the beginning of the nineteenth century when developments in transportation technologies and rising incomes made vacationing popular, attractive beaches have actually been used for recreation and inspiration by the local population for much longer. Clearly, though, beach visitation and beach cottage ownership mushroomed with the rapid growth of automobile ownership and middleclass incomes in the 1920s, and then again in the post-World War II years. But in the 1960s and 1970s, as the coastlines were built up and became more crowded, beaches also started to get increasingly closed off. This closing off of beaches to the general public led to the beach access movement, which has tried to protect and expand the public’s ability to gain physical access to the shoreline. This Article argues that the beach access movement has an overly limited conception of access. To fully access the numerous experiential values offered by the beach, the public needs twenty-four hour access. While one does not need to literally stay awake for twenty-four hours, one needs to be able to see the sun rise, to watch the changing of the tides, to see the sun set, to marvel at the bright stars over the dark ocean, and to hear and smell the ocean while lying in bed. To fully access the shoreline’s experiential values, one needs to have the time to explore and soak up experiences. The general public is losing this twenty-four hour access as rents on overnight accommodation rapidly increase, and the prices paid for formerly affordable ownership options are driven ever higher by wealthier Americans and foreign tourists. At first glance, one might think that this type of overnight access is nice, but not of enough importance to require government attention. However, Part II, Section C of this Article presents multiple arguments as to why this access must be protected in order to promote the public welfare and to recapture public benefits. This Article argues that affordable twenty-four hour access to the experiential values of coastal areas should be protected and preserved, and that state and local government need to take steps to ensure that twenty-four hour access to the coast, a cherished public resource, is available to as many Americans as possible, not just to the wealthy. To make this argument, this Article briefly recounts the modern history of recreational coastal use: the growth of coastal visitation and access from the first half of the nineteenth century up through the 1960s, the closing of beaches in the 1960s and 1970s in reaction to growing crowds, the development of the beach access movement and coastal access case law, and the continuing loss of affordable accommodations on or near the beach. The Article then puts forth a threepart argument as to why the government should intervene in the market to protect and preserve affordable twenty-four hour access. The first part deals with the government’s obligation to promote the general welfare and uses recent work on the biophilia hypothesis to show how twenty-four hour coastal access promotes the public good. The second part of this argument shows how the value of coastal property is actually attributable to positive externalities that emanate from a public resource, that is, the ocean. The third part argues that government should regulate coastal property in a manner that redirects the benefits of these positive externalities to the broader public. Still, even if one believes that the government should regulate property to preserve affordable twenty-four hour access, one must also determine whether attempts by the government to preserve this access can withstand legal challenges. Thus, the Article looks at how the law concerning rent control, eviction controls, price controls, and takings would apply to state statutes or local ordinances that attempt to protect or promote twenty-four hour coastal access using these legal tools. While this Article is concerned with the affordability of overnight coastal accommodations throughout the United States, it utilizes the history and circumstances of Roy Carpenter’s Beach (Carpenter’s Beach) in Rhode Island to provide a detailed examination of this problem. In many ways, Carpenter’s Beach represents a high point of affordable twenty-four hour access. Carpenter’s Beach consists of 426, tightly packed “cottages” of approximately 400 square feet each that rest on a low-lying, glacial outwash plain that has been slowly washing into the Block Island Sound since the end of the last ice age. This beachside community started in the 1930s as a place where a family could rent a plot of land for the summer to pitch a tent. As will be discussed more fully below, tents slowly evolved into modest cottages. What I want to stress here, though, is that any family with access to a car, enough money to pay a meager land rent, a tent or enough scrap lumber to build a cottage, and perhaps a high tolerance for crowded quarters, could have a home at the beach for the entire summer. This type of working stiff’s paradise, however, appears to have been a fleeting moment in the sun. As retirees and second home buyers have flocked to the coast (particularly in the last twenty years), real estate prices have skyrocketed, and cute cottages and ramshackle shacks alike have been replaced by typically larger and more luxurious houses. The surging value of real estate threatens to put an end to the affordable, beachside cottage camp and trailer park. Many local residents and visitors might be glad to see these collections of humble hovels go because they can be viewed as seaside eye sores or because residents might expect the community to derive more economic benefit from the wealthier residents and vacationers who would replace modest communities. While local governments might prefer the increased property tax revenue that comes with soaring coastal property values, local governments should not be allowed to ignore, or even promote, the loss of affordable beach access, because this would allow local governments to appropriate an unjust portion of the value of a public resource for itself by excluding a portion of the general public, that is, the less affluent. Even though Carpenter’s Beach will receive special attention, I want to stress that the affordability problem is neither confined to formerly inexpensive ownership options, like mobile homes and tiny cottages, nor to New England. For example, the California Coastal Act not only defines “public access” to include access to overnight accommodations, but states that “[l]ower cost visitor and recreational facilities shall be protected, encouraged, and, where feasible, provided.” However, the California Coastal Commission is specifically prohibited from setting room rates for coastal accommodations,8 and the California Coastal Act, as presently structured, has allowed the prices of overnight coastal accommodations to skyrocket. Indeed, affordable coastal accommodations in California are already scarce. According to the California Coastal Commission, barely ten percent of coastal accommodations cost less than $100 per night; thus, out of the 1600 RV parks, campsites, and hotels, the Commission only considers 134 to be low-cost.



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