Waites Wharf, Lower Thames

NEWPORT - The recent public access victory regarding Scott's Wharf has created new hope for waterfront access advocates. With many access points lost through the years and many more up for grabs, Newport This Week takes a look at the current hot spots, and how the playing field has suddenly been leveled.

In the early 1980s, a fight began brewing between Newport Realty and the City of Newport over who owned access rights leading from America's Cup Boulevard, starting next to what is now the Smokehouse Café, down Scott's Wharf, cutting over to North Commercial Wharf, and down to the Newport Harbor. Newport Realty claimed that historical deeds – transferred, sold and amended several times over the years, clearly gave access to the family and descendants of the property owners, and not the public. In 2002, a Superior Court judge agreed. Less than a month ago, however, the Rhode Island Supreme Court overturned that decision, ruling in favor of the City of Newport. Or, to put it another way – in favor of you, the public.

The Supreme Court's decision set an important precedent along the way, ruling that the "Attorney General is vested with the authority to maintain suits seeking redress of public wrong." Attorney General Lynch was not the first AG to get involved in this fight, but he pushed it the farthest. Amid grumblings about what the AG's Office does and does not have the right to get involved in, Lynch brought the case before the Supreme Court, and in the process clearly defined the scope of the AG Office's oversight.

Leveling the field

It was the Scott's Wharf fight that, in its infancy, led to the formation of Friends of the Waterfront (FoW) in 1982, a local non-profit group now 300 members strong whose primary mission is to identify, maximize and preserve public access points to and along the Newport waterfront. While the Supreme Court decision was a victory for the public, the Attorney General's Office, and the City of Newport, it stands as a defining moment for FoW.

The precedent set by the Supreme Court's decision is a precedent for FoW – it means that they no longer need to feel like David fighting Goliath. Assuming FoW believes it is in the right in all of the arguments it has presented to date, then members must also must believe they will have the Attorney General on their side. And that immediately makes them not just a legitimate contender in their own eyes, but a formidable opponent.

Your constitutional right

One of the strongest arguments FoW has on its side comes not just from historical deeds and evidence of public use, but from Article I, section 17 of the Rhode Island Constitution, which states, "The people shall continue to enjoy and freely exercise all the privileges of the shore ... including but not limited to passage along the shore." Passage along the shore applies to any area of shoreline below the mean high water mark, which means when the tide recedes, the public can pass freely along any ground formerly covered by water.

In order to walk around the waterfront, however, one needs to access it first. And while there appears to be no shortage of areas where one can access the waterfront, many have disappeared over the years, due to both aggressive commercial land grabs and what is known as "creep," the slow takeover of public land by neighbors who purposely and even innocently extend their property lines a foot here, a foot there, all under the guise of beautifying or defining property. Most problematic are those who extend their property out beyond the high water mark, building concrete and steel retaining walls, backfilling with earth, and building atop the fill. This is not always done with negative intentions and can even result in functional improvements, but all too often it costs the public bits and pieces of an important constitutional right.

Harbor Walk

If the Scott's Wharf ruling can be considered the defining moment for Friends of the Waterfront, then Harbor Walk will be its crowning achievement. Harbor Walk North and South is an attempt by Friends of the Waterfront to provide the ability for the public to walk along the entire waterfront, from the northern end of the historic Point section of Newport, all the way down to Stone Pier at King Park, in the harbor's southern end.

While property development throughout the years has made several wharf sections of the waterfront inaccessible because of private property extending to or beyond the high water mark, FoW has been working on gaining public easements across many of those properties, and fighting claims by others who attempt to take access areas FoW believes belong to the public.

There are many such claims and areas of contention, and not all are along the Harbor Walk. Here is a brief synopsis of five of the most talked-about local water access issues:

Washington Street Extension

Just beyond the northern-most end of Washington Street in the Point section – just on the other side of the Pell Bridge – sits an unassuming stretch of lawn between Newport Harbor and two waterfront homes. The properties are owned by two families, the Reagans and the Moys, who petitioned the City for permission to maintain the dead-end stretch of road known as Washington Street Extension. The council voted in favor of the request. Soon after, however, the families covered the roadway with soil, then grass. When citizens complained, the city rescinded its agreement, causing the families to file suit. Claiming the city abandoned the street, they have asked for ownership and damages.

"The abutters were allowed to maintain the property, but they were never given ownership," contends councilman Stephen Waluk. "The changes they made were done without the approval of the city."

Some residents have asked that benches and signs be added to the property to identify it as public. Others have asked that the grass be removed.

"It's within your right to go down there and enjoy it," said Waluk. "I wish more people would go and do that."

Attorney Joe DeAngelis, representing the Reagans and Moys, declined comment.

Status: The property is currently back in city hands, according to Waluk, however the suit is still pending.

Scott's Wharf, a defining moment

After a 25 year legal battle with the City, State, and Friends of the Waterfront, the Rhode Island Supreme Court ruled in favor of public access and against Newport Realty. After the ruling by the Supreme Court, in which they upheld the right of the Attorney General's Office to involve itself in such local matters, Tim O'Reilly, then-president and CEO of Newport Realty's parent company, Newport Harbor Corp, was quoted as saying, "I don't think some of the justices paid enough attention. They plain and simple didn't get it." O'Reilly retired a few weeks later.

Status: Supreme Court ruling in favor of public access.

Brown and Howard Wharf, Lower Thames

Another lengthy waterfront battle, the Brown & Howard condominium project has been fought for 18 years. When the Brown & Howard Wharf Company, owned by local developer Joseph Paolino, agreed in 1989 to add plans for a public right-of-way and a public dinghy dock, the city relented, as did CRMC, and many thought the fight was over. A year later, however, FoW filed an appeal based on the contention that the southern-most unit would be too close to the water. FoW was displeased that while they had two independent access points "to" the water, they did not have access "along" it.

In 2004, the lawsuit was dismissed due to a five year period of inaction. As long as updated building and sewer plans reflecting changes in state laws were presented to the city, Paolino could move forward, the City said. FoW agreed not to fight the decision, but asked Paolino lawyer Turner Scott to discuss their request for public access along the front of the condominium complex.

Status: According to Newport's Director of Zoning, Paige Bronk, Brown & Howard submitted all required paperwork and has all appropriate permits for construction. Current construction is preparatory and subsurface, and no violations or problems have been reported.

Waites Wharf, Lower Thames

The West Wind Marina office began, some say, as a temporary outdoor refrigerator. From there it was upgraded to a storage shed, and eventually a marina office for West Wind Marina, built in 1996. Regardless of its use, however, opponents claim it is located squarely on a public right-of-way, the city street known as Waites Wharf. Residents want the structure removed entirely from public property. Harbor Realty, the owners, say that will cost roughly $21,000. On March 2, 2005, all parties had an opportunity to state their case before a public hearing with CRMC.

Status: A ruling is currently under review with CRMC. They were unable to speculate on a date for the decision.

Marine Avenue, Cliff Walk

While this fight takes place away from the feisty battles along the harborfront, it is no less contentious. While many residents claim this dirt road adjacent to Ruggles Avenue has provided public access to the Cliff Walk and beach for residents going as far back as colonial times, abutters Decof/Davis and Goldberg have, over time, landscaped the area with shrubs and placed large boulders and blocks to deter parking and provide privacy.

City Solicitor Joe Nicholson said, "CRMC has been requested to hold public hearings to determine whether it should be considered a public right-of-way," adding, "From what I know, the issue has been forwarded to a subcommittee within CRMC."

Status: According to CRMC Public Education and Information Coordinator, Laura Ricketson, a meeting on August 23rd will determine if the right-of-way subcommittee will begin a title search on the Marine Avenue property.

Meanwhile, the Attorney General's Office told Newport This Week it is currently reviewing the Washington Street Extension and Marine Avenue complaints, adding that they will look at any other issues where they believe the rights of the public are being violated. If FoW is correct in its arguments, and the AG is true to his word, then Newporters could be in for public access fights of Goliath proportions.

Friends of the Waterfront

Roughly 300 members and looking for more.

Visit newportwaterfront.org to learn more or contact FoW President Martin Douglas if you feel you can help their cause

FoW operates three websites in support of public access:

Cliffwalk.com

NewportHarborWalk.com

TenMileDrive.com

By Peter Dodd With Reports from Kevin Curley