The ‘illegal taking’ of Beach Road Beach

To the Editor:

The fundamental flaw in this decades-long denial of the constitutionally protected property rights of the R.M. Packer Co. regarding the commercial use of the property in question is the false claim that this beach is a barrier beach. Nothing could be farther from the truth. The tide, waves, and stormwater surge are all diverted and amplified into this beach by the jetty that creates Vineyard Haven Harbor. This beach is the equivalent of the bowling pins at the end of a bowling alley. This beach is situated directly in line with our most common wind, wave, and storm direction, which bears down on this property constantly. This beach is hit directly with north and northeast storms, in addition to having the tidal flow directed into the beach by the same jetty that creates the harbor.

The view from Google Earth of the harbor shows this to anyone who has open eyes. The result is the destruction of the beach, the pending destruction of a state road, and the destruction of the citizens’ vehicles from driving through saltwater. The effect of the jetty is obvious by looking at the buildup of sand on the north side, or West Chop side, of the jetty and the north side of Beach Road. The jetty creates the harbor; without it the harbor would fill in with sand, which is the whole point of this manmade structure. Not only is the erosion of the beach created by this jetty, the subsequent effects on the natural tidal flow have placed the sand on the north side of Beach Road between the Packer property and the O.B./V.H. Drawbridge. Due to the incompetence of the state and local government, it is now threatening destruction of Beach Road, a state road, and a gas station, which is also owned by the R.M. Packer Co. This is a level of irresponsibility by the state and local government that is unprecedented. This beach must be replaced, and the dunes that have always been there must also be put back to protect the property and the road from high water and waves during storms.

In light of the above information, the R.M. Packer Co. has been denied its right to both procedural due process and substantive due process, as well as fundamental, constitutionally protected property rights under both the 5th and 14th Amendments, and amounts to a taking of the property under the Taking Clause of the 5th and 14th Amendments. As such, the R.M. Packer Co. is due just compensation for the property, as well as interest from the time this taking is determined to have first occurred. To my current understanding, that is about 20-plus years, though the property has been owned since the 1950s. 

At least two Supreme Court decisions have held that these types of out-of-control regulations by the state and local governments, which have prohibited the use of and maintenance of a person’s property, categorically constitute a taking. In one decision, the court held that regulations, especially unreasonable regulations that deprive a person of all ability to develop or utilize his or her property for any economic purpose, go too far and require just compensation as well as interest since the time of the taking. When one considers that this absurd denial of the ability to maintain and protect the property from the effects of the installation of the jetty for the creation of the V.H. Harbor over the past 20-plus years, to the point of it being eroded away into nonexistence, and allowing this situation to now threaten a state-owned public roadway, a gas station, and other privately owned businesses along this road, due to a manmade structure, the jetty that creates the harbor itself, is a level of incompetence that the federal government should come down on very hard. The Takings Clause exists for the public benefit, and is to be used only when significant public benefit can be justified. In this case the public is being harmed by the actions of the state and local governments by this abuse of the Takings Clause imposed by the denial of substantive due process to R.M. Packer. See: Knick v. Township of Scott, Pennsylvania. 

This denial of constitutional protections is the same issue as the abuse of Ernie Boch’s property rights a little way down the same road. My hope is that this suit is fought and won by both men. If the state and local governments can deny these two men their constitutional rights and protections, those rights can be denied to anyone, and often are. 

If there are federal highway funds, or other federal funds, being used on Beach Road, a state road, and the future planned multiuse path, this situation is ripe for a False Claims Action against the state government by the federal government. This situation is a gross denial of the constitutional protections of the property owner, gross fraud against local taxpayers and citizens of the town of Tisbury, the Island of Martha’s Vineyard, the state, and the taxpayers of the United States of America. 

Donald Muckerheide
Oak Bluffs