Once the law of littoral rights is correctly sorted out, the Preservation Act should be regarded, presumptively, as a taking of littoral rights.
The littoral rights at issue in Stop the Beach Renourishment include the ability of individuals to gain access to the beach from their own property and to have the right of an unobstructed view over the beach to the water beyond.
If littoral rights were just a creature of the state, such that they could be created or cancelled at will, then the entire structure of littoral rights, indeed all property rights, would come tumbling down.
1987), that littoral rights include vested rights "to have the property's contact with the water remain intact," and "to receive accretions and relictions," and in Belvedere Development Corporation v.
As a result, at least facially, there is no material or substantial impairment of these littoral rights under the act.
Furthermore, unlike in Belvedere, when the owners retained no other property, STBR's members still had both their upland land and the ability to exercise their associated littoral rights to access, use, and view.
By interpreting the scope of the private littoral rights without balancing them against the beneficial requirements of the original grant in the Massachusetts Ordinance, courts in New England have created the possibility for the mass abdication of the states' obligation.
Even in Massachusetts, where the original change in the common law of public trust and littoral rights originated,(197) the question of what was granted and what was received in the Colonial Ordinance is far from resolved.