Harwich beach at epicenter of battle over access rights

By Doug Fraser

dfraser@capecodonline.com

December 28, 2013

HARWICH PORT — The winter wind Friday was literally the polar opposite of summer, and the beach at the end of Bay View Road was crowded with nothing but empty pink lady slipper shells and a proliferation of signs shouting "Private Beach" to no one.

The privacy signs have been there for the past couple of years as a group of seven waterfront property owners asserted their right to have a private beach between two town beaches near the entrance to Wychmere Harbor.

They argue that they should be able to add a 150-foot stretch of sand deposited there since 1990 to their properties. When they filed what is normally a routine Land Court request last year to add the beach area from sand deposited by ocean currents to their existing parcel, the town filed an objection. An association of homeowners in the streets adjoining Bay View Road, known as the Friends of Harwich Beaches, asked to join the town's side.

The case continues in the state Land Court in Boston on Jan. 30.

"They started populating the beach with (the signs) about a year and a half ago, and they really proliferated before last summer," said Jan Kalicki whose extended family has owned a home in the Bay View area since 1921.

He claims that for more than 100 years, the beach was always open to the neighborhood, until new people from off-Cape started buying up waterfront property.

"The first thing they did was to start excluding people."

Kalicki said his late wife's great-great uncle deeded a 6-foot-wide right-of-way to the town so that people could go down and use the beach. In a sign posted at the entrance to that path, waterfront property owners now advise beachgoers that the public beach is only as wide as the right-of-way: 6 feet. The rest, the sign says, is private beach.

The town argues that a jetty built at public expense around 1885 and extended farther out into Nantucket Sound in 1937 to protect the entrance to Wychmere Harbor, trapped the eastward flow of sand that created new beach area. It cites a 2010 court case in which the Supreme Judicial Court decided that the public's Colonial-era rights to access tidal property did not end when the tidal area filled with sand.

The town is arguing that there needs to be some compensation for the loss of the public rights to access for fishing, fowling and navigation as the tidal area turned into beach.

"The ownership shouldn't go to them without some public benefit," said Harwich Selectman Ed McManus. "The public should have free access not just for the old Colonial reasons of fishing, fowling and navigation, but for recreational uses."

The case is now being negotiated in state Land Court, and state Attorney General Martha Coakley's office said recently that it wants to review all the evidence before deciding whether the state, too, could weigh in.

Waterfront property owners who live along Davis Lane said they have a right to a private beach because they paid a lot of money for that right.

"We're not bad people," said Ferris, who lives in Westwood, but has owned homes in Harwich for 15 years. The waterfront homeowners don't stop people from strolling on the beach and have invited many neighbors to use it, he said. But sometimes it gets too crowded, especially with people who are renting property in the neighborhood.

"We're all down there to relax with our families," Ferris said. "It's a private beach. ... We paid for this right. It is what it is."

Bob Nickerson, another waterfront owner, takes exception to the characterization that all those involved in the case are newcomers who couldn't appreciate that the beach was routinely used by all. He's sympathetic to the neighborhood, he said, because his family had been in the area since the late 1800s.

"My grandfather went to that beach because he knew people who owned the property," he said.

Nickerson has spent every summer on the beach even though his family didn't own waterfront property. He bought the property on Davis Lane recently, he said, because he could see the beach rights problem coming.

"With the price of housing, and as the beach becomes more of an asset and people are exercising their rights to privacy, and there's more people coming down here, it becomes contentious," he said. Still, if he let everyone use his 90-foot section of beach, it would become crowded pretty quickly, he said.

"Now they want full use and rights," Nickerson said about the neighborhood association and the town. "They say, 'You guys can own the land; we just want to use the beach.' Why should I pay millions of dollars (for waterfront property)?" he said.

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A shore thing

Public sands transcend private rights

January 08, 2014 2:00 AM

The notion that the beach is the exclusive province of the wealthy continues to be a matter of debate on Cape Cod. Consider the latest battlefront: Bay View Beach in Harwich, which ostensibly offers public access to a beach that is only as wide as the path that services it, which is to say, six feet across.

This two-yard stretch of beach is bracketed by a pair of "private beach" signs that leave little doubt concerning the notion that the public is in any way welcome to step off the beaten path.

The signs were reportedly placed there about a year ago at the behest of seven waterfront property owners who, according to other area property owners, recently turned their backs on a century of tradition that allowed other neighborhood residents to use the beach area to both the left and right of the narrow path of public sand.

All of this may have come and gone with the tide if it were not for the fact that the shifting sands of Harwich Port have, in the past 14 years, added some 150 feet of sand to the beach. Now, the seven property owners would like to lay claim to that additional frontage, which has come their way courtesy of a publicly funded jetty. And that is precisely why Massachusetts Attorney General Martha Coakley should join with the town and fight this land grab by a few wealthy property owners.

Harwich has filed an objection to the beachfront property owners' move in Land Court, stating that some compensation or easement is in order, given the potential loss of public access. Some, including Selectman Ed McManus, believe that there should be some element of public benefit.

Obviously, the question of public access must be balanced against private property rights. As several owners have pointed out, they have paid a great deal of money for their property, which has ostensibly included rights to private beachfront. Further, these property owners continue to pay more property taxes than those of us who lack such fortunate geographical positioning.

But public access to public resources is a sacred trust that should be inviolable. Inch by inch, the public has gradually lost control of area shorelines, with ever-increasing restrictions placed on the scope of access to the shores of Cape Cod. In most cases, this has had to do as much with the natural forces of erosion as it has the legal maneuvering of property owners.

Ironically, the Bayview Beach dispute focuses on a waxing rather than waning shore line. These property owners should not expect the public to stand by idly and allow them to take advantage of the town's investment in its collective future without some of the interest being allocated to all taxpayers.

In what may be an apocryphal story, many of the Indian tribes in what would eventually become the United States reportedly did not understand the European colonists' desire to own the land where the immigrants had settled, simply because the indigenous people believed that it was we who belonged to the land; not the other way around.

We hope that Harwich prevails in its drive to make the spoils of the shifting sands available to all of its residents, and not just the fortunate few.

The path of most resistance

In Harwich, a question of access threatens beach rights for all

By Mike Ross |

January 02, 2014

Source: Google maps. James Abundis/globe staff

Bayview Beach won’t show up on most maps. For over 100 years, it has sat just west of Wychmere Harbor in Harwich, tucked between Bank Street and Merkel beaches. Generations of vacationers — from the Van Burens (as in relatives to the eighth president) to the O’Neills (as in Tip, the speaker of the house) — have sprawled along it for summers on end.

And despite the fact that a public path has led residents to its sands for decades, a group of homeowners are now trying to prevent access.

This isn’t just some fight between the rich and the very rich. For one thing, Harwich ain’t Nantucket. It’s still a place where families across Massachusetts take that one-week vacation that they’ve been saving up for the entire year. But for those who will be returning this summer, it may not be the welcome place they remember.

Without getting into complex legal areas of coastal land use and colonial ordinances that glaze the eyes, here’s the gist of the fight: Massachusetts is among the few jurisdictions that define tidelands differently from virtually everywhere else in the free world. While most consider the public part of a beach to be from the high tide mark toward the sea, here, the line was moved farther seaward to the mean low tide mark. This was done in order to get the upland property owners of the time to build ports to engage in commerce.

What this means for you and me is less access to beaches.

These laws aren’t changing anytime soon, but within the various doctrines there remains some wiggle room, and lovers of Bayview Beach have some legal room to build a case. For one thing, there’s the public path directly to the beach. There’s also the history of nearby residents and visitors using Bayview for generations. And then there’s the jetty.

Shaped somewhat like a reclined seat, the jetty sits at the mouth of Wychmere Harbor, and was built by the state during the turn of the 20th century. The jetty allows for boats to navigate to and from the harbor. Without it, the mouth of the harbor would fill with sand, and it would revert back to the pond it once was. The jetty also creates something of a land windfall for the residents who live just to the west of it — along Bayview Beach. For those residents, the jetty’s placement has created hundreds of feet of new beachfront as a result of the collecting sand. The technical term for this land bonanza is “accretion,” but I just call it good fortune.

Instead of thanking their lucky stars that this public works project — paid for by public funds — has added precious waterfront land to their property, a collection of the owners are seeking to reserve the beach solely for their own use. One owner went so far as to erect mocked-up signs along the pathway declaring the beach private. They were ordered down by the town.

Another group of residents, called the Friends of Harwich Beaches, is commited to keeping Bayview open as it has been for over 100 years. They’ve hired a lawyer to plead their case. They’ve also sought the help of Attorney General Martha Coakley.

She should provide it. Their request is reasonable. They are not trying to turn the area into a tourist trap. They’re not looking to add snack bars, restrooms, parking, or waterslides. They merely want the exact same access they’ve had all along.

This isn’t a matter of concern only to a handful of Cape Cod vacationers. Public access to the ocean is a matter of ongoing concern throughout the Commonwealth, notwithstanding its antiquated laws. Consider the Boston HarborWalk, a coastal pathway that traces the edges of the Boston Harbor. From Chelsea Creek to the Neponset River, it enables the public to walk along the water’s edge. It wasn’t always that way. It took a fight by the mayor and community activists to make the harbor the public resource it should be. Along the way, some property owners tried to block access — but, eventually, the public won.

The public can win in Harwich, too.

Mike Ross is a Boston city councilor.

Court Battle Heats Up Over Bay View Beach Access

by William F. Galvin

HARWICH — Legal battles continue to wage over the right of residents to use the town’s Bay View Beach path off Davis Lane to gain access to the Nantucket Sound beach. The battle has a lot to do with shifting sands over time, whether public funds have played a role in beach accretion and if those funds entitle the public to access those beaches for uses other than those defined in the Colonial Ordinances.

The town is involved in litigation with three property owners along Davis Lane whose properties had traditionally run to the water’s edge. Those property owners are claiming ownership of the accreted beachfront. The town has been joined by the Friends of the Harwich Beaches, a group of residents who live in and around Davis Lane and Bay View Road, who are concerned the landowners seek to extend their property lines to the water’s edge and will privatize beachfront the neighbors have traditionally had access to for many years.

There is a process for claiming ownership to accreted beaches which includes approval of an Approval-Not-Required plan from the local planning board and recognition of the new high water mark due to accretion by the Massachusetts Land Court.

The town of Harwich has followed that process and received approval from the Land Court on its six-foot Bay View Beach path which now runs to the water’s edge. That approval had to be adjusted, canting the new portion of the property to the west to match an adjoining parcel. The town is also seeking to resolve property line issues with the abutter to the east of Bank Street Beach, based on the canting issue.

Town Survey Paul Sweetser said over the years there has been a change in the policy of the Land Court from running a straight line to the shoreline to canting it based on the previous boundary.

But the bigger question is the right of the public to access the beach. Under Colonial Ordinances of 1641 to 1647, a Public Trust Doctrine established the right to access tidelands for “fishing, fowling and navigation.” But the issue raised in this litigation cites the publicly funded construction of the Wychmere Harbor jetty as the reason for the beach accretion and claims the extension of beachfront is on commonwealth tidelands.

“It’s an issue of public trust,” Selectman Ed McManus said on Monday. “The beach accretion is caused by public investment and is taking place in the commonwealth’s tidelands. The private developers want to add this to their property and they need to provide public access along it.”

McManus said beaches formed through accretion resulting from public expense should not be given to a private developer without public access being provided. The question needs to be addressed, he said. Harwich is a beach community and providing public access is another means of bringing people to the community and helping to improve the economy, he said.

This past week, the Friends of the Harwich Beaches, which filed several months ago to be an intervener in the litigation, issued a press release in which McManus, former Lt. Gov. Thomas P. O’Neill, III, and Bancroft Wheeler, president of the Friends group, lauded the decision by Attorney General Martha Coakley to have her office review the commonwealth’s position on the pending litigation.

Last spring, then-town administrator James Merriam told The Chronicle a key point to watch is the commonwealth’s interest in the case. He said the structures there were built by the commonwealth and the Army Corps of Engineers.

There have been a number of Land Court decisions relating to beach accretion that help define ownership and access, but the Friends of Harwich Beaches attorney, Diane C. Tillotson, has stated the case presents a unique opportunity for the commonwealth to expand the Public Trust Doctrine.

In a memorandum issued last month, Tillotson stated, “It is important for all the parties to understand that in this case we are not looking for a determination from the court that anyone besides the upland owners have actual title to the property that has accreted adjacent to their registered land but rather that because these accretions were formed as an aid to navigation and paid for by public funds they should be treated as essentially what they are, i.e. ‘filled commonwealth tidelands,’ impressed with a public trust.”

Tillotson goes on to point out where commonwealth tidelands have been filled, the court has consistently upheld the state’s right to condition licenses to fill those tidelands on a provision by a property owner of some public benefit. This doctrine has never been applied in a case such as this where the filling was not done by a private landowner. “It seems logical that former commonwealth tidelands actually used by members of the public (as a result of the fact that they were located at the end of a town path to the water) should be subject to some particular benefit particularly where it can be shown that the accretion came from an aid to navigation constructed by public funds,” she wrote.

“These privatization moves contradict over 100 years of public use of the Bay View Beach, including a town path which preceded all public and registered beaches decades later and allowed the public to walk to the middle of Bay Road Beach and Nantucket Sound – including for strolling, swimming, resting, kiting, proposing marriage, celebrating marriage anniversaries and family reunions,” the Friends press release stated.

On Dec. 12, the press release said, the commonwealth’s attorney John Donnelly advised Judge Alexander Sands of the Land Court that the state continues to review relevant evidence before reaching a final view in the case. The Land Court has yet to make a decision in the case.

Letters to the editors

Cape Cod Today

http://www.capecodtoday.com/article/2014/01/28/23789-we-need-state-help-defend-beach-access

The Attorney General, after reviewing the beach access case that the town of Harwich and the Friends of Harwich Beaches has brought to preserve public access to the extensive accreted sands west of the Wychmere Harbor Jetty, has decided to not participate in the suit.

While there may be reasons why the state can't participate, in making the notification to the court, the Attorney General's office appears to be entering a stipulation with the landowners that will undercut the good reasons why the Town and Friends group should continue on with the suit. In essence supporting the landowners efforts to close public access to this publicly financed resource.

We ask your readers and viewers to please write or email the Attorney General and ask that if the State is not going to participate, they certainly shouldn't undercut the public's ability to secure and protect public access to the shore front and Commonwealth tidelands. On Cape Cod we need the state to help defend beach access.

John J Bangert
Friends of Harwich Beaches
Harwich, MA

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