The Trustees of Reservations are taking a town board to court for a recent decision that requires the beach managers to get a permit for a practice they’ve been allowing for decades.
In Massachusetts Land Court, the Trustees are appealing a zoning board of appeals decision from June 12 that requires them to apply for a new special permit to continue allowing oversand vehicle access on Chappaquiddick beaches. The board made its decision after an original permit from 1990 could not be located in town hall.
“The Trustees are committed to doing everything we can to keep the beaches open for the public to enjoy until a resolution is reached,” the managers said in a statement announcing their intention to appeal.
The appeal is just one thread in an ongoing dispute between Chappy homeowners and beachgoers, the Trustees, and the town regarding access of over-sand vehicles on Chappaquiddick beaches.
Earlier this year, a private landowner at Cape Poge on Chappaquiddick, Victor Colantonio, requested Edgartown zoning inspector Reade Kontje Milne enforce a special permit and order a cease-and-desist against the Trustees for what he deemed an intensification of activities on the conservation organization’s Chappaquiddick properties. Milne declined Colantonio’s request, citing a lack of information, and pointed out the town’s planning board had approved a special permit in 1990. However, the special permit itself could not be located.
Colantonio appealed to the zoning board of appeals, who supported Milne’s inaction, but decided the Trustees — because the actual special permit couldn’t be located — would need to resubmit an application to the planning board by mid-July. According to the zoning board’s order, the Trustees would have to cease operations at the Cape Poge area if they failed to apply for a new special permit.
In a statement, the Trustees argued the zoning board’s order was “unreasonably vague” and “does not specify what, in particular, requires a special permit.” Additionally, the Trustees say the order was not filed by the town until June 26, which provided “insufficient time” for the conservation organization to meet the zoning board’s deadline of July 12.
“The Trustees are in full compliance with the town’s zoning bylaws, including the Cape Poge DCPC,” the statement reads in part, referencing the advisory committee meant to propose guidelines for managing Cape Poge. “It is undisputed that 34 years ago, the Trustees applied for and received special permit authority, but through no fault of the Trustees, the town apparently failed to issue a written document that the Trustees could record.”
The Trustees say they will continue working with the Edgartown planning board to receive clarity on what requires a special permit moving forward.
Advocates for public beach access applauded the Trustees’ decision to take the town zoning board to court.
Martha’s Vineyard Beach Access Group, also known as MVBAG, said in a statement it fully supports the Trustees’ legal action against the zoning board.
The group stated they felt the zoning board, particularly chairperson Martin Tomassian, had a “limited understanding” of the purpose of the special permit being requested, and the “laws, regulations, and guidelines governing beach management and public access.”
Additionally, the group stated, “Chairperson Tomassian’s attitude toward the community made us feel marginalized and irrelevant to the ZBA’s decision.
“Ultimately, the ones most affected by these decisions are not TTOR, but the people who simply ‘want to go to the beach,’” the statement reads in part. “We are hopeful that the legal action will prompt the town and TTOR to come together and focus on solutions that best serve the entire community, like the [reinstallation] of the stairs at Wasque. In other words, ‘enough is enough.’”
Patrick Paquette, former president of both the Massachusetts Striped Bass Association and the Massachusetts Beach Buggy Association, issued a statement saying Edgartown had “unfortunately chosen sides in the ongoing beach access dispute” between the Trustees and private landowners.
“The recreational fishing and beachgoing public are already experiencing a loss of access to Wasque Point due to excessive red tape related to the Wasque stairs,” his statement reads in part. “Now this anti-access group of private landowners is attempting to shut down all beach access using any town board they can influence. The recreational fishing community is accustomed to these ‘not in my backyard’ battles, and we applaud TTOR for drawing a line in the sands of Chappaquiddick by appealing the two recent Orders of Condition, and taking this gross overreach of local authority by the zoning board of appeals to court.”
All the zoning board members, and Colantonio, were listed as defendants in the suit.
When reached by the Times, Colantonio said he was not aware of the lawsuit.
The zoning board chair, Tomassian, declined to comment.
This tiny group of egregiously entitled Cape Poge landowners who are attempting to dismantle public access to public beaches on Chappy have catastrophically miscalculated the will of “The Masses” (the condescending term used by one Cape Poge obstructionist to describe us common folk who simply want to go to the beach). Their unconstrained self-interest has resulted in considerable embarrassment for them. Why do they persist in this shameful cyclone of nuisance? They do so in a brazen attempt to steal a beach from the public, with their goal being to establish a private playground for their exclusive use. Thankfully, we live in a country which respects rule of law and promotes common decency, and thus this shameful plot by a tiny gang of conspirators will not stand.
I wonder if the recent decision by the Supreme Court which weakens federal regulators by overturning the decades-old Chevron decision comes into play here.
Just a couple questions:
1. Doesn’t one only own to the mean high water line, leaving all land waterward of that in the Public Trust?
2. Aren’t there minutes of the meeting still in the Town archives from when the Special Permit was granted?
I sure do miss the Trustees jeep and lighthouse tour.
A Mozian Orange, CT
The situation you describe in point 1 is true virtually all states, but in Massachusetts, since the 1640s, ownership extends to the mean low water line, with limited exceptions for “fishing, fowling, and navigation.” There’s a useful write-up here: https://www.mass.gov/info-details/massachusetts-law-about-beach-rights
This seems like a lack of reporter understanding of governmental processes in this article. I don’t understand how a special permit could go missing…. maybe in one Board’s file but not from the Town Clerk’s records. The reporter should have dug more deeply and sought the records from the Town Clerk…as one would imagine the Building Inspector would. Special permits are typically recorded with the Town Clerk to start the clock on an appeal and then at the Dukes County Registry of Deeds after the appeal period has run and the permit becomes effective. But, the Trustees, as applicants in 1990, should have retained and should present a copy to prove their case. The Town Clerk should have the signed formal special permit decision. For clarity and a proper bit of journalism, I would have thought the editor would have required the reporter to seek out the missing documents as part of the report from the places where a local reporter and editor would need to know as good sources of primary materials. If there is no evidence of the Special Permit, that indeed would be a serious cause of concern given the governmental requirements under the statutes.
Rich, just so you know, East Beach is actually mostly privately owned and the Cape Pogue landowners have an easement by necessity across that Beach to access their homes…it’s the only road home for them. The use of the Beach otherwise by “folks who just want to go to the Beach” is by permission of those who own East Beach or those who control the access points… Dike Bridge and by way of Cape Pogue Pond (which, thanks to all the party boats and damage to the ecosystem by the gut has likewise been restricted by the Harbormaster regs). There is much more to this dispute thann has been reported….
Hi Ana
One Cape Poge landowner filed an injunction to disallow OSV access on Cape Poge three years ago. That motion was dismissed by Judge Speicher in Massachusetts Land Court in 2022. Judge Speicher said “there was no evidence to show that the Trustees of Reservations had exceeded its long-held right of access to an unpaved track in the Cape Pogue Wildlife Refuge that cuts across two parcels of privately owned land”. You would think that this sober dose of reality would slow this tiny band of access abolitionists. But perversely, it seems to have only stimulated their narcissistic agenda. Gigantic wealth transfers from the public to private landowners are not allowed in this state, or any other in our country.
I hope that clarifies this important topic.
Alicia, in Massachusetts, by Colonial statute that continues to have vitality, riparian landowners own to the low water mark subject to only an easement “to fish and to fowl” between the high and low water mark. That was passed to encourage private people to develop private docks to enable the marine commerce that allowed Massachusetts to grow and thrive into what it has become.
To Ms. de Sousa and Mr, Van Roper,
Thanks for the information/clarification about shoreline ownership. I appreciate it.
A Mozian
The sheer beauty of OSV tracks in the sand must be maintained…
No Albert, the sheer audacity of beach theft must be prevented.
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