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Town requests help in settling access dispute

Town requests help in settling access dispute

Asks state to enforce its order opening Old Harbor walkway

Town officials have asked state environmental officials to weigh in on a dispute over access to Rockport’s Old Harbor and believe historic tidelands regulations will help them make their case in a court dispute with a private property owner.

Last fall Wendy Stone Ashe went to court seeking an order to prohibit the public from using a short section of sidewalk behind her Four Chimney By the Sea gift shop, which fronts on Dock Square.

The 10-foot-wide concrete path at the bottom of the property’s backyard connects Lumber Wharf off Pier Avenue to Middle Wharf. It passes over a stone pier that provides access to a small beach and mooring area known as Rockport’s Old Harbor.

On June 14, Judge David A. Lowry, sitting in Essex Superior Court, granted Ashe a preliminary injunction limiting public access to town emergency and public utility crews until further orders from the court. A trial is scheduled for Sept. 27 in Salem Superior Court.

”To me it is simply a matter of private property rights," Ashe said as she stood in her gift shop overlooking the harbor. ”I want my children to be able to play on our beach without having to worry about harassment or abuse."

But because Ashe’s sidewalk is essentially a wharf itself, constructed years ago on filled tidelands, Selectmen Charles Clark said he is confident that Lowry’s restraining order will be overturned.

”We were all shocked when the judge ruled against the town but we are confident that once the court hears our full case, we will prevail," Clark said. ”Rockport as a community has traditionally been a strong advocate for public access to the waterfront and so townspeople are vigilant when that access is threatened."

Town officials contend Ashe’s pier was built on filled tidelands and therefore public access is controlled by the state Department of Environmental Protection through the state’s Chapter 91 regulations. Tidelands are defined as the area between low and high tide, said agency spokesman Edward Coletta.

Coletta noted that the DEP put Ashe on notice in a June 23, 2000 letter that she was required to permit public passage under Chapter 91 guidelines. Rockport’s Planning Board voted July 21 to ask the state DEP to enforce that order. Coletta said the agency is reviewing its options.

Additionally Clark said that when the town purchased Lumber Wharf and Middle Wharf in 1975 from Ronald C. Coffin, Coffin granted the town a right-of-way easement across the now-disputed sidewalk.

In June, with Lowry’s order in hand, Ashe erected a plastic fence at either end of the sidewalk along with signs that read ”Private Property: No Public Passage or Use by Court Order." However, Ashe said her efforts to discourage public use have failed.

”The public is pretty much ignoring the fencing," Ashe said. ”Daily they tear it down and ignore the signs. I understand the past history but when my husband and I purchased this property, we made a major investment in Rockport. We have poured hours into completely renovating this property and adding the landscaping and we have a right to peaceful enjoyment of it."

Ashe’s fencing prompted the formation of the Harbor Access Group, an organization of about 40 citizens who appeared at the July 19 selectmen’s meeting and asked town officials to fight for what they contend is a critical right-of-way issue.

”The public has been crossing that pier forever even though it has always been privately owned," said Christina Wolfe, a spokeswoman the group. ”There are any number of private property owners along the waterfront who recognize that public access to the harbor is paramount. Ashe, though, wants to keep this chunk of harbor as her own private beach."

Ashe contends she was unaware of the state’s rules for use of tideland property and the town’s easement when she purchased the property. Furthermore, she contends the easement gives only town employees access, not the general public.

”This situation has harmed my family and my business," Ashe said. ”There is a fine line between supporting tourism and supporting the rights of private property owners. Without the investment of private owners, there would be no tourism."

Clark said the town’s attorneys are researching the terms of the town’s purchase of the Lumber and Middle wharfs from Coffin to better understand the easement he granted over the connecting sidewalk. ”Whether this is a small section of access or a larger one doesn’t matter because all the access to the harbor is strung together across parcels in different ownership," Clark said.

Posted on July 31st, 2005 by dan in North Shore