Limiting Public Access

(from Maine Townsman, June 1990)
by Jo Josephson, Assistant Editor

Can a municipality distinguish non-residents from residents when it comes to access to beaches, parks, and other municipally-owned or acquired recreation land?

Can it distinguish between the fees it charges? Can it go as far as precluding non-residents from entry?

These are questions often asked of the Maine Municipal Association's legal staff.

"Unfortunately, the law is not entirely settled in this area," says MMA Senior Staff Attorney Richard Flewelling.

Federal or State Funds

When it comes to programs that are state or federally funded, it is "generally impermissible" to distinguish between residents and non-residents, says Flewelling.

This prohibition is usually spelled out in the "strings attached" section of the funding guidelines.

For example, among the "strings" spelled out in the guidelines published by the federal Land and Water Conservation Fund, each recipient must sign a standard agreement or contract which binds them to operating the facility "to allow use by the general public without discrimination..."

Local Funds

Whether municipalities can discriminate against non-residents is "less clear" when the land is purchased with local revenues, says Flewelling.

He says it is generally okay to charge non-residents a higher fee than residents because, in theory, the residents have already paid part of the cost through local taxes.

However, it is doubtful whether non-residents can be excluded entirely, says Flewelling.

There is no reported Maine case on this precise question, but the primary legal issue would be the constitutional guarantee of "Equal Protection" of the law.

Equal Protection stands for the proposition that government cannot discriminate among classes of people without a "rational" basis for doing so, he explains.

In reviewing complaints of unlawful discrimination, the courts ordinarily consider both the public objective and the method used to accomplish the objective, says Flewelling.

For example, since shellfish are a finite resource and their conservation is considered a legitimate governmental objective, a shellfish ordinance may limit the number of licenses issued and may distinguish between resident and non-resident license fees.

Similarly, restricting access to a beach because of health and safety concerns or overcrowding may be an acceptable goal, he says.

But whether excluding non-residents while permitting unlimited access by residents is a reasonable means of achieving this objective is, at best, uncertain.

If you are concerned with overcrowding or overutilization, he advises that you limit the number of users, period, with no reference to residency or initiate a fee which has the same affect.

Flewelling points out that there are cases where restriction to residents may hold such as where a town has acquired a facility through a bequest or charitable donation.

If the express intent of the donor was to limit the use to residents, the consideration may be enforced as a "trust," says Flewelling, unless the discrimination is based on race, creed, color, etc.

Flewelling notes that the law is different for coastal areas. As followers of the Moody Beach case in Wells know, the "intertidal zone" is impressed with a limited public trust by the Colonial Ordinances.

"Any town owning coastal beach would have a very difficult time excluding non-residents, at least for fishing, fowling and navigation," says Flewelling.