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HARWICH PORT — The winter wind Friday was literally the polar opposite of summer, and the beach at the end of Bay View Road was crowded with nothing but empty pink lady slipper shells and a proliferation of signs shouting "Private Beach" to no one.
The privacy signs have been there for the past couple of years as a group of seven waterfront property owners asserted their right to have a private beach between two town beaches near the entrance to Wychmere Harbor.
They argue that they should be able to add a 150-foot stretch of sand deposited there since 1990 to their properties. When they filed what is normally a routine Land Court request last year to add the beach area from sand deposited by ocean currents to their existing parcel, the town filed an objection. An association of homeowners in the streets adjoining Bay View Road, known as the Friends of Harwich Beaches, asked to join the town's side.
The case continues in the state Land Court in Boston on Jan. 30.
"They started populating the beach with (the signs) about a year and a half ago, and they really proliferated before last summer," said Jan Kalicki whose extended family has owned a home in the Bay View area since 1921.
He claims that for more than 100 years, the beach was always open to the neighborhood, until new people from off-Cape started buying up waterfront property.
"The first thing they did was to start excluding people."
Kalicki said his late wife's great-great uncle deeded a 6-foot-wide right-of-way to the town so that people could go down and use the beach. In a sign posted at the entrance to that path, waterfront property owners now advise beachgoers that the public beach is only as wide as the right-of-way: 6 feet. The rest, the sign says, is private beach.
The town argues that a jetty built at public expense around 1885 and extended farther out into Nantucket Sound in 1937 to protect the entrance to Wychmere Harbor, trapped the eastward flow of sand that created new beach area. It cites a 2010 court case in which the Supreme Judicial Court decided that the public's Colonial-era rights to access tidal property did not end when the tidal area filled with sand.
The town is arguing that there needs to be some compensation for the loss of the public rights to access for fishing, fowling and navigation as the tidal area turned into beach.
"The ownership shouldn't go to them without some public benefit," said Harwich Selectman Ed McManus. "The public should have free access not just for the old Colonial reasons of fishing, fowling and navigation, but for recreational uses."
The case is now being negotiated in state Land Court, and state Attorney General Martha Coakley's office said recently that it wants to review all the evidence before deciding whether the state, too, could weigh in.
Waterfront property owners who live along Davis Lane said they have a right to a private beach because they paid a lot of money for that right.
"We're not bad people," said Ferris, who lives in Westwood, but has owned homes in Harwich for 15 years. The waterfront homeowners don't stop people from strolling on the beach and have invited many neighbors to use it, he said. But sometimes it gets too crowded, especially with people who are renting property in the neighborhood.
"We're all down there to relax with our families," Ferris said. "It's a private beach. ... We paid for this right. It is what it is."
Bob Nickerson, another waterfront owner, takes exception to the characterization that all those involved in the case are newcomers who couldn't appreciate that the beach was routinely used by all. He's sympathetic to the neighborhood, he said, because his family had been in the area since the late 1800s.
"My grandfather went to that beach because he knew people who owned the property," he said.
Nickerson has spent every summer on the beach even though his family didn't own waterfront property. He bought the property on Davis Lane recently, he said, because he could see the beach rights problem coming.
"With the price of housing, and as the beach becomes more of an asset and people are exercising their rights to privacy, and there's more people coming down here, it becomes contentious," he said. Still, if he let everyone use his 90-foot section of beach, it would become crowded pretty quickly, he said.
"Now they want full use and rights," Nickerson said about the neighborhood association and the town. "They say, 'You guys can own the land; we just want to use the beach.' Why should I pay millions of dollars (for waterfront property)?" he said.