April 9, 2014 12:54PM
By DALE P. FAULKNER
Sun Staff Writer
WARWICK — The lawyer for Misquamicut property owners who say their rights are under siege by the state sought to undermine Attorney General Peter Kilmartin’s case Tuesday by eliciting testimony from two expert witnesses confirming that contemporary records, including some prepared by the town, depict the beach in front of their homes as being private.
During a cross-examination by William Landry, who represents the owners, Alfred DiOrio, a licensed land surveyor, acknowledged that nine surveys conducted for some of the property owners by surveyor Louis DiCesare, Cherenzia & Associates, and others that were conducted on behalf of the state Coastal Resources Management Council, did not establish a boundary line between the building lots and the beach but instead depicted the individual lots as stretching just shy of the water’s edge to the mean high tide mark.
The state is trying to establish that five property owners who banded together in 1909 to market what was then known as Pleasant View intended to dedicate the beach area, in the 2½ mile stretch from what is now Misquamicut State Beach to Weekapaug Breachway, as public.
Part of the state’s case relies on the original plat, or map, which depicts an uneven line running along the “foot of the bank” or the spot where land gives way to sand. The state claims that DiCesare prepared a map in 1969 for one of the defendants, Clarence Brown, that erroneously omitted the line dividing the land from the beach, and that some of Brown’s neighbors followed suit.
DiOrio, who lives and works in Hopkinton, had testified earlier as an expert witness for the state. The trial started April 1 in Kent County Superior Court.
During the cross-examination DiOrio also acknowledged that surveyors commonly seek to establish physical features such as the foot of the bank. Landry also sought to establish that the line at the foot of the bank might not have been intended as a boundary line but could have been the original surveyor’s attempt to establish a building setback line, essentially showing that the houses could not extend onto the beach.
To that end, Landry posed the following question to DiOrio: “You wouldn’t know if a particular survey was meant to depict boundaries as opposed to other features, as opposed to being a compilation of other maps, or possibly all of these things at the same time right?”
“No,” DiOrio said, indicating he could not determine what standards the drafter of the 1909 map employed in rendering the area.
One of the more recent surveys was conducted by DiOrio himself, before he was retained to perform work on the case for the Attorney General’s Office. That survey, from January 2010, was prepared by DiOrio for Robert and Carolyn Martino, owners of property at 471 Atlantic Ave. The survey depicts the property, which was part of the original 1909 plat, as ending at the mean high water mark.
DiOrio had testified earlier that he was unable to determine the southern boundary of the properties in the 1909 plat due to ambiguities between the plat and other documents related to the properties shown on the plat.
DiOrio also testified on Tuesday that many of the modern maps of the area depict rights of way, or paths, running across the properties down to the mean high water mark. Rights of way depicted in the 1909 map stop at the portion of the beach closest to Atlantic Avenue, a point the state has used to bolster its case that the original owners intended the entire beach area to be open to the public. Some of the rights of way are depicted in a survey map produced in 1991 by the Westerly Department of Public Works and the town’s engineering department. The map is based on a plan developed in 1961 by Rossi & Lewis Engineers.
Landry also sought to undermine the state’s case by raising the possibility that the five property owners who signed the 1909 plat were not the sole property owners at the time. He elicited testimony from DiOrio confirming that the name Hoxie is written on one of the lots shown on the plat. None of the original five plat signers was named Hoxie.
Landry also tried to prove that his clients have been taxed at a rate reflecting ownership of the beach. As examples, Landry noted that Jane Taylor, an intervenor defendant in the case, who owns property at 503 Atlantic Ave., is listed by the town as owning .47 acres of land with an assessed value of $1.6 million. Taylor’s house has an additional assessed value of $435,000. Dunes Park Inc., also an intervenor defendant in the case, owns land with an assessed value of $5 million at 665 Atlantic Avenue.
Westerly Tax Assessor David Thompson said the town’s system for determining assessments considers the nature of beachfront properties, including the owner’s view of the ocean and access to the beach. He did not comment directly on whether the property owners in question were taxed at a rate that denotes private beach ownership.
The non-jury trial, which is being heard by Associate Justice Brian Stern, is set to resume Thursday with testimony from Westerly Town Engineer Paul LeBlanc and Janet Freedman, a coastal geologist with CRMC.
The Cherenzia Companies, which owns Cherenzia & Associates, is The Westerly Sun’s landlord.