Healey proposal could open Vineyard great pond beaches

One party of a two-decades-long legal dispute on the Island just received the support it always wanted through Gov. Maura Healey’s $3 billion environmental bond bill, filed last month, which could also open up private beaches along Island great ponds to the public.

First reported by the Boston Globe, Section 33 of Senate Bill No. 2542, also known as the Mass Ready Act, would redefine what makes a beach public near great ponds in Massachusetts, while also upending centuries-old real estate law, and possibly leaving the state exposed to expensive litigation, according to local attorneys. 

It would, however, make at least one resident of the Island very happy. The bill language imitates sentiment used by Richard Friedman, a Boston real estate mogul who owns a house on Oyster Pond in Edgartown. Freidman has tried to make a barrier beach across the pond public, after fighting his neighbors over ownership rights for years.

Healey’s bond bill language says that where natural processes move a barrier beach below the historic water line of a great pond, then that portion of the beach will be public.

This bill, if passed, would make waves on the Island, and for residents along great ponds.

Friedman bought his house in the 1980s, in which he thought the deed gave him rights to a barrier beach between a great pond and the Atlantic. His neighbors disagreed, and years of litigation ensued. This issue was argued in the land court, the Supreme Judicial Court, and the appeals court, the last of which, in a final decision issued on Sept. 17, 2024, upheld the land court’s finding.  It also found that a private owner, rather than the commonwealth, owns the beach, which sits on the bed of a former great pond, according to Stacie Kosinski, an attorney for a trust that’s fought Friedman in court, and who spoke in opposition to Healey’s proposal during a State House hearing on July 14.

“It is fair to say that if Mr. Friedman had an ownership in the barrier beach at Oyster Pond, he would surely not be instigating this legislation purportedly on behalf of the public,” said Eric Peters, a member of the Flynn family and the Pohogonot Trust, which has been involved in litigation with Friedman over beach ownership, in a letter to the Joint Commission on Environment and Natural Resources, which held the hearing last week. Peters has been an attorney in Edgartown for more than 40 years.

For some time, Friedman claimed private ownership. In 2016, however, he changed his tune, and argued that the land was actually public, as erosion, storms, and sea levels shifted the beach north and into the pond. The commonwealth owns the waters and land under the great pond, but this measure throws into question what happens when land accretes, or grows, on the pond side of a barrier beach, and when once-submerged land under a great pond is now a dry part of the shoreline.

The legislation is seemingly a win for public beachgoers; however, in many of these areas on the Island, beach access won’t really change, because people would often still have to trespass on public property in order to reach these beaches, or travel by boat.

“This section does not and will not build resilience for Massachusetts communities or serve the public interest,” Kosinski said in the hearing. “Instead, it would undermine land rights, upend settled law, and create issues of title.” 

Oyster Pond, and Jobs Neck Pond, which also borders the controversial beach, are “great ponds,” and considered public resources. There are 16 great ponds — any pond or lake that is more than 10 acres — on the Island. There are more than 200 properties on the Vineyard alone located on barrier beaches, and similar parcels on Nantucket, Cape Cod, and Plum Island, Kosinski said in the hearing.

One property owner who could be affected is the former president and summer resident of the Island. “The many private owners of barrier beaches adjoining great ponds on Martha’s Vineyard include Barack and Michelle Obama, who hold an easement over a parcel of private barrier beach at Edgartown Great Pond near their summer home,” Peters said in his letter.

“In areas where natural processes, with or without human intervention, have caused the landward or lateral movement of a barrier beach into an area below the historic low waterline of any great pond, the portion of the barrier beach relocated into the former bottom of the great pond shall be and remain in commonwealth ownership in perpetuity,” the measure says.

A barrier beach is defined in the bill as a “narrow, low-lying strip of land” that’s separated from the mainland by a narrow body of water or marsh system. 

But lawyers argue that even if this measure passes, the commonwealth would be subjected to years of expensive litigation.

“If Section 33 is enacted, this bill will have the unintended consequence of forcing the commonwealth to defend countless lawsuits at a cost of hundreds of millions of dollars, at a time when the state has so many other needs to support the well-being of its citizens, like the other parts of this bill,” said Brad Keeler, another member of the Pohogonot Trust, in the hearing.

Multiple lawyers spoke to The Times about how this measure would expose the government to eminent domain claims for takings, which allow the government to take private property for public use, but require property owners to be justly compensated for the loss.

“Clearly, Mr. Friedman’s trying to make good on the threat he made to my family and a handful of our neighbors 15 years ago when he sued us, and said he’d make the beach public if he lost the case, which he did,” Keeler added.

Those in opposition to the bill also referenced an amicus brief Gov. Healey wrote while serving as the commonwealth’s attorney general in June 2018, which gave ownership of re-emerged lands above the historic waterline to the abutting property owners.

“I ask why is the governor reversing a position on this matter,” Keeler said to the joint committee.

Friedman annually contributed $1,000, the maximum amount an individual can give in one year, to Healey every year since 2016 besides 2020, according to campaign finance records. The Globe reported that after Healey won a second term as attorney general, Friedman contributed to her 2019 inaugural committee, and that the developer hosted a fundraiser for her last Sunday at his home in Edgartown.

A spokesperson for the governor said political contributions don’t influence policy decisions. “As someone who grew up on the New Hampshire seacoast, Gov. Healey has always felt strongly about increasing public access to beaches and great ponds,” the spokesperson said. “This provision, which is similar to one previously proposed and advanced by the legislature, is about making sure that everyone has access to great ponds and barrier beaches across the state. This is all the more important as Massachusetts faces increasing frequency of extreme heat.”

Those against the measure argue that the state faces much more important environmental issues than litigation over land near great ponds, and that the passage of the bill could potentially impact more than just one property.

“Some might wrongly dismiss these concerns as merely a dispute between Mr. Friedman and the Pohogonot Trust,” Peters said in his letter. “In truth, Mr. Friedman brings his battle against hundreds of owners of barrier beaches by great ponds in Massachusetts, which will cause them harm at great public expense, all for his personal gain.”