Swampscott sends Whales Beach access dispute to town lawyers

← All news · August 6, 2026

No-trespassing signs went up at Whales Beach this summer. The town, facing abutters' claim that a 1988 settlement affects public use of the sand, has asked KP Law to review the beach's legal history.

Swampscott has asked its lawyers to determine whether the public may use Whales Beach after no-trespassing signs went up this summer and neighboring owners pointed to a 1988 settlement agreement they say affects the town’s shoreline rights.

On July 28, the Conservation Commission took up “no-trespassing signs at Whales Beach” as item 7 on its agenda. According to press coverage of that virtual hearing, the commission met over Teams and the town has not yet posted minutes. Neighboring property owners presented what they describe as a decades-old settlement agreement they say conflicts with the town’s understanding of its rights. Chair Tonia Bandrowicz called the legal questions complex and said the town needs legal guidance before it acts. She sent the matter to town counsel.

A week later, on August 4, Town Administrator Nick Connors told the Select Board that the Conservation Commission, the Community Development office, and the town’s law firm, KP Law, are reviewing all prior settlements and lawsuits touching the property. One of those matters, he said, “went all the way to the SJC.” That Select Board account is drawn from the meeting’s captions, not yet from official minutes. Swampscott Tides summarized the town’s posture this way: “KP Law will now review the legal rights associated with the property and determine whether the town has any legal remedies available.” No deadline was set.

The 1981 beach easement

The public’s claim to Whales Beach does not rest on the town owning the sand. It rests on a prescriptive easement, a right to use land you do not own, earned by using it openly, as if by right, for a long time.

That right was confirmed in Thomas E. Daley & another v. Town of Swampscott & others, decided by the Massachusetts Appeals Court on May 13, 1981. The abutters went to court seeking to register their title to the shoreline land. The court gave them their registered title but confirmed it subject to the public’s easement. In plain terms: the neighbors own the land on paper, in the strongest form of ownership Massachusetts recognizes, and the public still holds a court-confirmed right to use it.

According to the decision’s indexed syllabus, the only part of the case now readable and not the same as the court’s full opinion, the town and its inhabitants had used the land seaward of the petitioners’ retaining wall for more than 20 years under a mistaken claim of right. Town departments cleaned, maintained, and patrolled the beach, provided lifeguards, posted signs, and removed fences. That was enough to establish an easement by prescription for ordinary beach use, running to the town, its inhabitants, and a group of named individual respondents.

The readable record leaves two limits. First, the syllabus places the line at the retaining wall. Press coverage of this summer’s dispute has described the public zone as everything “seaward of Swampscott pier.” Those are not the same landmark, and the exact boundary cannot be confirmed until someone obtains the full opinion. Second, the syllabus is said to name a specific count of individual respondents alongside the town, but that number sits in text no one can currently read. This account does not print it as fact. It is enough to say there are named individuals, and their existence complicates any later private deal.

One more party appeared in 1981 that a private settlement would have to reckon with: the Commonwealth, through Assistant Attorney General Howard R. Palmer, alongside Town Counsel Harvey F. Rowe Jr. and Special Assistant Town Counsel Israel Bloch. The state’s appearance raises a question, about tidelands or public-trust interests, that counsel should answer. It is a question, not a proven second easement.

The 1988 settlement claim

The owners of record, as identified by Swampscott Tides, are Joseph and Gladys Della Porta of 165 Puritan Road. They have not spoken publicly, and no source establishes who put up the no-trespassing signs, or when. The signs should not be pinned on any named person.

What the owners invoke is a 1988 settlement agreement. Its contents are their characterization, relayed through the press; no one outside the parties has seen the document. It is a claim, not an established fact. That is why the town hired lawyers rather than simply agreeing or refusing.

The 1988 agreement surfaces, per Tides, in a 2010 Appellate Tax Board case: Joseph J. Della Porta et al. v. Board of Assessors of the Town of Swampscott, Docket F300655, decided May 26, 2010, an appeal of the FY2009 assessment on the property. The assessed value was $1,517,300 and the tax was $21,758.08. The board decided for the assessors. Those docket facts are independently confirmed; the decision’s reasoning is not, because its text is blocked. What the owners argued about beach rights in 2010, and why they lost, is not in hand, and this piece does not guess.

What KP Law must review

The question is what a private 1988 agreement could, and could not, do against a right of the 1981 kind. A settlement can narrow, release, or clarify rights. But the rights here were adjudicated in a registered-title case, and the beach easement runs not only to the current town government but to the town’s inhabitants and to named individuals, with a Commonwealth interest in the background.

Whether any of those rights could be bargained away by a later agreement, who signed it, whether it was ever recorded, and whether it binds anyone beyond its signatories are the questions counsel must work through.

KP Law does not get the last word. It advises the town on its rights and remedies. If the dispute is contested, a court or a recorded instrument, not a law firm’s memo, settles what the public may do on the sand.

Records residents cannot read

The three documents that hold the answer, the 1981 decision, the 1988 agreement, and the 2010 tax case that recites it, are all effectively unavailable to a resident who wants to check them. The Daley opinion has been blocked at six online sources; the tax decision’s PDF returns an error; the settlement has never been public. The town’s own lawyers are reviewing settlements and suits because the record is not easily readable.

This is not the town hiding anything. Automated retrieval being bot-blocked is not the same as a record being suppressed. But the result is similar to another recent record problem, after roughly 135 committee files vanished from the town’s own website (“Hawthorne committee record has vanished from the town website,” July 22): the paper trail that defines a public right is hard for the public to read.

The Whales Beach dispute also sits beside another summer shoreline fight. At Mission on the Bay, a privately funded permanent seawall and public boardwalk would sit partly on town land, and the town’s paperwork for allowing that has never been clear (“Mission on the Bay Seawall Plan Puts Permanent Rock on Town Land,” July 24).

What to watch next

The KP Law review has no stated deadline. Watch for whether the opinion returns to the Conservation Commission or the Select Board; whether the official August 4 minutes confirm the caption account, including the “went all the way to the SJC” reference to an unnamed matter; whether the signs stay, move, or come down; and whether the town posts the 1981 decision, the 1988 agreement, and the 2010 case so residents can read the law that says whether they may walk on Whales Beach.

Addendum (2026-08-10): the 1981 opinion has been recovered

This piece was written from Daley’s indexed syllabus because the full opinion was blocked at six online sources. It has now been obtained in full, from the Harvard Caselaw Access Project’s static archive, and is cached at data/legal/daley-v-swampscott-1981.md. Six things change or firm up.

The boundary is the retaining wall. The article flagged this as unresolved, because press coverage this summer has described the public zone as everything “seaward of Swampscott pier.” The decree is explicit: title is confirmed subject to the rights of the town, its inhabitants and the named respondents “to use so much of said land as lies seaward of the retaining wall … for all usual purposes for which a beach is used.” Retaining wall, not pier. The press landmark is wrong.

There are twenty-three named individual respondents. The article declined to print a number. It is 23. And the petitioners’ appeal from the finding that those individuals held their own prescriptive rights was waived — so that part of the decision was never reviewed and stands. This matters for the 1988 settlement claim, and it is the sharpest legal point in the whole dispute: whatever the town agreed to in 1988, a settlement between the town and the abutters could not by itself extinguish rights the Land Court found in twenty-three other people who were not the town.

What made the easement stick was “corporate action,” and it is a checklist of things the town still does. A municipality cannot get a beach easement the way an individual can. Under Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 (1964), “persons of the local community” and “the general public” are too broad a group to acquire one by prescription. The town must show it “exercised dominion and control over the land in its corporate capacity through authorized acts of its employees, agents or representatives.” What did it in 1981: DPW crews cleaning the beach seven days a week from June 1 to September 15 since at least 1956, trash barrels emptied daily, a front-end loader with a rake, lifeguard stands and recreation-commission lifeguards, park-commission rules signs, police patrols — and the selectmen ordering fences put up by shoreline owners removed, including one Thomas Daley erected in June 1968 and a town employee took down saying he “was ordered to do this.”

The Commonwealth question is answered. The article raised the Assistant Attorney General’s appearance as an open question about tidelands. The opinion resolves it: the petitioners “do not contest” that their land below mean high water is subject to the public’s rights of fishing, fowling and navigation — the colonial-ordinance public-trust rights. Those are a separate and independent layer from the prescriptive easement, and they were never in dispute.

Self-help failed twice, and the timing is instructive. The petitioners painted “private beach” on their seawall in 1975 or 1976 and people used the beach anyway. They recorded a notice to prevent acquisition of an easement under G. L. c. 187, § 3 on June 19, 1974. That statute stops the clock going forward; it does not undo a right that has already vested, and the court found twenty years of adverse use had run before 1974. Signs and notices are not, by themselves, a defense to an easement already earned.

A fact worth putting to the assessors. The 1981 court gave weight to testimony from a member of the board of assessors, reading from “very old records,” that since at least 1924 the owners of this property had been assessed for only 9,060 square feet of upland, and that the land seaward of the retaining wall “had never been assessed as the petitioners’ land or included in their tax bill.” The court treated the town’s refusal to tax the beach as evidence the town claimed it. Whether today’s assessor card for 165 Puritan Road still excludes the beach is a checkable question this article did not ask, and it bears on the 2010 Appellate Tax Board case — an assessment appeal by the current owners, which they lost. HUMAN-REVIEW: the ATB decision’s text remains unretrieved, so what was argued there is still unknown; do not assume the 1924 assessment practice and the 2010 appeal are connected.

The article’s central claim is unchanged and now rests on the opinion rather than a summary: the neighbors hold registered title, and the public holds a court-confirmed easement over the beach seaward of the retaining wall. Legal context, not legal advice.

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