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Closing beaches to nonresidents is illegal

The Connecticut Supreme Court settled the issue in a unanimous decision in the summer of 2001: Connecticut municipalities cannot limit beach attendance to town residents.

Remember the unanimous part. It was not a close call.

"Today's decision effectively opens all Connecticut town parks and beaches to nonresidents," the legal director of the American Civil Liberties Union of Connecticut said at the time.

The ACLU-CT had filed a brief in support of the case as it went to the Supreme Court.

Surely a pandemic 19 years later doesn't change this settled law, just like it doesn't permit municipal leaders to break other laws at will or discriminate in other unlawful ways.

And yet a lot of Connecticut shoreline towns, as the summer of coronavirus unfolds, are doing just that: closing their beaches to nonresidents in the name of limiting crowds and promoting social distancing.

They are illegally limiting this recreational resource at a time when it will be in great demand, after a long lockdown and spring filled with tension and anxiety. Those who live inland are, these town leaders suggest, out of luck.

Here in eastern Connecticut, required residency is now the policy at public beaches in East Lyme, Waterford and the City of Groton, at least on weekends and holidays at the city's Eastern Point Beach.

East Lyme First Selectman Mark Nickerson was frank about breaking the law, saying if someone takes the town to court, he'd look a judge in the eye and say the town did it for the right reasons.

Does he really think it is OK to break the law just because you think you have the right reasons? Where would that philosophy lead us?

Of course there are also communities following the law, allowing nonresidents on beaches and still planning to restrict the number of people, to allow for social distancing.

Access in those communities is essentially a fair, first-come, first-served system of allocation, until safe capacity is reached and the gates must close.

This is also official policy at state beaches.

It puzzles me why Gov. Ned Lamont, who has presided over a reasonable and legal plan for keeping state beaches safe, has not insisted that towns in his state do the same.

His counterpart in New Jersey, Gov. Phil Murphy, wisely predicting the discrimination that lay ahead, issued an edict in early May that municipalities in his state could not limit beach attendance to residents.

Since the ACLU-CT was active in the 2001 case before the Supreme Court, I reached out to the organization to see whether the widespread disregard of the law this summer might prompt a new legal complaint.

Executive Director David McGuire said the organization is monitoring the situation. It also is directly involved in a pressing pandemic issue on a front burner, protecting incarcerated people from COVID-19, and resources are limited.

"We are following this very closely, and we want to see how these proposals will be enforced," McGuire said. "It is important when government officials try to keep their communities safe, they do it in accordance with the Constitution."

"We hope that, as the situation evolves, towns and cities will understand they shouldn't and can't (exclude nonresidents)."

That would be great.

But I suspect they may need a big nudge, hopefully from the governor, or, at last resort, from a judge, maybe one who could take the challenge of staring down the East Lyme first selectman.

This is the opinion of David Collins.

d.collins@theday.com

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