A well-known Cambridge businessman and prominent seasonal resident of Edgartown is a key backer of a bill quietly making its way through the Massachusetts legislature that has the potential to affect dramatically the ownership rights on barrier beaches around Great Ponds, the Gazette has learned.
Richard Friedman, a Boston real estate developer and owner of a large estate on the Oyster Pond, paid a registered lobbyist $135,000 over the past two years, records show, to push a bill on Beacon Hill that is now attracting growing attention among coastal property owners on the Vineyard and beyond. House bill 254, a single paragraph, relates to the barrier beaches that separate the Island’s Great Ponds from the ocean, many of which are privately owned and retreating into the ponds as they are eroded on their seaward side. The bill would prevent private ownership from moving with the sand. Because the Great Ponds are public land, any barrier beach that retreated to a place which formerly was the bottom of a pond would become a public beach.
Technically an amendment to Chapter 91, the state law governing navigable waterways in the commonwealth, the bill has broad implications not only for the Vineyard, but also Nantucket and other areas across the commonwealth where there are Great Ponds and barrier beaches.
The bill was originally filed last year but died in committee. It was refiled in January.
Mr. Friedman is a Democratic fund-raiser whose Oyster Pond home was the Summer White House for the Clintons for three years. Last summer he hosted a fund-raiser for Gov. Deval Patrick at his home. A generous contributor to Island causes, Mr. Friedman makes his home available for a variety of summer fund-raisers for nonprofits, including the Vineyard Nursing Association and Vineyard House.
He is appealing a long-running Massachusetts Land Court case that attempted to establish ownership of and access to the barrier beach that borders Oyster Pond and Job’s Neck Pond. The case dates to 2004 and involves a complicated title claim and a separate prescriptive easement claim by Mr. Friedman and a group of Oyster Pond landowners against a group of neighboring landowners. The bill is not directly connected to the case but the parallels are striking; among other things the case involves issues of access to barrier beaches and ownership rights on beaches after erosion takes place.
Reached at his Cambridge office yesterday morning, Mr. Friedman confirmed that he supports the bill but had no further comment on it or the court case. “I am for the bill, that’s all I would say. Beyond that I don’t think I should comment,” he said.
Plaintiffs in the case are three trusts whose principals are landholders in what was formerly Winthrop B. (Sonny) Norton’s land; Mr. Friedman is a trustee of one of the trusts.
Defendants in the case are six trusts whose principals are landowners in what was formerly Pohogonot Farm. Two of the trusts are controlled by members of the Kohlberg family. Jerome Kohlberg and Nancy Kohlberg, who head the Kohlberg family, own the Vineyard Gazette.
Owned by the late George Flynn, Pohogonot abuts the Norton land; the two properties comprise a vast area of former farmland that fronts the Edgartown Great Pond, Oyster Pond, Job’s Neck Pond and a series of smaller ponds. A barrier beach divides the ponds from the ocean. Mr. Friedman bought his land from the Nortons in 1983. The land court decision issued in April and now on appeal rules that Mr. Friedman and others do not have access over the Flynn land to the barrier beach fronting Oyster and Job’s Neck Ponds. The decision reads in part like a history of the two storied farmlands in the rural coastal perimeters of Edgartown and chronicles a changing pattern in the culture of land use as the properties were subdivided and sold. Erosion is another subject in the case, which also involved title claims to early 20th century fractional interests in the barrier beach. With erosion occurring on the south shore at a rate of five feet a year, the judge in the case found that those interests have long since disappeared into the Atlantic Ocean.
The bill, House 4725 last year, was reintroduced as House 254 this year by Rep. Frank I. Smizik, a Democrat from Brookline who is chairman of the House Committee on Global Warming and Climate Change. Mr. Smizik said yesterday he has no connection to Mr. Friedman.
“None,” he said. “This bill will not address his case.”
Records from the Massachusetts Secretary of State’s office show that Mr. Friedman paid lobbyist William F. Coyne Jr. $75,000 in 2010 and $60,000 in 2011. Separate disclosure forms filed by Mr. Coyne indicate that at least $75,000 of that money was used by himself and an associate, Patricia E. McCarthy, to lobby in support of House bill 254 and its predecessor, House bill 4725, on Mr. Friedman’s behalf.
The bill is now in the committee on third reading in the state house. It has a long way to go before it could become law. But sensitivity about the bill is already evident; Rep. Vincent Pedone, a Democrat from Worcester and the chairman of the committee on third readings, was scheduled to travel to the Vineyard today to view the Oyster Pond area and meet with unnamed private landowners who may be affected by the bill. The trip has since been cancelled, Mr. Pedrone’s office confirmed yesterday. Mr. Smizik, the bill’s sponsor, said he understands the trip will not be rescheduled. “[Mr.] Pedone has been holding this bill up, so now we will see what he does,” he said.
Meanwhile, a growing number of property owners on the Vineyard are assembling, some with attorneys, to study and assess the potential impacts of the bill, including legal impacts. And there are two distinct and disparate views of the proposed legislation. Backers of the bill say that it is merely a clarification of the law and would have no far-reaching implications, including for private property owners.
“We are just trying to do what the court cases do say which is that this land would be state land,” said Mr. Smizik, who said he introduced the bill out of direct interest in his role as chairman of the global warming committee. “It’s a way of protecting state property — why should others get control over those properties? We think people will come to these ponds even if by taking a little kayak or boat or something or swimming and going up into the ponds. It should be state property. We’re trying to confirm that. It’s a clarification of the law.”
Opponents take a markedly different view. They claim the bill raises many potentially complicated legal issues relating to property rights and shifting property tax burdens. And there is the question of what point in time the measuring begins to determine if a barrier beach has accreted into a Great Pond and would become public. Does it begin in the 1600s when tidal laws were formed in Massachusetts or yesterday? The bill is silent on this question.
“I am just trying to get to the truth of this,” said Chuck Parish, a Vineyard Haven resident who owns property on Lake Tashmoo and the Vineyard Haven Harbor and has hired an attorney to study the bill and relevant case law.
“It’s important that people take a very close look at this because the consequences could be very serious for the commonwealth,” said Jim McManus, a public relations spokesman who represents the Great Ponds Coalition, a group that has formed to oppose the bill with a Web site (greatpondsma.org). Mr. McManus said names of the members of the coalition cannot be disclosed for reasons of privacy. He also could not disclose who is funding the organization and its Web site.
Unlike most other states in the country, Massachusetts law allows private ownership of beachfront to the mean low water line.
A Great Pond is defined in Massachusetts as any body of water more than 10 acres. The state lists 17 Great Ponds on the Vineyard, but a list compiled by the Martha’s Vineyard Watershed Team for the Martha’s Vineyard Commission names 35 Great Ponds, including barrier beach and tidal ponds.
Chapter 91 protects and promotes public use of tidelands and waterways and is grounded in the public trust doctrine and Colonial Ordinances from the 1600s which held that the air, the sea and the shore belong not to any one person, but rather to the public at large.
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