H254 could transfer privately-owned land to the public
By Gerald Rogovin
In the midst of this hot summer weather, few Cape Codders can be expected to remember last December's 13-inch snowstorm and 10-foot high tides driven by gale force winds that battered coastal properties, and forced evacuations away from dangerous flooding.
But longer-term concerns remain. The Cape has 568 miles of tidal shoreline, all of it vulnerable to those storms, rises in sea level and flooding.
A bill in its third reading in the Massachusetts Legislature could go to the House floor this year and if it gets a favorable review, it may offer some protection to our coastline. But it may also affect future ownership of some barrier beaches on the Cape and Islands, moving to public ownership land that has been held privately for years.
The bill, H254, is technically an amendment to Chapter 91, the law governing navigable waterways in the state. It relates to barrier beaches that separate ponds, particularly Great Ponds, from the ocean. Many of these beaches are privately-owned. They are being relocated inland as they are being eroded on their seaward side, creating a new beach in an area that was once covered by a pond.
State Representative Frank I. Smizik (D-Brookline), thinks his bill will insure that if nature effectively takes a property, the owners could not move their claim to a new beach formed by the same natural process on what is already state-owned land.
The question of who owns what in such an event has a group of landowners on Martha's Vineyard in a swivet. Calling themselves the Great Ponds Coalition, they have begun to raise money to oppose the bill.
Beach rights on the Vineyard are a touchy subject; almost the entire length of the island's shoreline is privately-owned. Access to private gated beaches is expensive. In a legal
dispute decided in Dukes County Superior Court last year, it was revealed that a single key to an association beach in Chilmark was $415,000.
In a statement issued by a Boston public relations firm, the group claimed that H254 would "dramatically change the common law of Massachusetts as it has existed for hundreds of years."
Cape & Islands State Senator Dan Wolf (D-Harwich) commented that he was awaiting analysis of what the bill would accomplish before taking a position. "That's going on now in both houses of the Legislature. The intent of the legislation is not to wipe out Massachusetts common law now in place. Rather," he said," it is to clarify existing law. Great Ponds and other publicly-owned ponds would remain public, even if a privately-owned barrier beach migrates into the bottom of a pond after a storm or other weather event."
State Representative Timothy Madden (D- Nantucket) took the same position as Senator Wolf. "Until the legislation is vetted by both houses of the Legislature, I will not take a position," he said.
A barrier beach, by definition, is a narrow strip of beach and dune separated from the mainland by a bay, marsh, river or any other water body. The gently sloping beach extends
from the frontal dune line to an offshore sandbar, where waves normally first break. Many such beaches tend to migrate landward when waves break, and carry sand from the ocean side over the beach and dunes to the landward side. The same movement takes place when sand is swept through tidal inlets into the bays, rivers, lagoons, ponds and estuaries behind barrier beaches, according to Andy Walsh, a coastal specialist with the Cape Cod Commission.
Paine's Creek in Brewster, which forms a barrier to Cobbs and Freemans Ponds, is an example. Nauset Barrier Beach in Orleans and North Beach in Chatham are among the Lower Cape's barrier beaches. Those in Yarmouth include Sea Gull Beach, which fronts Lewis Pond, and the Great Island causeway, with Lewis Bay behind it.
The greatest concentration of barrier islands on the mainland are on the Upper Cape, including Waquoit Bay, Little Sippewissett, Chappoquoit, Old Silver, Nobska and Quisset Beaches in Falmouth, Washburn Island, Woodwalk Beach in Buzzards Bay and South Cape Beach in Mashpee. Sandy Neck Beach in Barnstable, at 6-1/2 miles in length, may be the largest on the mainland, according to Park Manager Nina Coleman.
Testifying last May in support of his bill before the House Committee on Global Warming and Climate Change, Smizik acknowledged "a long-established belief that upland properties benefit when privately-owned barrier beaches retreat into ponds, including Great Ponds, when erosion from their seaward side takes place. "By mapping beaches and ponds, which this legislation supports, the movement of beaches into ponds can be detected," he said.
Smizik told the committee that coastal erosion has put some private beaches under water, and caused 'new" beaches to form further inland on public land and in Great Ponds.
Private beachowners, he observed, claim the shifting of the beaches does not affect their ownership. However, Smizik testified, the new beaches are resting atop the public
Click here for the state's official list of Great Ponds.
"So, who owns the land, particularly those in Great Ponds?" Smizik asked the committee. Answering his own question, he said that the public owns them, and can use their full benefits. The state's General Laws define Great Ponds as containing in their natural state 10 or more acres of land. A pond that was once 10 acres, but is now smaller, is still considered a Great Pond. Land that used to be contained in a Great Pond, but is now dry land or a beach, also remains public land, Smizik testified.
"Sea levels will continue to rise as a consequence of climate change," said Smizik. "Stronger, more frequent storms will alter beaches, ponds and coastlines. Our laws need to maintain the public's ownership of land that has always been public. Natural forces and changing weather patterns shouldn't result in the transfer of publicly held land into private ownership," he declared.