Tensions Rise Over Town Neck Beach Easement

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By: James Kinsella
Published: 09/06/13

Last year, Town Neck residents with deeded rights to the White Cap Path easement could use that way to reach a stretch of public beach along Cape Cod Bay.

But in the wake of extensive erosion earlier this year, a few beachfront homeowners are contending that the public beach at the end of White Cap is now under water—essentially turning White Cap as into easement that leads only to private property. And that has led to some verbal confrontations between members of the Sandwich Shore Condominium Association who own that private beachfront, and the hundreds of Town Neck residents who have deeded rights to use the easement.

The issue became public at the seasonal residents forum held during the August 22 meeting of the board of selectmen.

Views were expressed from both sides. In the wake of the discussion, Town Manager George H. Dunham said he had asked several department heads to research the matter.

But James Pierce, chairman of the board of selectmen, said his communications with Jonathan D. Fitch, the Sandwich attorney representing the condominium association, has led him to believe that the Town of Sandwich does not have a dog in this fight.

Mr. Pierce said yesterday he believes the disagreement is a civil matter between the association and the other Town Neck residents.

He said three public rights-of-way exist along Freeman Road to reach the beach along Cape Cod Bay. Signs mark the ways as public access.

On an informal tour of the Town Neck area yesterday, which Mr. Pierce said he conducted as a private Sandwich resident rather than as a Sandwich town official, he pointed out that a great deal of public beach still exists on the neck. All of that beach is reachable by legal public access.

But White Cap Path, farther east on Freeman Avenue, is a different kettle of fish from the three public easements. It is not a public easement but a “deeded” easement for about 400 properties in the area.

Peace reigned for decades. But then came the severe winter storms of earlier this year, which Mr. Fitch said swallowed the town-owned beach at the end of the White Cap easement.

As summer arrived, Town Neck residents again headed for the White Cap easement and what had been the public beach.

That’s when the trouble began.

About a month ago, Mr. Fitch said, he was approached by the association and asked to render a legal opinion. He did so.

Mr. Fitch declined to provide a copy of the opinion, which he said belonged to his clients.

But he spoke in general yesterday about what he believes to be the applicable law in the matter.

The attorney said the state defines properties along the ocean as littoral properties. The landward side of the properties remains fixed, but the seaward side can wax or wane.

Littoral properties actually can grow in size, should the tides bring in more sand. But they also can shrink through erosion.

Mr. Fitch said the latter occurred in the storms earlier this year that pounded Town Neck, putting the town-owned beach under water.

As legal support for his argument, Mr. Fitch cited the state Supreme Judicial Court’s 2013 decision in White v. Hartigan. In that case, the court affirmed a land court decision holding that the plaintiffs did not hold title to a beach as it currently existed since their interest was to a beach now submerged in the Atlantic Ocean.

The White Cap easement, Mr. Pierce said, now extends into the sea. Town Neck residents with deeded rights can use and sit down on the landward side of the easement, which measures 10 feet wide. But he said that they have no rights to use the beach that abuts either side of the easement.

Mr. Pierce said he anticipates that he or Mr. Dunham will address the White Cap issue, perhaps only briefly, at next Thursday’s meeting of the board of selectmen.

Meanwhile, Mr. Fitch said a remedy exists for Town Neck residents grieving the alleged loss of the public beach reached by the White Cap easement.

Either the Town of Sandwich or the US Army Corps of Engineers—whose Cape Cod Canal breakwater Mr. Fitch said has aggravated erosion along the Sandwich shore—could step in to replenish the sand and recreate a public beach on the far end of the easement.


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