Unhappy Aquinnah taxpayer sues to use Philbin Beach

Unhappy Aquinnah taxpayer sues to use Philbin Beach

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An Aquinnah property owner, irritated that the town denied him a beach sticker to Philbin Beach, has filed suit in U.S. District Court. John M. Callagy of Fairfield, Conn., a partner in an international law firm, claims the town has violated the U.S. Constitution and the Massachusetts Unfair Trade Practices Act.

Mr. Callagy claims that as a taxpayer, he has a right to a beach sticker, just as someone does who rents a house in Aquinnah. If not, then renters have no right to a sticker, he argues.

Ron Rappaport, Aquinnah town lawyer, sees it differently. He said the issue is the difference between a resident, someone with a residence, and a taxpayer with a piece of property. Mr. Callagy no longer meets the definition of a resident, Mr. Rappaport says.

A beach sticker is valuable on Martha’s Vineyard, particularly a sticker that provides access to one of the Island’s exclusive resident-only South Shore stretches of sand.

Philbin Beach is off Moshup Trail, on the southwest corner of Martha’s Vineyard. The Land Bank’s public Moshup beach and the colorful Gay Head Cliffs are located to the west. Private beaches are located to the east.

An attendant housed in a small shelter monitors a dirt parking lot at Philbin. The lot generated approximately $25,000 for the town in the last fiscal year.

Mr. Callagy, a longtime seasonal resident, is familiar with the pleasures of Island beaches. From 1986 to 2007, he owned a house at the end of Ox Cart Road overlooking Dogfish Bar and Vineyard Sound. In 2007, Mr. Callagy subdivided the property, sold the house and retained an unbuildable lot.

He now owns a house overlooking Squibnocket Beach in Chilmark, one of the Island’s more exclusive resident-only beaches. But Mr. Callagy wants to continue to visit Philbin Beach.

In April 2009, he sent a letter to Aquinnah selectmen claiming his right to a beach sticker. Unsatisfied with the response, he decided to file a lawsuit.

Unfair

In a six-page complaint filed in US District Court in Boston on October 6, Mr. Callagy said that when he went to apply for a sticker he was told that the beach was a gift to the town, and the deed restricted access to town residents and their guests. Because he is no longer a resident, he was told, he could not have a sticker.

Mr. Callagy argued that there is no rational basis for the town to issue beach stickers to renters and deny them to a taxpayer, a policy that runs counter to the policy of other coastal towns.

The lawsuit, among other arguments, draws on the Fourteenth Amendment to the Constitution, arguing that the town has intentionally discriminated against Mr. Callagy, as a non-resident, taxpaying landowner.

In addition, Mr. Callagy argues that denying parking stickers to Aquinnah taxpayers who do not have residences, while selling passes to other taxpayers and non-taxpayers alike, is an unfair trade practice in violation of Massachusetts General Laws.

The lawsuit asks the court in a declaratory judgment to order the town to issue a beach sticker to Mr. Callagy, while he continues to be a taxpayer. Mr. Callagy also asks that the town be ordered to cover his legal fees.

And, to the extent that the deed by which the town gained rights to the beach is the basis for denying him a permit, Mr. Callagy asks the court for a declaration “that the deed prohibits the defendant (the town) from issuing such parking stickers to any person who is not a guest of an Aquinnah resident, including but not limited to persons who rent houses belonging to Aquinnah residents.”

Land is not a residence

Town officials asked Mr. Rappaport to respond to Mr. Callagy’s initial claim to a sticker. In a telephone conversation last week, Mr. Rappaport said the arguments remain the same as those he outlined in a letter dated May 20, 2009.

Mr. Rappaport said the beach and parking lot was a gift of J. Holladay. The deed, dated February 16, 1968, provided that the property was “for the use by all permanent and seasonal residents of Gay Head and their accompanied guests for swimming, sunbathing, fishing, and related recreational activities.”

The deed also stipulated the town could construct a parking lot to accommodate not more than 40 vehicles.

Mr. Rappaport said the term “resident” has a clearly defined meaning and is limited to one who has his residence in a place. “It cannot be interpreted to also include taxpayers, as you suggest,” the Aquinnah counsel wrote Mr. Callagy.

Mr. Rappaport added that it was Mr. Callagy’s choice to retain an unbuildable lot. He said that if the category of beach users were expanded to include all taxpayers, the use of the parking lot by Aquinnah residents would be frustrated.

In a response dated November 2 filed in US District Court, Mr. Rappaport amplified the points of law he made in his earlier letter and underpinned the facts he said support his arguments.

Camille Rose, chairman of the Aquinnah selectmen, said the town honors the language of the Philbin Beach deed and manages a limited parking space. In a telephone call Tuesday, Ms. Rose said Mr. Callagy now lives in Chilmark, and the same residency rule applies.

“He’s been fussing about this for a couple of years,” Ms. Rose said. “I’m really quite surprised that he’s pursuing this.”

What do you do?

In a telephone conversation October 29, Mr. Callagy said one of the reasons he decided to subdivide his property was so that he could continue to get a beach sticker for Philbin Beach. He acknowledges that he should have checked town regulations, but he said he could not conceive that as a taxpayer he would not be given a sticker.

He decided to file a lawsuit, he said, because the town refused to budge, and he was left with no choice. “What do you do in the world if you have a dispute with somebody, and they will not even engage you,” he said. “Either they win because you are forced to walk away, or you call the question. I happen to be a lawyer, so I understand lawsuits.”

Mr. Callagy is a partner and chairman of Kelley, Drye and Warren, an international law firm based in New York City, with offices in Washington, DC; Chicago, Ill,; Stamford, Conn.; Parsippany, N.J.; and Brussels, Belgium. The firm also has an affiliate relationship with a Mumbai-based independent law firm.

Mr. Callagy said he does not like to bring lawsuits and has brought very few in his life. He says he has no interest in suing the town where he goes to get away from his profession. “But what do you do?” he asked. “Do you just walk away from it? It doesn’t seem to me you should have to do that.”

Asked what he would say to an Aquinnah resident who asks why doesn’t he just go to Squibnocket Beach and leave the town alone, Mr. Callagy said, “They could say that, but I am paying taxes up there.”