Federal judge says property does not equal Philbin Beach sticker

Philbin beach is beautiful but deserted in the winter. — File photo by Tim Johnson

An Aquinnah land owner and Chilmark seasonal resident is not entitled to a beach sticker to Philbin Beach, a federal district court ruled last month. Renters and inn owners can breathe a sigh of relief and keep the beach towels handy.

In a lawsuit filed on October 6, 2010 in U.S. District Court in Boston, John M. Callagy of Fairfield, Conn., a partner in Kelley, Drye and Warren, an international law firm based in New York City, claimed the town had violated the U.S. Constitution and the Massachusetts Unfair Trade Practices Act when it refused to give him a beach sticker.

Mr. Callagy, who owns land in Aquinnah but no house, claimed that as a taxpayer, he had 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 argued.

Ron Rappaport, Aquinnah town lawyer, argued there is a difference between a resident, someone with a residence, and a taxpayer with a piece of property. Mr. Callagy no longer met the definition of a resident, Mr. Rappaport said at the time Mr. Callagy filed his lawsuit.

In a 30-page decision handed down on July 27, Boston District Court Magistrate Judge Marianne B. Bowler rejected all of Mr. Callagy’s arguments.

On Monday Mr. Rappaport told The Times the town was left with no choice but to go to court.

“It’s unfortunate that the town found itself in this type of dispute but the deed was clear and an exception could not be made for one person,” Mr. Rappaport said. “The town had to stand on principle and we are glad we prevailed.”

In a telephone call Monday from his New York office, Mr. Callagy said he disagreed with the town’s position and when he could not come to an accommodation he asked the court to decide the matter. “I asked the court to make a decision and the court made a decision,” he said. “I am disappointed with the result.”

Asked if he intended to appeal to a judge, Mr. Callagy was noncommittal. “I wanted to get a determination of it,” he said. “I got a determination of it.”

Both parties filed requests for summary judgment, which leaves it to the judge to rule based on findings of law, and not oral arguments by the plaintiff and defendant in a trial setting.

Summary judgment is appropriate when the record shows, “there is no genuine issue of material fact, and the moving party is entitled to summary judgment as a matter of law,” according to the ruling.

The deed restrictions that came with the gift of a beach to the town and the town’s enforcement of those restrictions were at the heart of the lawsuit.

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.

Mr. Callagy, a longtime seasonal resident, is familiar with Island beaches. From 1986 to 2007, he owned a house at the end of Ox Cart Road in Aquinnah that overlooks 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 wanted 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 filed a lawsuit.


In a six-page complaint filed in US District Court in Boston on October 6, 2010, 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.

Among other arguments, the lawsuit drew 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 argued 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 asked 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 asked 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 asked 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.”

Not so fast

J. Holladay Philbin of Boca Grande, Florida, gave to the town a section of beach, formerly known as Moshup Beach, and land used to create a parking lot. Recorded on April 2, 1968, the deed 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, “No commercial activity or establishment may be undertaken or permitted on the granted premises at any time, except that the said trustee may make a reasonable charge for parking to defray some or all of the cost of maintaining, policing and improving the granted premises.”

In his lawsuit, Mr. Callagy claimed that the town provided selective enforcement. Judge Bowler said the issue of selective enforcement depends on the meaning of the words “seasonal resident” derived from the intent of the grantor, Mr. Philbin.

Relying on Black’s Law Dictionary, Ms. Bowler said, “These definitions do not specify what amount of time is necessary to be considered a resident. They do, however, limit the term ‘resident’ to a person who lives or has a home in a particular place.

“Seasonal is defined as of or relating to a season. Applying these common or fair meanings to the deed as a whole, the deed restricts use of the property to individuals who permanently or seasonally live in or have a home in the Town of Aquinnah and the accompanied guests of such individuals. Plaintiff, who neither lives in nor has a home in the town, is therefore not a permanent or seasonal resident within the meaning of the Philbin deed.”

Mr. Callagy argued that the town had abandoned the deed restrictions by allowing short-term renters and inn guests, people not seasonal residents, to use the beach.

The judge said that Mr. Callagy had failed to show the town waived the deed restrictions. “Plaintiff fails to show that the character of the beach has been so altered by allowing short term renters, guests or pedestrians to use the beach as to defeat the original purposes of the Philbin deed to make the restrictions unenforceable,” the judge said.

And the argument that an exception should be made fell flat. “Additionally, plaintiff’s argument that he should be given a parking permit due to the arbitrariness of the deed fails because case law does not support his contention that trustees can expressly violate the terms of dedicated property,” the judge wrote. “Rather, property dedicated for a particular public purpose cannot be used in a different manner in violation of the trust unless the property is taken under eminent domain.

“Plaintiff’s request to receive a parking permit even though he is a nonresident would expressly violate the deed’s resident requirement.”

The judge said that if Mr. Callagy thinks the town has violated the terms of the deed restrictions, the remedy is not to throw the restrictions out but to enforce them.

“If plaintiff believes that defendant violated the Philbin deed restrictions, he should bring suit with nine other taxpayers to clarify what the restrictions are, what the term ‘seasonal resident’ entails and seek to enforce the restrictions,” the judge wrote.

“He could also bring suit in Massachusetts state court under chapter 240 to determine whether or not providing beach access to renters as a whole violates the deed restrictions. Even if defendant misinterpreted the term ‘seasonal resident,’ plaintiff would not be entitled to the relief of a parking permit as that would be in direct violation of the grantor’s intent to restrict non-residents from using the beach.

“In short, defendant actively upholds the restrictions of the Philbin deed through the parking permit application process. While the parking permit application may only address one method of gaining access to the beach, it still serves the purpose of preventing people from other towns from gaining access to use the Philbin Beach.”