Witnesses back claims for access to Westerly beach

Witnesses back claims for access to Westerly beach

The Westerly Sun

WARWICK — Two witnesses called Monday to testify in the Misquamicut beach access case said they both believed that the beach area, from Westerly Town Beach to Weekapaug Breachway, was open to the public, but questions from the defense lawyer challenged the basis of the witnesses’ opinions.

One of the witnesses, Terrence McGrath, testified that he bought a rundown cottage on the north side of Atlantic Avenue on the strength of representations from the owner and real estate broker that ownership of the property conveyed rights to use the beach across the street. He bought the cottage at 484 Atlantic Ave. in 1999 for $131,500, spent $30,000 on renovations, and then in 2008 tore down the cottage and built a 1,896-square-foot house suitable for year-round residency for $550,000. His house is currently assessed at $670,000.

While answering questions from William Landry, the defense lawyer, McGrath acknowledged that he had not studied the value of homes on the other side of the street before buying the cottage.

The trial, being heard in Kent County Superior Court, stems from a lawsuit filed on behalf of state Attorney General Peter Kilmartin. The state claims that seven owners of property on the south side of Atlantic Avenue, from the town beach to the breachway, have hindered access to the beach despite a 1909 agreement that it says designates a 2½-mile-stretch of beach in the area as public. The seven property owners, who have been joined by 10 interveners to defend against the state’s case, say there was never any such agreement.

According to the state, the four individuals and one company that owned the land in the disputed area, on both sides of Atlantic Avenue, banded together to market the area as Pleasant View Beach. The group agreed to separate the beach from the building lots and make the beach public as a means of balancing the value of property on both sides of the street. In other words, the rear lots were marketed, the state claims, as having complete beach access as if they were on the ocean side of Atlantic Avenue.

On the day that McGrath and his wife looked at the cottage, the owner, Martha Bruno, brought the couple down to the water. “She said this is the reason why this place is such a good deal. She took us across the street, down a path, and said this is the ocean, this is the beach and this is available for your use,” McGrath said.

By the summer of 2002, McGrath said that William Anderson, the owner of property at 491 Atlantic Ave., told McGrath to get off his beach. “He asked me if I really understood private property in the United States,” McGrath said, adding that it became a repetitive conversation.

During busy beach days, McGrath said, Anderson posted a no trespassing sign. A photograph of the sign from July 2011, introduced as an exhibit in the case, shows waves lapping at its base.

Anderson and two co-owners sold their property in May for $1.2 million. Anderson was originally named as a defendant in the case but was dropped from the suit because he sold his property.

McGrath said the encounters with Anderson prompted him to research deeds for property in the area and ultimately led him to a map signed by the original owners in 1909. The state, which has built much of its case on the 1909 map, says it depicts the beach as being separate from the 200 building lots shown on the map. The map also depicts the lots on both sides of the right of way path that McGrath said he typically uses to get on the beach. The lot dimensions recorded on the map are too small, McGrath said, to include the beach.

Under questioning by Landry, McGrath said he was not aware when he bought the property that Bruno owned it, only that she was serving as the sales broker. He also said he was not aware that his own deed refers to a plat that shows his lot as being part of a subdivision that was created more than 20 years after the 1909 plat. The more recent plat does not even depict the beach or the ocean, Landry noted. Under questioning from Assistant Attorney General Michael Rubin, the state’s lead lawyer in the case, McGrath said that an earlier deed for his property referred to the 1909 plat.

McGrath also acknowledged that he decided to build a new house on his property despite having been confronted with Anderson’s contention that the beach was private.

The other witness, Earl LeClaire, 71, testified that as a boy he frequently fished and lobstered on the beach between where the town beach is now and the breachway. He said he often went to the beach from his family’s house, off Cove Road, and sometimes slept under lifeguard boats left on the beach in front of the Seaside Beach Club. As he grew older, LeClaire said, he drove his dune buggy on the beach and used the same shoreline area as a spot to meditate. In those days he often entered the beach by way of a path across Atlantic Avenue from Breach Drive, where a friend of his lived. The beach often made its way into LeClaire’s poetry, he said.

“There were always people on the beach,” LeClaire said.

LeClaire, who now lives in North Carolina, recalled a single time in 1963 or 1964 when a man came down from a house on Atlantic Avenue and told him that the beach was private property. “I asked him, does a flea own the dog it lives on?” he testified.

Landry asked LeClaire if he knew that one of the original 1909 owners of the beach has given private easements for beach use to both Cove Road residents and residents of Breach Drive. LeClaire said he was not aware of the easements.

Defendants in the case are: Joan M. Barbuto, Lynne D. Kaesmann, Joann Harrington, Clarence G. and Judith W. Brown, John B. Stellitano, James M. Tobin, Joshua M. Vocatura, Nicholas P. Jarem, Sandra L. Jarem, Mickmays LLC., Joan A. Carr, John C. Maffe Jr., Patricia Jean Shannon, Stephanie E. Immel, Jeanne E. Shannon, and Joseph M. Shannon. Some of the lots have shared ownership. The following property owners joined the case as intervenors: Dunes Park Inc., Donna Pirie, Margaret Andreo, Janet Taylor, David McGill, Miriam McGill, Timothy Shea, Brian Shay, and Justin Shea, and Jeffrey Feibelman.

The trial was scheduled to resume, for its 10th day, this morning.

This story was corrected on April 17.


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