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Public Treasure on Private Land. RHODE ISLAND CLIFF WALK. A diverse coalition works to save a seaside path threatened by commercial development

By Catherine FosterStaff writer of The Christian Science Monitor / March 31, 1989



NARRAGANSETT, R.I.

Even on a raw early spring day, this wild and windswept pathway along the cliffs overlooking Narragansett Bay provides an expansive view of the water, the tidal pools, and the ruins of an old carriage house in a field. And it has quite a history. People have walked this 3,200-foot long path since the Civil War. Travel brochures dating from the turn of the century boast of its beauty. What's unusual about the pathway is that it's a public way over private land.

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But it now may be closed to the public. A Rhode Island development company, the Downing Corp., has been trying for three years to build an 80-unit luxury condominium complex on the 42-acre oceanfront parcel known as Black Point. Whether Downing can stop public access will be decided on April 11 by the Coastal Resources Management Council, a statewide zoning board for coastal areas, which has been hearing testimony on the issue since April 1987.

Since the development plans became public, a coalition of groups as diverse as the Federated Rhode Island Sportsman's Clubs, Citizens Against Reckless Expansion, and the Conservation Law Foundation of Boston has been trying to stop them. The Rhode Island attorney general's office is throwing its weight behind the pro-path contingent.

John Silvestri, owner of a summer home in the area, says, ``I've taken my kids here for a long time, and I'd like them to be able to take their kids here too. I'd like to save it for them.''

But there's more to this than just a developer/environmental tussle over land, says Michael Rubin, an environmental advocate for Jim O'Neil, attorney general of Rhode Island. This ocean cliff walk is only one of two like it in the country. (The other is across the bay, the Newport Cliff Walk, which marches right over the back lawns of some of the most elegant mansions in the country.) The case is also unusual because this is the second time in this century that citizens have attempted to define the path's legal standing in the courts.

As the story goes, in 1928, Ferda Zorn Moren of Louisville, Ky., bought property along Black Point, built her ``cottage'' (actually a mansion), laid an expensive lawn, and fenced off the path, says Mr. Rubin, acting as unofficial historian. She did allow walkers to use the seaweed-covered rocks below. But Candace Stone and Emily Gibson, who spent their summers in a shack down the beach weren't fazed at all by the stone wall and barbed wire fence Mrs. Moren erected. They just leaped over and continued their daily walks. Moren got a temporary restraining order and brought the case to a hearing.

``She figured what better target for my test case than to go after these two Bohemian women who are social outcasts, who have no money, who live in a shack, who are considered weird by everybody,'' says Rubin. ``Little did she know that the women were prot'eg'es and guests of the Hazard family.'' That family, although wealthy, was progressive, he says, to the point of starting the first profit-sharing program on this continent at their mill in Syracuse, N.Y. The Hazards gave the two women legal help and money.

At the hearings, according to a 1928 article in the Providence Evening Bulletin, Judge Herbert L. Carpenter found that people had walked there for 70 years and that it was a well-delineated path. He denied Moren the preliminary injunction and she dropped the case. And use of the path has continued, by nature lovers, owners of summer cottages, marine biology students at nearby high schools and the university, and fishermen. Allan Anderson, a resident of Narragansett for 13 years, has walked the path with friends to go surf-fishing at night. ``The [foot] traffic had made such a distinct path that all along here just with our neck lights we could find our way with no problem. And we were carrying equipment, too,'' he says.

In researching the case, the attorney general's office recorded testimony from elderly residents who remembered using the path. One man, the late Oliver Hazard Stedman, recalled people promenading a section of the path farther north. ``The lawn came right down in some places and they would sit right along in some places and people had built walls there and they sat on the walls sometimes.''

Richard Baccari, president of the Downing Corp., says it's a different world these days. People are driving four-wheel pickups on the cliffs, sunbathing nude, and defacing the rocks with spraypainted profanity, he says. The corporation offered a compromise position that would allow dawn-to-dusk access to 2,000 feet of the trail, with policing to be done by the state parks department. If rules and regulations were broken, access would be withdrawn.

``You just can't have people declaring property rights just because nobody stopped them for years. They think that automatically creates a public right of way. If that were the case, then all the trails that we come across in the forest could be declared public,'' says Mr. Baccari.

Peter Shelley, senior attorney with the Conservation Law Foundation, says, ``It's an old, old legal principle that's been applied in a contemporary setting. If the public has openly used a piece of land and the owner has acted in a way that implies an acceptance of the public's use of land, over time the public acquires a legal right to use it.''