SCUBA divers are safe from the NIMBYs in Rockport for now, thanks to a decision by three Judges of the First Circuit Court of Appeals
Law360 shares the good news that three Judges in the First Circuit Court of Appeals have affirmed the Federal District Court's dismissal of claims by neighbors of Back Beach in Rockport. The NIMBYs sued the Town of Rockport over its failure to prevent scuba divers from using public parking spaces and other public facilities when scuba diving from the public Back Beach in town.
The NIMBYs complain that they feel unsafe in their homes owing to this use of these public spaces. They alleged that the Town of Rockport violated their constitutional rights by not enforcing certain town ordinances on Back Beach in the same way those ordinances are enforced elsewhere in Town. The problem with that suggestion, the Judges point out, is that the NIMBYs provided no evidence to support their allegation and, in fact, their reference to certain things unique about Back Beach, like the availability of parking and public rest rooms, actually undercuts their argument.
I've been diving at Back Beach. I appreciate the availability of public parking which is so rare on the Massachusetts coast. And I also appreciate the public restrooms after diving. I've never been nude there and I've never made any noise different from that made by the others enjoying the public beach. And I always patronize a local business while I'm in Rockport. I hope the Town will continue to welcome divers for years to come as it has for many years in the past.
Sadly I doubt this is the last chapter in the NIMBYs' long fight against the divers.
There's nothing wrong with not wanting the hustle and bustle that comes with living next to a public beach but there is something wrong with trying to make a beach less public after you choose to live next to it.
"The availability of public parking, which the committee acknowledges makes 'access easier for strangers,' differentiates Back Beach from the Town's other public beaches in a manner relevant to the complaint's central allegation that the Town fails to adequately enforce regulations against divers at Back Beach," the panel said.