Harwich beach at epicenter of battle over access rights
By
Doug Fraser
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.
"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.
_______________________________________________
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.
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.
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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