Cape Poge trail uncertainty raised in Land Court

Uncertainty was raised by a state judge on which trails on Cape Poge correspond to 19th century easements in an ongoing lawsuit over where drivers can publicly access Chappaquiddick Island’s northernmost territory. 

That question over the easements, which is the permission granted to use a part of another owner’s property, remains unresolved after a virtual Massachusetts Land Court hearing on Tuesday, and the attorneys for Victor and Dawn Colantonio, Cape Poge property owners who sued the Trustees of Reservations, will return for a hearing in Boston on Sept. 22. 

The hearing is part of a case in which Land Court Judge Sarah Turano-Flores ruled on August 11 that the Trustees violated the easement rights of the Colantonios and that the nonprofit organization had overburdened Cape Poge through the sale of oversand vehicle permits, which allows cars to traverse the wildlife refuge. However, Turano-Flores also deemed some parts of the case required a trial due to a lack of conclusive evidence. This includes the Trustees’ claim that it’s used a path that cuts into Colantonio land without complaints for 20 years — conditions that could give the conservation organization right of use to the area if the judge sides with them — and whether the organization was a nuisance or even trespassed onto the Colantonios’ properties by exceeding the scope of a 1897 easement. 

The Tuesday hearing related to a renewed preliminary injunction filed in July by Denise Chicoine, the attorney representing the Colantonios, asking the court to order the Trustees be limited to 30 vehicles per day on the 1891 easement. This would drastically cut into the state Department of Environmental Protection (DEP) order in April meant to establish parameters for oversand vehicle access on Cape Poge, which stemmed from appeals filed by the Trustees and Chappaquiddick residents who were dissatisfied with the limits set by the Edgartown Conservation Commission in May 2024. The state agency’s order allowed up to 275 vehicles per day in the area, although the Trustees have noted this amount would vary based on beach conditions. 

Chicoine argued that the request doesn’t call for an outlaw of oversand vehicles, but it preserves the way the 1891 Decree was meant to be upheld, which divided 17 lots among 11 proprietors, 10 of which are currently owned by the Trustees. According to Chicoine, the Colantonios are seeking “enforcement” starting from the northern boundary of parcel 32-2, which the Edgartown’s GIS map shows to be a little above the strait near Tom’s Neck Road. Chicoine also said the Trustees’ sale of oversand vehicle permits leads to a “renewed frenzy” every year, and a lack of clear delineation means drivers go where they see fit, whether the property is private or not. 

She also argued that the Trustees already close their properties when needed, such as shorebirds nesting, so this would not be a “severe hardship,” and that more drivers can head south to Wasque Reservation. 

“The further north you go, the thinner the crowds become,” Chicoine said.

Dylan Sanders, the attorney representing the Trustees, argued that the request seeks to “destroy the status quo,” especially as it is the “height of summer” and the Martha’s Vineyard Striped Bass & Bluefish Derby, when many participants use oversand vehicles to access beaches on Chappaquiddick, is scheduled to start in September. Chicoine said to the latter point that there are “miles and miles of beaches” on the Vineyard that don’t require cars. 

Sanders said that the trail networks have changed over the decades, and cited Chris Kennedy, who formerly headed the stewardship of the Trustees’ Vineyard properties, to argue that the nonprofit changed plans based on environmental factors, not property lines. 

Sanders also said the trail the Trustees use is not the same location as the 1891 partition at the center of the Colantonios’ lawsuit. Rather, it is part of access granted to the Trustees in a 1988 easement. He also argued that it was on the plaintiffs to prove these are indeed the same trails. 

Sanders noted that despite the 275 cars allowed by the DEP order, suggesting the Trustees invite that many vehicles at once was “absurd and hyperbole” and noted only around 50 cars have been in the area on a daily basis since July. He also said the order of conditions on Cape Poge meant they weren’t allowed on any private properties for the first time in history. 

“That’s why we don’t believe the Colantonios risk any irreparable harm,” Sanders said. 

Sanders submitted the opposition to the preliminary injunction over the weekend, so Turano-Flores gave Chicoine until August 26 to respond to it. Sanders would have until Sept. 9 to provide a sur-reply.