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Rhode Island Attorney General Peter Kilmartin filed a lawsuit in September 2012 accusing seven owners of property along Atlantic Avenue of illegally blocking the public’s access to a stretch of beach from the Westerly Town Beach to Weekapaug Breachway. The state claims that the beach property was dedicated for public use in 1909. | Sun File Photo

Judge says he will decide next month on Westerly beach case

WARWICK — A Superior Court judge asked lawyers on both sides of a Misquamicut beach access case for additional detail on their legal theories Wednesday and promised to make a decision next month.

Associate Justice Brian Stern said he wanted additional information on certain points that he said were unclear even after a nearly three-week-long trial in April and 300 pages of post-trial briefs filed by Assistant Attorney General Michael Rubin and the lawyer for the defendants, William Landry.

Rhode Island Attorney General Peter Kilmartin filed a lawsuit in September 2012 accusing seven owners of property along Atlantic Avenue of illegally blocking the public’s access to a stretch of beach from the Westerly Town Beach to Weekapaug Breachway. The state claims that the beach property was dedicated for public use in 1909.

The original defendants were Joan M. Barbuto, Lynne D. Kaesmann, William H. Anderson, Susan Brandt, and 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. Anderson has sold his property and is no longer a defendant. Landry and lawyers for intervenors now list 30 defendants in the case.

The property owners argue that the disputed area is private property and the public’s access should be limited to the area between the mean high water mark and the water — the area preserved for public use by state and federal laws.

Rubin told the judge that the state is seeking a declaration that the entire 2.5 mile stretch of beach is open to the public for sunbathing, swimming, and beachcombing by virtue of an easement established in 1909 when the former property owners subdivided their holdings and documented their intent on a map recorded in the municipal land records.

Responding to a question from the judge, Rubin said that while the property owners would continue to hold legal title to the beach area, the public should have unfettered access. The rights of the defendants, he argued, “doesn’t include the right to keep people off of the beach.”

The state is involved in the case, Rubin said, because it involves the sanctity of land records and because the owners of property on the north side of Atlantic Avenue bought their homes believing they would have access to use the beach across the street. He also said the beach should be available for tourists. “We want the signs to come down, the fences to come down, and for the harassment to stop,” he said.

Much of the hearing in Kent County Superior Court focused on the significance of the plat or map signed by five of the original property owners in 1909. The map depicts nine paths or rights of way leading from Atlantic Avenue and stopping at a line described on the map as “foot of the bank.” The state claims the line shows the end of the building lots and has the effect of delineating the beach as an open, unbroken area for the public.

Landry argued that the line, which undulates and breaks in some spots, is simply a recognition of a physical feature, not a boundary marker. He said the plat should not be interpreted as showing the original property owners’ intent since there were others who owned property in the area shown on the plat who did not join with the five owners who signed the plat.

“There is case law that holds, for a conveyance to take place all, of the owners of the land had to have the same intent,” Landry said.

At the time the plat was recorded, Landry said, those who owned property in the area were busy establishing private rights to harvest seaweed from the shore and establishing other rights of way over the property.

“These activities are incompatible with the notion that they meant to dedicate it to the public because they knew they didn’t own a lot of it, they knew it was full of private rights,” Landry said.

Rubin rebutted by pointing to a case from 2005 involving the Newport waterfront. In that case, which preserved the public’s right of access, Rubin said the state Supreme Court looked past the fact that not all of the original property owners had signed the plat in question. “The court brushed past that, looking at the overall scheme,” Rubin said.

In the Misquamicut case, Rubin said Stern could reach a similar conclusion more easily because the property owners who did not sign the 1909 plat owned lots that abutted rights of way on either side of the disputed property, leaving an uninterrupted stretch of 35 beachfront lots. In the Newport case, property that was not owned by the plat signers had to be traversed to get to the waterfront.

The two lawyers renewed their disagreement about language in deeds documenting the sale of lots depicted on the plat as well as in the indenture or contract that was recorded on the same day as the plat. Rubin focused on descriptions of lots running “to the beach,” saying the phrase shows that the owners intended for the beach to be separate from the rest of the property.

Landry focused on language suggesting that the building lots run to the ocean. Landry also noted that the original owners took steps in the indenture to “dedicate” the rights of way as being “separate” from the rest of the land. By describing their intent for the rights of way in detail, Landry said the property owners showed “they knew how to dedicate rights” and how to differentiate between private and public rights. The property owners did not take similar steps for the beach area, he said.

“They chose these words really carefully for these nine rights of way,” Landry said

Stern said he would render a decision in August. A decision in the state’s favor would trigger the second phase of the case — a determination of whether the original owners’ offer to dedicate the beach as public was legally accepted by the town or the state.

A decision in the defendants’ favor would mean the end of the case unless the state appeals to the state Supreme Court.

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