Commission Reconsiders Walther Road Stairs Project

 HARWICH – The conservation commission has altered its original position on whether stairs to the beach at 23 Walther Rd. can be constructed on the town-owned property under its jurisdiction. The commission agreed last week to follow a second legal opinion issued by town counsel concluding that the stairs could be rebuilt.
Conservation Administrator Amy Usowski said the question at the May 21 hearing was whether the town can move forward with filing a notice of intent for a hearing to build the stairs. She said the project would still have to meet the requirements of the Wetlands Protection Act and the town’s wetlands bylaw for placement of the stairs over a coastal bank.
Stairs to the beach have existed at the location off and on over the years. Usowski said the winter of 2023-24 generated several coastal storms which washed away stairs to town beaches along Nantucket Sound, including at 23 Walther Rd. 
The property is under the jurisdiction of the commission. In conducting due diligence, Usowski examined the deed to the property that was gifted to the town by Josephine Jenkins. According to the deed, no structures except for a bike rack could be placed on the property.
That language was brought to town officials and an initial legal opinion from town counsel Katherine Klein of KP Law  ruled that stairs should not be built, Usowski said. The select board disagreed with that opinion and sought a second. Amy Kwesell of KP Law delivered the opposite opinion, ruling that stairs could be built. 
Matt Sutphin, whose family once owned the property and sold it to Josephine Jenkins in the 1950s, has taken issue with the second legal opinion. He told the commission that when Jenkins gifted the property to the town she did not want a public beach there. She stipulated that there be no improvements to the property. A bathhouse was removed while a set of stairs remained, he said, asserting that Jenkins‘ intention was for the property to remain in a “raw state.” He said the push from people in the neighborhood to construct the stairs would mean that her intentions will not be honored.
If the provisions of Jenkins’ gift are not honored, others will not trust the town to do so with other gifts, Sutphin said. “There seems to be a principle here. The select board is more interested in politics than principle,” he said.
Several residents in the neighborhood spoke about beach erosion and public safety concerns. Bernadette Waystack said while the cabana was removed, the stairs were not, creating a precedent for the stairs. When Hurricane Bob hit in 1991, the town replaced the stairs. Waystack said that last year, the property next door had granite stone stairs to the beach built on the coastal dune.
While there are signs warning people not to use the path through the property leading to the beach, Waystack said those signs won’t stop people from accessing the beach, and there could be erosion and safety issues. She said the stairs were likely not mentioned in the deed because the stairs were not considered a structure.
“I frequently walk that beach, and people are climbing on that beach and there are no rails and you have erosion as the sand falls down,” said Neel Road resident Karin Larson. “It’s going to be a total wash out there.” 
She said families in that area pay high taxes and would rather access the beach there than walk down to the Neel Road beach access. Given the high tax dollars, they deserve the access they had when they bought their properties, she said.
Katherine Tran said the deed is clear that the property is to be used for recreation.
Sutphin responded that Jenkins gave the property to the town for passive recreation. “It doesn’t mean building stairs, it means living raw,” he said.
There is currently a sign at the head of the path to the dune reading, “Access to the beach via this path is temporarily prohibited due to a hazardous, eroding coastal bank. The town of Harwich is currently exploring the options to provide safe access. In the meantime, public access to the water is allowed via the stairs at the end of Neel Road.” The sign was erected by the select board and conservation department. 
The select board has accepted a $10,000 gift from Walther Road resident Timothy Richie to fund the engineering work and stairs design for reconstruction.  
“I love the legal profession,” said commission member Wayne Coulson of the conflicting legal opinions issued by KP Law. He supported the second legal opinion approving reconstruction to accommodate people in the neighborhood.
 Commission member Vivierine Mulhall-Maguire said she was glad to see the second legal opinion. The present conditions are dangerous for people using the path to get down to the beach, she said, adding that the legal opinion points out the stairs existed in 1986 when the gift was made. 
 Commission member Sophia Pilling said she stood by the commission’s original decision based on the initial legal opinion, calling the second opinion “a little confusing.” 
 “If she wanted a beach, she would have specified that,” Sutphin said. “She did not, she specified raw ground with a bike rack. It gets down to the deed. You did honor it the first time around, until the select board put the arm on you.”
The commission voted 3-1 to support the second opinion, allowing the town to move forward with a notice of intent to construct the stairs.