ORLEANS — Once you step onto the sand at the town’s Tonset Landing, it’s less than a stone’s throw to your left to two small signs reading “End of Town Property.” It’s a gentle reminder that the right to walk the tempting shoreline trail ahead derives from the kindness of the owners of the homes with the million-dollar views.
The path passes the end of the Orleans Conservation Trust’s Woods Cove Conservation Area trail, where a sign notes the surrounding private land and urges respect for owners’ rights. Nevertheless, the OCT property provides a convenient and lovely route to the Tonset parking lot without walkers having to double back along the water.
All that is fine with Weeset Point property owner Stephen Brodeur, as long as folks understand that, as guests, there are a few rules they have to observe. For example: don’t sit on someone’s porch unless you’re invited. Keep your strolls to the daytime, and stay on the path. Don’t let your dogs run free, and pick up after them.
For the sake of his neighborhood and other coastal enclaves in town with similar problems, and after extensive email exchanges with town officials, Brodeur asked attorney Sarah Turano-Flores to write to the select board about “creating a public-private partnership” to set things right. Elements would include education of the public and town staff about coastal property ownership rights, better signage at town landings regarding same, “consistent application” of beach rules and regulations at town landings, more involvement by the conservation commission in protecting environmentally sensitive coastal zones, and enactment and enforcement of stricter dog waste regulations.
As Turano-Flores explains, Colonial ordinances in Massachusetts ensured that property rights extend to mean low water, thus including exposed flats at low tide. There is no public right of passage except for those fishing (including shellfishing), fowling (hunting game), and navigating. Brodeur and his neighbors permit walking but want it made clear that is their choice. What’s more, Brodeur has noted elsewhere, the path on his property and many others like it around town are upland of the mean high water mark itself, further confirming their private status.
Turano-Flores pointed to several places in town documents, including a coastal access guide, that reference “footpath access” across private properties, including one route from Tonset Landing to Town Cove that, she wrote, would require a walker “to traverse over more than twenty private properties.” Brodeur wants the town to remove such discrepancies.
The way the town manages its landings next to private properties “contributes to the problem and cannot be understated,” Turano-Flores wrote. Municipal signage at the limits of town property should “clarify the public rights along the shoreline, and instruct the public that they are not entitled to go beyond that point unless it is with the private owners’ permission.” The markers should also reiterate the town’s rules and regulations.
In a footnote, Turano-Flores argues that by failing to post proper signage, “the town has created an attractive nuisance that invites trespassers onto the neighboring private property,” and she cites a case from 1988 that found “a public officer may be ordered to abate and remove the nuisance at the expense of the town.”
“What situation would get us to that cliff that I don’t want to jump off of?” Select Board Chair Kevin Galligan asked Town Counsel Michael Ford during the board’s review of the letter April 21. Ford, who had described the letter as “comprehensive and meant to be proactive,” took issue with the citation, saying the case had been overturned. “It’s no longer good law,” he said.
The objections raised about management of the landings “seem to be in the nature of regulations, signage, and education, all matters of planning and policy,” Ford said. “Case law is replete with cases that hold matters of planning and policy are discretionary decisions. Therefore, the town is immune under a torts claim.”
That said, board members found most of Turano-Flores’s letter on behalf of Brodeur reasonable.
“He’s not asking the town to patrol with staff or maintain a physical presence,” member Mark Mathison said. “What he’s asked for is that erroneous information on town websites be taken down… He feels education is the key to this whole thing… He’s not looking to stop people and put up a fence. He’s looking to have people know and understand what their rights are and what his rights are.”
Member Mefford Runyon, who said Brodeur was being “pretty generous,” said the town could limit parking at popular landings to residents. “If the properties are getting overused or over-loved, we need to find a way to reduce usage,” he said.
“There’s a role for the conservation commission,” Galligan said, citing the letter’s concern that walkers – sometimes even cyclists – are going off the path and trampling beach grass. He proposed organizing a working group including himself, Kelly, Ford, Conservation Agent John Jannell, Health Agent Bob Canning, and Natural Resources Manager Nate Sears to “bang out some easy-to-do items and be responsive within the bandwidth of our abilities.” Colleague Cecil Newcomb, who said another coastal area, Kent’s Point, had been “totally destroyed from what it was originally because of non-action,” advised adding Police Chief Scott MacDonald to the group.
Kelly said he’d set something up for the first week in May with the idea of determining “what is the town in position to do, but not raise expectations we can’t meet.”
After watching the video of the meeting, Brodeur wrote in an email that he was “hopeful that the town follows through and takes meaningful action towards protecting critical resource areas such as those around Weeset Point. As select board member Cecil Newcomb points out, inaction at Kent’s Point resulted in that area being ‘totally destroyed.’ We can’t let that happen again here or at other critical resource areas around Orleans.”