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Falmouth wall divides land, sea, neighbors

Access, erosion issues split beach community

Falmouth residents say a stone wall is blocking deeded shoreline access.

Sherry J. Martin

Falmouth residents say a stone wall is blocking deeded shoreline access.

FALMOUTH — For generations, a rocky ribbon of beach on Buzzards Bay was considered communal by ­Sippewissett residents, a precious slice of the Atlantic guaranteed for those in the century-old subdivision not lucky enough to live right on the water.

But in the last decade, residents say that access has been eroded, not by the encroaching ocean but by a few wealthy homeowners trying to protect waterfront properties with new walls.

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One imposing stone wall and a ­related structure have become a flashpoint for residents who see them as a symbol of some landowners’ aggressive actions that have blocked access to the sea. The rocks swallowed much of the narrow shore, and now residents say they have to clamber 15 feet up to walk on top of the barrier.

“This is common property; it is an amenity of this neighborhood we all bought into when we bought our properties,’’ said Kenneth Foote, a ­Sippewissett resident who joined neighbors in what has become a six-year battle to ­regain their shore access. ­“Because of the various constructions and dumping of rocks, it is not even possible to walk on the beach anymore.”

A Globe review of documents — including property deeds, minutes and videos of public hearings, correspondence, and old marketing materials — and interviews with land use lawyers provide strong evidence that the residents have a valid complaint. They suggest that the wall never ­received the proper permits to be built the way it was and that it is indeed blocking residents’ deeded access.

But until recently, Falmouth officials either ignored residents or said the wall had received all necessary approvals. The town manager told the Globe the matter was largely a private property dispute.

Disagreements over waterfront access are not just a ­Sippewissett story. They have long been sources of controversy from along Maine’s rocky shoreline to the flat, sandy beaches on Cape Cod. Many coastal specialists say they ­expect to see more conflict stemming from erosion and rising sea levels caused by climate change, which could shift property boundaries into public tidal lands.

Few battles rival that in ­Sippewissett. The community of about 200 lots dates to the late 1800s and early 1900s, when Cape Cod beaches began to beckon to city dwellers. It and other beachfront subdivisions created at the time often gave back-lot owners access to the beach through easements, common ownership, or rights of way. As time passed, deeds changed hands, some new water­front landowners began to argue that they alone had the right to the beach in front of their property.

The cases sometimes end up in court. This July, for example, the state Appeals Court upheld a land court decision that said a group of Hyannis back-lot owners had the right to use a beach waterfront owners claimed as their own. Yet in a 2008 case, a Massachusetts court ruled the opposite, that back-lot owners in an Eastham subdivision did not have the right to use the beach in front of a resident’s house.

The Sippewissett controversy began around 2003, when back-lot resident Michael Eder, a senior engineer at the Woods Hole Oceanographic Institution, noticed a new stone wall, called riprap, in front of 43 Gunning Point Road while on a walk.

By 2004, he became interested enough to inquire about the structure and was told by town officials the wall had received proper permits. But Eder was unconvinced, and his research over the next several years persuaded him and other residents that the wall was not permitted correctly and that it extended into the strip of shore that back-lot residents did not own but were allowed to use.

The residents asked numerous town officials and departments to intervene, but they did not. The building inspector failed to respond to residents’ request to investigate the matter for four years. The inspector, Eladio Gore, referred calls from the Globe to town manager ­Julian M. Suso.

Suso said in an interview, “fundamentally, it’s a disagreement on private property.”

While the town declined to get involved, the state did. Residents, with the help of a local politician, called state environmental officials, who determined in 2011 that the wall was on public tidal land. The state ordered the current owners, who did not build the wall, to not only provide access to the back-lot residents, but to all members of the public. Yet wooden stairs to enable residents to get up the wall are still unfinished.

Even if the stairs are completed, a nearby line of rocks that juts into the ocean, known as a groin, would make access difficult.

JULIA CUMES FOR THE BOSTON GLOBE

Some residents of Falmouth’s Sippewissett region have been fighting over beach property rights since a wall was built by a wealthy landowner about 10 years ago.

The current owners’ lawyer, Robert Ament, has said in public hearings that his clients, Gail and James McCready, do not own the groin. Residents say it appeared after the wall was built, and historical photos ­appear to bolster their claim.

Michael Meehan is the former property owner who built the stone wall. He said that he believed the wall was built within the confines of his property and that there had been a previous wall there but it had “gotten beat up” from storms.

While residents would sometimes walk or fish from the rocky shore, he said, “You had to be really agile . . . Even before we rebuilt the wall the water would come up to it during high tide.’’

To be sure, the Sippewissett issue is confusing. Over time deeds changed hands, and language, some of it vague, was added into some and removed from others. Some deeds, like Eder’s, appear to refer to only a small neighborhood beach, ­although a Globe examination found earlier deeds that spelled out residents’ right to use “in common with others” the shore along Buzzards Bay.

Land use specialists say that what is important is the original deeds’ language and how the subdivision was designed.

“All these communities were created with the beach in mind: the small lots, the access points to get to [the beach]. . . . The residents’ right is implicit,” said Edward Englander, a Boston real estate lawyer who represented back-lot owners in the Hyannis and Eastham cases. He did a cursory review for the Globe on the Sippewissett issue. “Here, you also have deeds referencing the beach.”

One of the original plans included back-lot lines, leaving a clear ribbon of shore along the back of properties on Gunning Point Road. Many early deeds spell out easement rights along Buzzards Bay for residents of the subdivision, with no reference that the rights are restricted to those in a specific section.

The strip of shore the residents claim access to, along with other rights of way and streets in the subdivision, was sold in 2010 to a conservation group that specifically preserved residents’ right “to use the beach on Buzzards Bay” as described in the original plan, according to the deed of sale.

But the deed for 43 Gunning Point Road is in direct conflict with this document. In 1998, during the sale of the property to Meehan, the deed at the Barnstable County Registry of Deeds was changed to extend the property line to Buzzards Bay, contrary to earlier deeds and plans clearly showing the back-lot line. A prohibition against building any structure on the beach also was removed.

It is unclear who changed the deed, but Ament’s law firm is listed as recording it with the county. Meehan said he was unaware the deed was changed.

Sherry Martin, who sold Meehan the property her family had owned for most of the last century, said she was unaware of the deed changes, too. She said her father had put in about 20 to 30 feet of stones in the 1960s along the shore, but it was never a continuous stone wall. And she said there was no groin either.

Martin said the property line always ended before the shore. Because it was rocky, it was not attractive to beach tourists, “but nature lovers and respectful visitors were always welcome,’’ Martin wrote in an e-mail to the Globe. She said her family always felt it a “privilege and duty to protect that delicate area between land and sea.”

Lately, the back-lot residents are meeting with more success: The Conservation Commission is looking into the issue.

And the building inspector has finally issued a decision. He denied the residents’ request, but they are appealing.

But the wall at 43 Gunning Point Road is not their only concern. They are also upset about another “reconstructed” wall nearby, and another proposed further down the shore.

“It goes on and on,’’ said ­Eder. He and other residents say the structures change the dynamics of the shore, starving other areas of sand and hastening erosion.

“At first, I just wanted to make sure we got access over the wall,” he said. “But now? I want them torn down.”

Beth Daley can be reached at bdaley@globe.com. Follow her on Twitter @Globebethdaley.
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