After 18 Years In Hearings And Court, Mr. Blythe Gets His Dock Next To Popponesset Spit

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By: Brian Kehrl
Published: 09/24/10

Contractors finished a dock near the base of the Popponesset spit this week, capping nearly two decades of administrative and legal battles over perhaps the most contested piece of property in Mashpee.

A Barnstable Superior Court decision in December 2008 ended the wrangling over Frederic W. Blythe’s proposed dock, near the path off Wading Place Road in Popponesset used by hundreds of beachgoers on summer days to access the spit.

The dock was first proposed in 1992 but was held up by three separate lawsuits by neighbors and the need to refile for lapsed permits, according to court documents from the seven-year case.

Another lawsuit between Mr. Blythe and neighbors in the area remains in limbo, however, as the Massachusetts Land Court considers whether Popponesset residents have legal rights to the path leading from Wading Place Road down to the beach.

The path has been a source of contention within the neighborhood nearly a decade, as Mr. Blythe has arranged boulders and proposed building a gate to prevent passage.

The 2008 superior court decision has no direct bearing on the land court case, according to Michael J. Princi, a Hyannis-based attorney who has represented the plaintiffs in both bases.

The ruling was narrowly defined, and questions about ownership of the property were barred from the two-day trial that involved five town officials listed as witnesses, according to court documents.

The cases have drawn the attention of many residents in Popponesset and New Seabury, with 52 different individuals initially signing on to the land court case.

The dock case was pressed by Nancy J. Caffyn, a former state representative and also a former selectman, who lived next to Mr. Blythe. Ms. Caffyn died in May, at 75 years of age, after a long battle with cancer.

A co-plaintiff who initially joined Ms. Caffyn in the dock suit against Mr. Blythe and the Mashpee Zoning Board of Appeals, but later dropped out of the suit, died in 2007.

One of Ms. Caffyn’s sons, reached by telephone this week, declined to comment on the court cases or the dock.

Ms. Caffyn and her attorneys claimed the dock would be a safety hazard for children in the area, that it would harm shellfish and marine resources in the area, and would interfere with her right of way to access the beach. The Mashpee Zoning Board of Appeals was listed as a co-defendant in the case, which also claimed that the ZBA ignored the concerns raised by her and other opponents.

The case was an appeal of the ZBA’s approval of the dock.

Soon after, Mr. Blythe filed a countersuit against Ms. Caffyn, claiming that the initial suit was filed due to a “personal grudge” held against Mr. Blythe. He accused Ms. Caffyn of exerting political pressure on town officials to turn down the proposal and requested $60,000 in damages.

After six years and dozens of legal motions, including claims that Mr. Blythe is not the rightful owner of the waterfront property, an injunction against Mr. Blythe blocking the way to the water, and a “protective order” preventing Ms. Caffyn from pursuing information on Mr. Blythe’s ownership of the land, the case went to trial.

The judge ultimately decided that Ms. Caffyn did not have standing to sue. “Because this Court finds that Caffyn lacks standing to pursue her appeal, it must be dismissed,” Judge Richard F. Connon wrote.
In an interview this week, Mr. Blythe said, “That is pretty bad, when it takes you 18 years to find out they had no right to bring suit to begin with,” he said.

My. Blythe had won an earlier lawsuit on similar grounds, but failed to build the dock in time and so had to refile for new permits, and settled another with an agreement to allow another neighbor to have use of the dock written into his deed.

Mr. Blythe, who works for a beverage wholesaler on Martha’s Vineyard, said he has not tallied the total cost of the dock, but he estimated that it cost him about $1,000 a month for attorney’s fees, over 18 years. “You can do the math,” he said.

“Once you get so much invested in it, you are forced to fight through,” he said. “My family has lived there since 1949, and we always had a dock...If you have a house on the water, I think you should have a dock. I think that is pretty basic. Everyone else does.”

“I just stood the ground on what I believe is right and fought real hard. I am not going to roll over and let someone dictate what I can and can’t do with my property,” he said.

Mr. Blythe said the access question has nothing to do with the dock, since land court is the proper venue to decide ownership. “That is what we are there for. They say it is not my property. I say it is. Land court is going to decide that question,” he said.

He said he has “every right” to erect a gate or rearrange the boulders to prevent access, but up to this point, he has opted not to. He questioned the mentality of people using private property for their own uses. “If you have a pond behind your house, does that mean I get to walk across your property to get to the pond? That is basically what they are talking about doing,” he said.

“The way I look at it, this is probably the only free beach on the Cape. As far as I know, there are no free beaches in Falmouth. There are no free beaches in Mashpee. You need a sticker. You need to pay the state,” he said. “And there are no rules down there. There’s people drinking, playing volleyball, walking dogs, flying kites, barbecuing. Can you do that on any other piece of property? I don’t think so.”

The land court case is awaiting a decision by the judge, who heard arguments on it last fall, according to Mr. Princi.

The case was initially filed in 2006 by William S. Ricci, a Popponesset resident who has since died. It is now being pursued by one of his sons, Mr. Princi said.

The land court case focuses on what was a new shoreline in the 1960s. Fields Point Manufacturing Corporation, the corporate predecessor to New Seabury and Mashpee Commons, filled in the area at the beginning of the spit with dredge spoils as part of plans to develop a beach club on the sandbar, according to documents filed by the plaintiffs with the land court. Sand had also naturally accreted in the area.

So with new property and a changed shoreline, homeowners from the area and representatives from Fields Point divvied up the new land amongst themselves and filed the plan with the registry of deeds, according to the plaintiffs’ case.

But engineering plans showed that other homeowners in the area had previously been granted access across a “way” off of Wading Place Road that used to lead to the water.

“In the process, our position is, they completely ignored the people who had the rights to the way to go down to the water to swim and shellfish and, at low tide, walk over to the spit,” Mr. Princi said. “Even if they claim to be entitled to the land, they have to recognize our rights.”

Mr. Princi said the case could set a precedent for legal questions about the rights of the public to changed coastal areas.

Mr. Princi said the superior court may not have direct legal bearing on the land court suit, but if Mr. Blythe loses the land suit, it could yet affect the dock. The dock is immediately adjacent to the lot line shown on the original plan.

“He has built it right within the way, which I guess makes it accessible to us. Or I don’t know what exactly it would mean,” he said. “But he knew this and he chose to build it at his own peril.”

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