Squeezed in, or out in Westerly

ACCESS DENIED? Daniel Alvino, who owns a home in the Misquamicut section of Westerly, in front of the “public access” sign across the street from his house. / PBN PHOTO/MICHAEL SALERNO
ACCESS DENIED? Daniel Alvino, who owns a home in the Misquamicut section of Westerly, in front of the “public access” sign across the street from his house. / PBN PHOTO/MICHAEL SALERNO

It wasn’t long after he bought a new two-story house across the street from the beach that Daniel Alvino realized life in the Misquamicut section of Westerly wasn’t going to be all sun and sand.
Alvino’s house on the north side of Atlantic Avenue is just a few steps from a public path that leads between the beachfront homes on the south side of the street and down to the water. On either side of the path the owners of those beachfront retreats had erected fences to keep people off of the beach in front of their property.
With each year, Alvino said, the fences got longer, hemming beachgoers either inside the 12-foot right of way or so close to the water they ended up in the surf.
“They just kind of pushed us into the right-of-way until one day we were sitting confined between fences on either side and water lapping at our feet,” he said.
Fifteen years of neighborly animosity and failed compromises since Alvino moved to Misquamicut, a process is underway to settle where on the beach they can freely walk. In the fall of 2012, Attorney General Peter F. Kilmartin sued seven beachfront property owners in an attempt to win legal public access to the sand.
The case has inched along since then and is now being argued in Superior Court.
The argument focuses on roughly 2.5 miles of sand east of the undisputedly public Misquamicut State Beach, in a stretch of the coastline developed at the beginning of the 20th century.
Kilmartin argues that the original 1909 subdivision drawing for the area includes a 90-foot-wide public-access corridor between the ocean and the newly created lots.
That public-access corridor was eventually wiped out on subsequent land records, especially through a 1969 survey plan, the suit argues, by property owners who didn’t want other people on the beach.
The defendant beachfront property owners, whose number has swelled from the original seven named by Kilmartin to 13, say the attorney general is reading the 1909 plat wrong: the original developers never meant to create any public-access corridor. And even if the markings had indicated an intended right of way in 1909, more than a century of landowners, neighbors, visitors, police and town officials have considered the whole beach private, negating any public property rights if they did ever exist, according to defendants.
The case falls within a long and complicated history of shoreline public-access disputes and, like its predecessors, could have broad implications on coastal property law well beyond Westerly.
“I would say it is extremely important for all of Rhode Island for the fact that both sides have gone into this realizing the law in this area is not as clear as it could be,” said Dennis Nixon, professor of marine affairs at the University of Rhode Island and director of the Rhode Island Sea Grant program. “The judge is treating this very seriously and it is almost certain that whoever loses will appeal to the state Supreme Court.”
Nixon, an attorney who has worked on shoreline-access cases before, said the issues in the Misquamicut suit raise questions about the “mean high water” line, the current boundary for where all private coastal land ends in publicly owned ocean.
In Rhode Island, like many states, that boundary is set by averaging the high-tide mark over the previous 18 years.
But especially in sandy coastlines that face the open ocean, like Misquamicut, this line can be a moving target, Nixon said.
Rising sea levels and erosion carve off 2 feet of beach per year, but large storms, such as Hurricane Sandy, can chop off 6 feet over the course of a few days.
“I would be one to say we need a formula that is more flexible that acknowledges that in a dynamic shoreline, the method of determining [what] is public and private is not adequate,” Nixon said. “This is where law and nature run into each other.”
On top of beach-access issues, the mean high-tide line also impacts the size of buildable lots, a major issue during rising seas and extreme storms.
Massachusetts and Maine use the mean low-tide line and, on the other side of the spectrum, Oregon and Texas declare everything to the first piece of terrestrial vegetation public. Nixon said the case is also likely to revisit law around “easement by prescription,” a doctrine related to squatters rights by which the public can gain access to land, if not ownership, through persistent use of it over many years.
The defendants say that concept works more in their favor, however, as visitors and neighbors have typically steered clear of the beach because of the homeowners’ claims on it and their efforts to keep people away.
Deputy Attorney General Michael Rubin, who is arguing the case for the state, said he could not discuss it because of the trial.
William R. Landry, the lawyer representing the defendants, said in this case negotiations over a settlement were never much of an option because of the need to resolve the root legal question, which has only “crystallized” since the complaint was first filed.
Superior Court Judge Brian P. Stern has decided to hear the case in two parts.
The first part, underway now, is on the question of whether the grantors of the land did in fact intend to convey public beach access back in 1909.
The second part of the case, if it goes ahead, would involve whether the public accepted the right of the way to the beach or forfeited it through inaction.
Stern could rule for the defendants in the first phase, canceling the second phase, rule for the attorney general in the first phase, triggering the second phase, or decide not to rule at all on the first phase until hearing the second phase.
Briefs in the first phase, mostly lengthy discussions of Victorian-era land records, were scheduled to conclude June 6. Oral arguments in the first phase are expected to start this month.
For Alvino, a retired school administrator who moved to Westerly from New York, the contentious nature of the dispute “has taken some of the luster out of living here.
“Our children do not want to come down because they think they are being stared at,” he said. “They’d rather drive to the state beach a mile away. It is an unpleasant situation.” •

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