PROVIDENCE — Every few weeks over the summer, Michael Rubin would climb down the narrow, twisting staircase into the windowless basement vault at Westerly Town Hall.
It smelled like what it was — a musty repository for yellowing old documents, illuminated with artificial light.
Rubin, a lawyer by trade, was on a mission: He wanted to prove that a 50-foot-wide property along the shore belonged to the public. That involved going into the dark vault in this beautiful beach town and flipping through the stacks of maps and property records.
“Rhode Islanders need to get to the beach,” Rubin told the Globe. “It’s the Ocean State.”
One day in early August, on his second of three trips there, he found what he was looking for: A 1939 map proving, he says, that there is public access to the beach in a spot that locals call Spring Avenue extension. This path on Weekapaug Point, near some parking spots where Spray Rock Road meets the Sand Trail, is now overgrown with wild vegetation and blocked off by a fence. But it leads to the start of Quonochontaug Barrier Beach, one of the most beautiful but inaccessible stretches in the state.
The fight is now before the Coastal Resources Management Council, the state’s shoreline regulator. The CRMC votes on whether to designate properties as access points to the shore. This dispute is over just one relatively narrow piece of property, but to people who want it to be a designated access point, it exemplifies a lot of issues in Rhode Island: The controversies over fire districts that don’t fight fires, the encroachment by private interests, the steady erosion of constitutional rights.
Rubin is not the only one working on this case. Local activists have also submitted to CRMC theories in addition to his, supported with a timeline illustrated with photos. The timeline, those activists say, includes evidence that the public long used Spring Avenue extension for access before it was blocked off. They argue that it was dedicated for public use under a doctrine called incipient dedication, which, they say, can’t be revoked.
They have a formidable foe: The Weekapaug Fire District, which is arguing in its own legal counter-salvos that this should not be designated as a public access point to the beach. Despite its name, the Weekapaug Fire District does not itself actually fight fires; instead it acts as more of a land entity in the area. It contracts out to a real fire department for services.
Rubin says he doesn’t have a beef with fire districts in general. But people who do criticize them say they work mostly to privatize beaches, in incredibly wealthy areas. (An 8,000 square foot home near Spring Avenue extension is for sale for $6.1 million.) And, they say, the town’s government does little to stand up to them.
“Whenever the beast growls, they roll over,” said Steve Cersosimo, who got involved in shoreline access through his interest in fishing. “It’s the little guy against the big guy.”
If that’s true, the little guy has a significant ally in Rubin: He is a former assistant attorney general who worked on environmental issues. Since his retirement, he’s gotten involved in rights-of-way cases in places like Newport. But he likened it to working in the CIA: Often, you can’t tout your own victories.
Rights-of-way, as these public access points are called, are often paper roads. Some developer laid out a plan for a neighborhood. They sketched out a road that doesn’t exist in asphalt and striping, but exists as a legal right, and can be used as a footpath.
These rights-of-way are often overgrown with vegetation, or simply forgotten. In some cases, adjacent property owners will build obstructions across them. In other cases, people simply do not know they exist, and they haven’t been designated either by the CRMC or by towns themselves.
Sometimes there’s a debate about whether it’s a right-of-way or not. That is in play with Spring Avenue extension. Earlier this year an activist reached out to Rubin about this plot of land. It had been used, according to local lore, for generations. In the 1980s, though, some unknown party had built a chain-link fence across it. They needed legal help. Could Rubin work on the case? Rubin at first begged off, but the activist persisted, and he relented.
Rubin, whose stooped posture and upright zeal combines in a Bernie Sanders sort of way, is passionate about not just the beach but the rule of law.
“It’s not respecting the archival record, which to me is bothersome,” Rubin said. “Society depends on stable real estate titles. If you have usurpations, titles get mixed up.”
Spring Avenue extension has been controversial before. Locals pressed the town to figure out who owned it. The town, according to the Westerly Sun, said it was private and belonged to the fire district, but one legal review found conflicting evidence about its status. The town asked CRMC to look into it.
Rubin says he has the answer. He calls it a smoking gun. He found a revised plat map from 1939 that showed Spring Avenue. And affixed to that map is a stamp, faint with time but unmistakable — a stamp of approval. Under the town law at the time, that meant the town officially accepted the roads on it, including Spring Avenue, as public, Rubin argued.
It’s the sort of stamp that you might miss if you were looking at it on a computer screen and not in a basement vault. Once the town accepted Spring Avenue as a road, it had to go through a number of hoops to abandon it, and it hasn’t done so, Rubin argues. After the dust-up in 2007 and 2008, the owner of Spring Avenue — the Weekapaug Beach Company, whose assets were later acquired by the fire district — filed a “revocation” in town records. This was an effort to reverse any grant of access people might have thought they had. Rubin said this was basically made up out of thin air, part of what he describes as “white collar vigilantism.”
Other maps going back years show Spring Avenue is a public right-of-way, Rubin says.
There’s also the circumstantial context: That area was just recovering from a destructive and deadly hurricane in 1938. It would make sense, Rubin says, for the predecessor to the fire district to assign to the town roads which they might not have been able to take care of.
Rubin says he doesn’t dispute that the fire district owns the underlying land. But, he says, the public has a right to cross over it.
“It’s a particularly strong case,” he said.
The Weekapaug Fire District, through its attorney, filed its own legal documents. Over 152 pages of arguments and exhibits, they come to a much different conclusion. Pointing to different deeds maps — there are a lot of maps — they argue that Spring Avenue extension is private, and always has been. The district points to an 1884 deed that makes reference to a right of access over “several private roads.” When developers were platting out the land on those maps, they intended for access to be limited only to properties shown on the maps themselves, not everyone else.
They also point to, for example, the fact that the town itself, the United States government and the Narragansett Electric Company have sought easements from the Weekapaug Beach Company to do work in the area. If the roads were public, they’d have gone to the town for that easement. Instead they went to the private owner.
Thomas J. Liguori Jr., the attorney for the fire district, said he was reviewing Rubin’s submission and would respond at the CRMC level.
Ultimately this will be up to the CRMC, an organization made up of gubernatorial appointees, to sort out.
To Ben Weber, a Westerly resident and shoreline rights activist, Spring Avenue extension is just one issue in Westerly, and in Rhode Island, that needs to be addressed. There are also access issues at the breachway nearby, and Ninigret Avenue — also referred to as the Sand Trail — as well as Fort Road and Lighthouse Road in Watch Hill.
“These rights-of-ways have to be conserved to gain access to exercise your right under the Rhode Island Constitution,” Weber said, but in some cases you can’t get to them “unless you storm the beach like Normandy from a boat.”
Conflicts over access can happen pretty much anywhere in Rhode Island where you see the blue of a river or a bay or an ocean. But it’s especially acute in Westerly, where proverbial saltbox houses dot the coastline. According to a study by the environmental group Save the Bay in 2018, of the 11 CRMC-designated rights-of-way in Westerly, six were being blocked off — four of them “purposefully.” That is by far the highest proportion in the state.
It is this dynamic that has led people like Weber, Rubin and Cersosimo, the guy who got involved in it through fishing, to try to change things.
“The public is paying attention now,” Cersosimo said. “It’s time to do the right thing.”