East Beach, Westport back in court

Improvement association says 'unlawful' actions from select board, town administrator infringe on lot owners' rights

By Ted Hayes
Posted 10/5/21

A few snow birds have packed up and left, but dozens of campers and trailers still remain at East Beach, where lot owners have three weeks to remove them. The six-month trailer season, at which …

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East Beach, Westport back in court

Improvement association says 'unlawful' actions from select board, town administrator infringe on lot owners' rights

Posted

A few snow birds have packed up and left, but dozens of campers and trailers still remain at East Beach, where lot owners have three weeks to remove them. The six-month trailer season, at which permitted lot owners bring their campers down after May 1, then remove them when the weather turns cold, officially ends on the last day of October.

What will happen at the barrier beach next summer remains to be seen, though, as a lawsuit filed against the town earlier this year works its way through the court system.

In late April, the East Beach Improvement Association (EBIA) filed suit in Bristol County Superior Court against the Town of Westport, the Select Board and former Town Administrator Tim King. It alleges that the town exceeded its authority last year when the town began enforcing regulations, passed 11 years ago, that among other things require lot owners at East Beach to remove "permanent" items besides trailers and campers — including picnic tables, sheds, fences and the like — or face the possible loss of their permits for the coming year.

Though those regulations have been on the books for more than a decade, they had not been enforced since shortly after they were passed, when the EBIA contested them in a previous lawsuit.

The association's legal firm, Anderson Kreiger of Boston, stated in its court filing that when the regulations were first passed, and then opposed by the association in court, "this court entered a preliminary injunction prohibiting the enforcement of those regulations, though that litigation never proceeded to judgement."

In the years since, those regulations have not been enforced, EBIA president Kevin Curt said Friday.

He said he and nearly 100 other lot owners were surprised late last year when King sent out letters stating that they would be enforced prior to the start of the 2021 season, and that owners could face loss of permits or other penalties if they did not clear everything off their lots.

"These regulations blindsided us," Curt said. "We said, 'Why is this here?' We didn't get any answers."

The association's suit was filed four days before the season was set to open, and Curt said that while some property owners were "arbitrarily" found to not be in compliance with the regulations, none of the lot owners were subsequently denied their permits as a result of the new enforcement.

But he and others are waiting to see what happens in the coming several months, and whether the town will attempt to enforce those regulations again next season.

"We're trying to get a stay while negotiations go on," Curt said. "That's what we're hoping for, to at least put it off a year until we get some agreement."

Select board members discussed the issue in closed session last Monday night. However, chairwoman Shana Shufelt declined to comment on the town's position.

Town administrator James Hartnett did not respond to an e-mailed request for comment.

What the association wants

Under the suit, EBIA officials layout the town's alleged violations and seek several types of relief. Among them:

Count I: EBIA officials contend among other things that "the regulations and the town's other enforcement actions ... exceed the Board of Selectmen's authority," that the Town of Westport, select board and town administrator "are usurping the authority of other, independent town boards and commissions (as) the defendants are not authorized to determine violations of the State Building Code or the Wetlands Protection Act."

As a result, they write, "the Association is entitled to a declaration that the Regulations, the Conditions Agreement, and the Defendants' other enforcement actions ... are unlawful."

Count II: The suit alleges that the regulations constitute "an invalid exercise of zoning powers," as "none of their provisions applies to any other barrier beach in Westport. Property owners on the Town's other barrier beaches, and those who still have houses on East Beach, keep decks, sheds, and other items on their lots without any need for a permit."

"The Town has effectively created a new zone for the Each Beach district. It has done so without any of the procedures required by the zoning act."

As a result, "the Plaintiff is entitled to injunctive relief prohibiting the Town from enforcing the Regulations and the Conditions agreement."

Count III: The plaintiffs argue that "if an application is made within the prescribed period, the renewal of the permit is non-discretionary and ministerial." Therefore, "The Plaintiff is entitled to a writ of mandamus compelling the Town to renew seasonal trailer permits to members who apply for a renewal."

Last week, Curt said the court so far has taken no official action on the complaint. But he said that while the association waits, the EBIA wants to work with the town to come up with a solution equitable to all.

"We've been trying to come up with some sort of settlement," he said. "But we haven't gotten timely responses."

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