Beach
Access Protected by the First Amendment
Leydon v. Town of Greenwich, 257 Conn. 318 (2001).
David
N. Harris, Jr., 3L
The third round of the highly publicized legal
battle over public access to Connecticut beaches has been decided
in favor of the public. The Connecticut Supreme Court affirmed
the Connecticut Appellate Court decision that a Greenwich ordinance
restricting access to a municipally owned park was unenforceable.
The challenged ordinance allowed only town residents access
to beach-park areas. But, unlike the Appellate decision which
relied heavily on the citizens’ right to use the beach
under the Public Trust Doctrine, the Connecticut Supreme Court
affirmed the decision on the federal and state constitutional
principles of the First Amendment.
Background
In 1995, Brenden Leyden, a Connecticut resident, filed suit
after being denied access to the municipally-held park known
as Greenwich Point. Leyden wanted to jog along the beach area
of the park, but was turned away from the park because a town
ordinance denied access to nonresidents. Pursuant to the ordinance,
a nonresident may only visit the beach when accompanied by a
town resident. Leydon subsequently filed suit, arguing that
the park and beach were a traditional public forum open to all
citizens. He also argued that under the public trust doctrine,
the lands were held by the state in trust for use by citizens
of the state, not just for use by town residents.
The town argued that Leydon's desire to jog along the beach
was not the type of expressive activity protected by the laws
regulating a traditional public forum.1 The town argued further that the Connecticut State Legislature
abolished the state common-law doctrine of public trust by a
special act in 1919 which allowed the town to "establish,
maintain and conduct public parks . . . [and] bathing beaches
. . . for the use of the inhabitants of [the] town."2
The trial court upheld the ordinance in 1998, disagreeing with
Leydon's contention that it improperly denied nonresidents access
to the beach.3
The Connecticut Appellate Court reversed the decision finding
that the ordinance violated the public trust doctrine, pursuant
to which the state holds lands under tidal and navigable waterways
in trust for the use by all state citizens. Relying on over
100 years of case law, the court noted that Connecticut has
held its wet sand beach areas open to the public for fishing,
recreation, and commerce activities.
The Connecticut Supreme Court agreed with the Appellate Court
decision that state residents may have access to the municipal
park and beach. However, the Connecticut Supreme Court chose
not to address this dispute based on the public trust doctrine
but rather focused almost exclusively on the First Amendment
argument that the beach was a traditional public forum. The
Court decided that nonresident access to the beach was protected
by the right of freedom of expression given to all citizens.
Beach Access Protected By Public Forum Law
Under freedom of expression protections provided by the First
Amendment and the Connecticut State Constitution, citizens are
allowed to freely gather and conduct activities such as political
debate and recreation. A “traditional public forum”
is a place where the government customarily allows assembly
and free debate of ideas, and includes areas such as streets
and parks where the government holds title to the land but allows
these areas to be used by its citizens.4 The United
States Supreme Court has held that the government may only limit
expression in these areas based on time, place, and manner of
the expression but not its content. The regulation must not
restrict specific types of expression and must be made so specific
as to help further an important governmental interest.5
In other words, the government must have some very important
reason, like public safety, in order to limit the use of these
public areas.
The Connecticut Supreme Court found Greenwich Point to be a
traditional public forum because it had the characteristics
of a public park. Several of the characteristics enumerated
by the Court were the presence of shelters, ponds, a marina,
a parking lot, and picnic areas.6 The Court found
that the ordinance restricting access to only town residents
violated the rights of nonresidents to participate in expressive
activities, and that the town failed to show why the ordinance
protected an important town interest.
Conclusion
Although the Connecticut Supreme Court did not affirm the Appellate
Court's holding based on the public trust doctrine, the end
result was to allow access by nonresidents to the municipal
park and beach, rendering the town ordinance unenforceable.
The town's leaders were advised that because the Connecticut
Supreme Court determined the ordinance violated the state constitution,
a favorable ruling probably would not be forthcoming and declined
to appeal the decision.7
ENDNOTES
1. Leydon v. Greenwich, 257 Conn. 318, 321 (2001).
2. 18 Spec. Acts 103, No. 124 (1919).
3. Leydon at 321.
4. Hague v. CIO, 703 U.S. 496, 515 (1939).
5. Perry Educational Assn v. Perry Local Educators’ Assn,
460 U.S. 37, 45 (1983).
6. Leydon at 326.
7. Greenwich Ends a Battle to Bar Its Beaches, N.Y. Times, Aug.
31, 2001, B2.
