STATE HOUSE, BOSTON, APRIL 13, 2016…..For the first time in more than a decade, the Senate has sought the opinion of the Supreme Judicial Court asking the highest level of the judiciary whether an erosion bill filed by a Brookline Democrat meets constitutional muster.
In an order adopted by the Senate on Wednesday, the body said it had “grave doubt” over whether the bill (H 753) complies with the state and federal constitutions.
Rep. Frank Smizik’s bill would specify that public beaches shifting as a result of coastal erosion, sea-level rise or the drying up of “great ponds” remains in public ownership.
A bill summary provided by his office explains that the bill would declare that if a great pond – defined by the state as any pond or lake that is more than 10 acres in its natural state – dries up the new land is still public. According to Smizik, the attorney general and others have said the bill is “simply a restatement of the current law.”
Sen. Anne Gobi, a Spencer Democrat and Senate chairwoman of the environment committee, said opponents of the bill are concerned it could be interpreted as a land taking.
The state constitution requires that private property cannot be taken without consent of the individual or a “representative body of the people,” and whenever property is appropriated for public use the owner must receive “a reasonable compensation.”
Smizik’s testimony to the Committee on Environment, Natural Resources and Agriculture says that shifting ocean conditions and climate change have caused changes to coastal and inland shorelines.
“Private beach owners claim the shifting of the beaches do not affect their ownership. However, these new beaches are resting on top of public land,” Smizik said in written testimony. Smizik said property owners around great ponds that are drying up “believe their ownership of the beach is unaffected by its landward shift.”
A list of great ponds maintained by the state shows they are situated both inland and near the coast.
Senate Clerk William Welch told the News Service it is the first time the Senate has requested the high court’s opinion since 2005 and the court should receive the inquiry by Friday at the latest.
Last year the House asked the Supreme Judicial Court whether changes in tax law the Senate made to the state budget bill comported with the constitution. Unlike the House, which affixes a Kelly green ribbon in its requests for a court opinion, the Senate uses a blue ribbon, according to Welch.
Smizik’s bill was reported out of the Committee on Environment, Natural Resources and Agriculture on March 10 and sent to the Senate Rules Committee.
Copyright 2016 State House News Service