September 9, 2013 07:08AM
By DALE FAULKNER
Sun Staff Writer
PROVIDENCE — What was the intent of the original five owners of a 2.5-mile stretch of land from the Westerly Town Beach to Weekapaug Breachway when they divided their property for sale in 1909? That is at the heart of a legal battle that could result in the entire beach segment of the area being declared public.
Lawyers for the state, which claims the original owners dedicated the beach area as public, and 28 of the current owners, who claim the beach area above the mean high-tide mark is theirs, presented their positions before Associate Justice Brian Stern in Providence Superior Court on Aug. 30. Both sides have asked the judge to make a summary judgment, meaning he would render a decision based on the thousands of pages of briefs, motions and memorandums filed by both sides, and forgo a trial. Stern is expected to announce his decision, which could include sending the case to trial, on Friday.
William Landry, the lawyer for the 26 individuals and two companies that own the property in question, told the judge his clients were shocked to learn of the state’s claim when a lawsuit on behalf of the state Attorney General’s Office was filed in September 2012.
“They, like their predecessors in title, came here, chased and caught the dream of owning ocean-front property in the Ocean State, making in most cases the biggest investment of their lives, and they all awoke one day about a year ago to learn the astounding news that the Ocean State was, for the first time ever, taking the position that their beach-front property was in fact public,” Landry said.
Assistant Attorney General Michael Rubin said the original plat, or subdivision map, from 1909 clearly shows that the property owners intended to separate the beach from the other building lots, and for the beach to be treated as public land. Otherwise, Rubin said, the property owners would have been “prisoners to their property lines,” with access only to the small segment of beach in front of their specific lots.
In addition to depicting the beach as separate from the house lots, Rubin said the plat also depicts rights of way to the beach. The rights of way are also distinguished as being separate from the house lots, Rubin said.
The town of Westerly, Rubin noted in a court filing, has historically treated the beach area as untaxed, unalotted land. Town maps show the area in the same way, he said. Landry, in his filings, disputes the tax claim, saying the owners are taxed for owning the beach.
By declaring the entire beach public, Rubin said, the original five property owners were able to market the lots, including those on the non-beach side of Atlantic Avenue, as all having beach access and rights to the beach as “a community amenity.”
Citing Atlantic City in New Jersey as an example, Rubin claims “cases from across the nation involving water-front resorts show a historical tradition of dedicating beaches lying in front of private lots.”
Landry said some aspects of the plat are unclear, but he noted it depicts public rights of way between some of the house lots. Those depictions are proof, Landry said, that the original owners would have similarly designated the beach as public had that been their intent. Rubin however, said the plat clearly depicts the individual building lots stopping at the beach.
In 1969, according to Rubin, Clarence Brown, one of Landry’s clients, had a survey performed by land surveyor Louis DiCesare. The survey “magically” changed the dimensions of Brown’s property by adding about 60 feet, or the approximate length of the beach, up to the foot of the dunes, above which Brown’s house sits.
“To put it politely, it’s a figment of the imagination,” Rubin said, of the survey and its results, which Rubin said caused other property owners along the stretch to behave as if they owned the beach area as well.
Rubin points to the DiCesare survey as the source of much of the confusion surrounding the area in question, including various attempts by the town to enforce no-trespassing policies in the area.
Had the original owners intended the beach to be used by the public, Landry said, the beach would have been formally accepted by the state or the town, but Rubin pointed to other cases in which he said unallotted areas are presumed to be offered for public dedication. Rubin also argued that unlike roadways that must be accepted by the state or the town, natural areas such as a beach do not require the same type of formal acceptance action.
The affidavits of 10 “citizens of venerable years” are used by Rubin in his motion seeking a summary judgment. The affidavits, including one by Gloria Russell, the author of a weekly nostalgia column for The Sun, attest to a time between the 1920s and the 1970s when the beach area in question was widely used by the public.
Rather than relying only on the plat for guidance in determining the original owners’ intent, Landry said Stern should consider the hundreds of deeds involving the properties over the decades, which he said describe each lot as extending to the water.
Landry also cited, in court papers, Westerly Sun articles that he said describe the owners building seawalls, walkways and other structures on the beach in front of their house lots. Rubin referred to other articles in The Sun that he said described use of the beach area in question by hundreds of members of the public on given days.
The state and town historically treated the beach area as private, Landry claims, pointing to trespass enforcement and land acquisition for construction of Weekapaug Breachway. Deeds and other documents that outline the acquisition of property for the breachway from Dunes Parks Inc., one of Landry’s clients, clearly show the Dunes Park property extending to the mean high-tide mark, he said.
As recently as the summer of 2012, Landry said, former Town Manager Steven Hartford and Westerly Police Chief Edward St. Clair helped Lynne Kaesmann, one of the current property owners, keep her property free from trespassers.
Some of the current property owners have erected fences and posted signs declaring the beach area, above the mean high-tide mark, private. The owners have harassed the public by trying to keep them off of the property, Rubin said.
“We are simply asking that the fences come down, the signs come down and the harassment stop. That’s all we want,” Rubin said.
The property owners in the case are: Joan M. Barbuto, Lynne D. Kaesmann, William H. Anderson, Susan Brandt, Joann Harrington, Clarence G. Brown, Judith W. Brown, John B. Stellitano, trustee of the John Bruno Stellitano living trust, James M. Tobin, Joshua M. Vocatura, Hattie G. Vocatura trust, 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.