Rye beach flareup results in moratorium on construction

Yellow-tape incident creates town-state dispute; opens old wounds

Jack Driscoll

Through the years contention over beachfront rights has risen and fallen like the tides. Right now it is at high tide.

A flareup the second week of August has rekindled tensions between the town and the state as well as beachgoers and beachfront owners. As a result the Board of Selectmen voted to hold off until September 15 or later any beachfront property construction that requires use of access roadways, pending a site walk and meeting among town and Department of Environment Safety (DES) officials.

Mother Nature played a role in this latest episode, the first major flareup since the 1994-2000 litigation proceedings that involved the state Supreme and Superior courts. First, there was the late Spring storm that raised so much coastline havoc that homeowners are still trying to get wall and patio repairs done. Second, there was the perfect beach day that drove hundreds to Rye beaches on Saturday, Aug. 11.

Those who entered the sands via the Cable Road Extension and turned left noticed an area jutting out from the rocks cordoned off by yellow construction tape.  As the day went on, the beach became wall-to-wall bathers, and anger arose over the sectioned-off area. Police were called and halted the construction.

A week later the property owner, Dyanne Tosi, of 74 Old Beach Road, explained the predicament she found herself in and apologized three times at a Selectmen's meeting. "It was a terrible mistake in judgment," she told the Board of Selectmen.

In short, she contended that she had a DES construction permit for the month of June, but the contractor was delayed, so she got extensions by phone and by email.  The problem is that apparently the town and the Rye Conservation Commission weren't made aware of the extensions.

Construction that involved bringing in large boulders began on a rainy day, Friday, Aug. 10, so no one particularly noticed, but the work ran into Saturday--when lots of folks noticed as they streamed onto the beach, competing for blanket space.

Selectman Joe Mills also noticed.  The beachfront-vs.-beachgoers struggle has been a hot-button issue for him for many years, and he carried the discussion at the Aug. 20 board meeting, imposing a ban on work till Sept. 15, calling for a meeting with DES and clamping down on use of beach right-of-ways by requiring that contractors get approval from the Selectmen to off-load equipment, fill or rocks when engaged in work on property along the beach.

Under state law Cable Road Extension and all other beach access right-of-ways come under the jurisdiction of the local community.  The Cable Road extension is considered a Class VI road.

Less precise is where private ownership ends on the beach.  The 1999 Supreme Court language, in what has become known as the Purdie Case and which resulted in a settlement among parties, stated that "New Hampshire common law establishes the high water mark at the level of mean high tide" as the demarcation point. Some would say it is the area where the transition occurs between wet and dry sand; others say that would impinge on beachgoer rights.

In effect, the Consent Decree of 2000 required some hard swallowing and some bad feelings on both sides. Mills, who is in the last year of his present term, is still dissatisfied, stating the settlement "did not conclusively determine ownership of the dry sand."  Further, he claims, some beachfront owners "are planting sea grass in the sand."  Sea grass has sharp edges, not recommended for walking or lying on.

The next round in this beach battle will be between the Town of Rye and the State of New Hampshire.  

September, 2007