Court 'unable to answer' crucial issue in coastal erosion bill

By State House News Service

BOSTON -- The state's highest court today said it was unable to offer a conclusive opinion to the Senate on whether property rights and ocean erosion legislation pending on Beacon Hill complies with the state Declaration of Rights and the U.S. Constitution.

The Senate in April asked the court for its opinion on a Rep. Frank Smizik bill (H 753) that cleared the Environment Committee in March and is pending before the Senate Rules Committee.

The bill pertains to preserving public trust rights in land affected by ocean erosion and affects the ownership of land where rising sea level, storms and other natural occurrences have caused the movement of a barrier beach into an area that was previously occupied by the bottom of a great pond or onto any other public land.

"We are unable to answer the question as it is presented because the meaning of some of the significant terms and concepts in the bill are unclear to us, the question itself is quite broad and not susceptible to a single yes or no answer, and a complete answer may depend on facts and circumstances we do not have before us," the court wrote, later adding that the question posed to the court by the Senate was "like the bill itself . . . not entirely clear."

The justices said it was "conceivable" that the bill's passage "would turn an existing barrier beach that is now privately owned into public land if it is located in what was, at some undefined point in the past, 'an area which was previously occupied by the bottom of any Great Pond.' We make this observation to underscore the potential significance of the proposed change and its potential effect on existing and future property rights."

The court said it had discussed great ponds in many legal cases and wrote that "a pond that exceeds ten acres in its natural state is a great pond."

In its order requesting the advisory opinion, the Senate in April stated that "some decision must be made" on the bill before the end of formal sessions on July 31.

The 13-page advisory opinion was issued by all seven justices of the SJC.

Max Lifton