By Beth David*, Editor
Due to an inexplicable error in the various land records, the beach on the north side of Causeway Road in Fairhaven, which has been posted as a public beach since around 2004, and used by locals as a public beach for decades, could end up as no longer being a Board of Public Works property.
According to Land Court documents, the town of Fairhaven took the parcel for nonpayment of taxes. The parcel had been owned by Dan Ristuccia, and his father before him. According to attorney Matthew J. Thomas*, representing Mr. Ristuccia, the parcel was, simply, never owned by the town.
According to town counsel Thomas P. Crotty, however, the matter is not that simple, and the argument being made by Mr. Ristuccia makes no sense.
Throw in a remapping of the parcel by the assessors somewhere along the way, and the argument can be made that the town took only a portion of the land, not the whole piece.
Causeway Road crosses through the middle of Lot 1, creating a north side and a south side. Residents tend to use the north side more because the south side has a sand bar that has encroached upon the beach to the point that there is no water to swim, except at high tide.
The issue came up as the town researched properties it owned to find a comparable piece to designate as park land, as part of the Oxford School deal. The developers for the Oxford School project are seeking to take a sliver of land from Livesey Park. In order for the town to convey that piece of property, the town must find a comparable piece of property to designate as park land.
While researching town owned properties that might fit the bill, the town discovered that the certificate of title for the Causeway Road Beach was not properly marked as Map 43A, Lot 1A and 1B, it just says Lot 1.
A note on the back of the Treasurer’s Deed, hand written by a staff member of the Bristol South District registry of deeds flags the discrepancy with the lot numbers: “Problem — Assessors plan shows their Lot 1 as only being on the south side of Causeway Rd. They show a Lot 1A on the north side of Causeway Rd. We show it all as Lot 1 — including Causeway Rd. Note: Checked with L/C concerning this document and the Affidavits. Since the Taking was put on for L/C Lot 1, and that is the document number referred to in the Affidavit, that all of L/C Lot 1 was taken. It will be up to the town to correct a problem if they did not intend to take all of the property.”
Mr. Thomas argues in his court filing that if the town intended to take the whole parcel, the Taking is invalid, and Mr. Ristuccia objects to the issuance of a new Certificate of Title. If the town wants to keep the south side only, with Mr. Ristuccia owning the north side, then they will not object to the new certificate, and Mr. Ristuccia will be the owner of the beach on the north side of Causeway Road.
The initial taking of the property was in 1992, and the foreclosure of the parcel was in 2004.
According to the filing in court, Mr. Thomas contends that the taking should have said a “portion of Lot 1” was taken. According to Mr. Crotty, that is not a sound argument.
He said the idea that Mr. Ristuccia did not know the town was taking both sides of Causeway Road is “almost kind of silly.”
“The owner knows he didn’t pay taxes on any of that property,” said Mr. Crotty in a phone interview. “Who would think the town only meant to take a part of what you didn’t pay your taxes on instead of all of what you didn’t pay your taxes on.”
Mr. Thomas, however, says that what is in the court documents is what matters, and the “A” and the “B” both needed to be there.
“It’s very simple,” said Mr. Thomas in a phone interview. “The bottom line is the town foreclosed on the southern beach, but never foreclosed on the north side.”
He said it may seem like one piece, but it is not one piece for tax purposes.
“You can only foreclose on what you tax,” said Mr. Thomas. “They did not tax the north side and the law is extremely clear on that.”
If Mr. Thomas’s argument prevails, the beach will revert back to private ownership.
Members of the West Island Improvement Association have said they are hoping to take ownership of the beach, and have spoken to Mr. Ristuccia, who seems open to the idea of giving or selling it to the WIIA.
“He’s going to do what he thinks is in the best interest of the residents of West Island,” said Mr. Thomas.
It is unclear if the beach would be restricted for use by members only. A call to the WIIA president was not returned by press time.
The matter is due in Land Court on August 21 for a case management hearing. Mr. Thomas said he believed the matter should be resolved quickly. Mr. Crotty anticipates at least a year of court proceedings ahead.
*EDITOR’S NOTE: Editor Beth David lives on West Island; and she and Attorney Matthew J. Thomas are related by marriage.
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