The fire district, which owns significant shoreline land but has no fire department, says the town is in violation of an agreement that governs the use of a dirt road that’s regularly accessed by fishermen and beachgoers.
The July 27 filing takes issue with a town resolution passed earlier this year that referred the Sand Trail to the Rhode Island Coastal Resources Management Council for consideration as a state-designated public right-of-way to the shore.
That step, the district says, went against a 1997 “consent judgment” between the town and fire district that settled a lawsuit brought by the Weekapaug Fire District after the town told the district to remove parking spaces on what the town council had said was a public road.
The agreement declared the Weekapaug Fire District owner of the Sand Trail and outlined public uses on the road, like walking and driving four wheel drive vehicles from Labor Day to Memorial Day, through an easement granted by the fire district.
“The Judgment fully and finally, and unequivocally, settled and resolved the ownership of the Sand Trail and the use thereof,” fire district attorney Joseph Farside writes in the motion.
Farside notes that the judgment doesn’t grant members of the public the right to pass over adjacent private property to access the barrier beach shoreline. Currently, there are no designated public rights-of-way to the barrier beach shoreline and the fire district heavily restricts public use of the area in the summer months.
“Defendant has directly challenged the Judgment, sought to vacate the Judgment, sought to materially alter the Judgment, and/or sought to materially undermine Plaintiff’s rights under the Judgment,” Farside writes of the town.
The complex history of the Sand Trail dispute
The Sand Trail was originally referred to CRMC in 2020 after a previous town council voted to refer two other rights-of-way, Spring Avenue in Weekapaug and Waters Edge Road in Watch Hill, to CRMC for potential designation. To the confusion of shoreline access advocates and others following access developments in Westerly, Waters Edge Road wasn’t sent, and the Sand Trail was sent with Spring Avenue instead.
Westerly Town Solicitor William Conley said in a letter to CRMC two years later that the referral of the Sand Trail was sent “incorrectly.” But by then evidence supporting public designation of the Sand Trail had been submitted by a member of the public, and the new town council wanted to affirm its wish to have CRMC still consider the Sand Trail as a potential public right-of-way, or ROW.
Councilors took that step through a resolution passed in March that stated the town’s “desire to see CRMC’s ROW designation process for the Sand Trail proceed consistent with the public’s right to access its valuable coastal resources.”
Councilors say the resolution was deliberately written to avoid having the town take a stance on whether the road is a public right-of-way or not, and was meant only to request that the CRMC Rights-of-Way Subcommittee evaluate the road’s merits as a public right-of-way.
But, according to the fire district, the town council voted “to recommend” that CRMC “declare the Sand Trail to be designated as a public right of way.”
In its recent motion, the Weekapaug Fire District cites correspondences from Solicitor Conley as evidence town council members “defied” their own legal counsel when referring the Sand Trail to CRMC.
In one email exchange from July 2021 that’s submitted as an exhibit in the recent motion, Weekapaug Fire District attorney Thomas Liguori tells Conley the Sand Trail has already been resolved by the consent judgment and asks Conley to “please indicate that the adjudication of the status of the ‘Sand Trail’ is not being pursued before CRMC.”
Conley writes back that day to say “the status of the Sand Trail is not being pursued before CRMC” but then writes back to Liguori eight minutes later, saying, “Please disregard my previous email. The Town Manager insisted that we include the reference to the Sand Trail in the letter. I agree with you that that is a completely resolved matter.”
Conley did not respond when asked by email Friday morning if he thought the town was now at a disadvantage in the case, because he had already acknowledged in writing to opposing counsel that he agrees with the fire district’s interpretation of the consent judgment.
The new filing asks that the court order the town to void its March 2023 resolution, dismiss the referral before CRMC, and “proclaim or resolve” at a future town council meeting that the Sand Trail is not subject to further review, the Sand Trail remains governed by the consent judgment, and that “the public should not harass security personnel monitoring the Sand Trail entrance area.”
Shoreline access advocates fight back
In recent years, shoreline access advocates have taken to recording their encounters with guards hired by the Weekapaug Fire District who stop and question drivers heading towards the Sand Trail.
Access advocates have long questioned the legitimacy of the consent judgment brokered by then-Superior Court judge Frank Williams and called for a re-examination of the agreement now that the fire district has filed a motion to hold the town in contempt. They say that could open up more public parking in areas that are currently occupied by the fire district.
They specifically point out that, in 1997, an attorney for another property owner on the Quonochontaug Barrier Beach, Rhode Island Mobile Sportfishermen, questioned the proceedings leading to the signing of the consent judgment, saying the town “had failed to follow statutory rules for abandonment of town roads.”
The town of Westerly and the Weekapaug Fire District had clashed over the Sand Trail decades earlier, when the town reopened what was then known as Ninigret Road as “a public thoroughfare” and the Westerly Highway Commission voted in 1948 to restore the road to passable condition after damage from storms, according to archived reports from The Providence Journal.
It’s unclear if the fire district’s new motion could reopen the consent judgment to new scrutiny, as access advocates are hoping for.
The Superior Court docket for the case says, prior to the fire district’s recent legal action, there had not been any recorded activity in the case since 1997.
According to the motion filed by the fire district, Conley, Westerly’s town solicitor, was served on Jul 27. The filing is on the agenda as a possible executive session item for the town council’s Monday night meeting.
The Quonochontaug Barrier Beach is a 1.7-mile peninsula that begins in Westerly in the Weekapaug Fire District and ends in Charlestown at land owned by the Rhode Island Department of Environmental Management at the Quonochontaug Breachway.
According to property records, DEM acquired the land with “all rights, easements and privileges” associated with the property.
Last year, a spokesperson for DEM, Michael Healey, said staff members researched the issue at the request of The Public’s Radio and don’t believe the department has a right-of-way over the peninsula to reach its property.
“Although DEM owns the property on the west side of the breachway, we have no information (deeds, covenants, surveys, etc.) designating areas for access or other specific purposes,” Healey wrote in an email. “We are not aware of any requirement to support or provide particular activities there, and we have no plans for development.”
In July, the Charlestown Town Council also voted to refer the Sand Trail to the Rhode Island Coastal Resources Management Council. The fire district’s recent motion takes no action against Charlestown.
The ongoing legal saga in Westerly over shoreline access
The motion to find the town of Westerly in contempt of the Sand Trail consent judgment is not the only ongoing case involving the town and Weekapaug Fire District.
The two sides are also parties, along with the Rhode Island Attorney General’s Office, in a separate case before CRMC to evaluate the merits of a right-of-way walking distance from the Sand Trail that shoreline access advocates say is public and the fire district says is its private property.
That path, Spring Avenue, is currently blocked by a fence and overgrown vegetation. According to district meeting minutes, Weekapaug is likely to incur $340,000 in legal fees related to the case in 2023. In response to a records request submitted last year by The Public’s Radio seeking attorneys fees related to the case to date, the Weekapaug Fire District supplied invoices totaling more than $100,000.
The fire district is a state-chartered quasi-municipality with tax-raising authority that doesn’t directly fight fires but has significant shoreline land holdings.
The district says it already has set aside $140,000 in its budget for the Spring Avenue legal fight and an additional $80,000 is available from a $2.2 million sale of district land that was part of the settlement of a separate lawsuit, “leaving a shortfall of $120,000.”
“We discussed taking that from our $2.2 million fund,” the May 27 meeting minutes read, “or trying to raise additional money via taxes.”
Alex Nunes can be reached at anunes@thepublicsradio.org