Preliminary report PRELIMINARY REPORT
OF THE.
BEVERLY CHARTER COMMISSION
West Beach is a sandy beach in Beverly, approximately 650-feet Ions The
beach is also tho only direct access to another 3,400-foot long beach which connects to
West Beach. West Beach and the 3,400-foot beach along side it have long been
considered one of the finest beach areas on the North Shore. Access to West Beach
allows West Beach Corporation members and their guests the additional right to walk this
3,400-foot beach throughout the summer.
West Beach had been open to any resident of Beverly prior to 1852. West Beach
was granted to the West Beach Corporation by a Special Act of the Massachusetts
Legislature in 1852.
Tho refusal by the West Beach Corporation to permit summertime access to West
Beach for all Beverly residents (despite the fact that Court records disclose, for example,
that the West Beach Corporation sold summetime beach access in 1998 to more than 300
families who resided outside of Beverly); and the Corporation's refusal to pay property
taxes over the past 149 years based on its claim that it was a "public charity", despite its
restrictive membership policies, have been issues of considerable controversy in Beverly
for many years.
However, as a result of the adoption by the Commonwealth of the Home Rule
Constitutional Amendment in 1966. West Beach can now become an invaluable
natural resource for all the citizens of Beverly.
After reviewing the issues surrounding West Beach for more than 14 months,
the majority of the nine member Beverly Charter Commission has determined that
the laws of the Commonwealth clearly authorize the Citizens of Beverly to amend
the Special Act of 1852 to reopen West Bench by voting in the Beverly Municipal
Election on November 6, 2001 to extend membership in the West Bench
1. The 1852 Special Act of the Legislature refers to the Corporation as West's Beach Corporation. In the
intervening 149 years, the Corporation and the Beach have become known as West Beach. Throughout this
report, unles the Commission is referring specifically to the title of Chapter157 of the Special Acts of
1852, the term West Beach will be utilized.
West Beach Corporation to all Beverly residents, The Commission majority has
also determined that expanding membership to all Beverly residents will not require
the expenditure of Beverly tax dollars to purchase West Beach due to the unique
legal status of the West Beach Corporation as a "quasi-municipal" corporation and
the fact that the Legislature placed West Beach in a "public trust" for specific
public purposes.
The Commission majority agrees that for far too Iong access to this unique
and priceless resource has been unnecessorily restricted. The time has come to
resolve this issue in favor of full public access to West Beach for all Beverly
residents.
CHARTER COMMISSION SUMMARY OF CONCLUSIONS
1. The Home Rule Amendment to the Massachusetts Constitution allows citizens of
Beverly to amend any Special Act of the Legislature that relates only to Beverly and
its municipal operations.
2. The West Beach Coporation is not, nor has it ever been a private corporation.
3. In fact, the evidenee drawn from public records and court documents prove,
overwhelmingly, that the lVfn~s~¢h-qetts Legislature established the West Beach
Corporation as a quasi-municipal corporation for the dual i~ublic purvoses of
malmaining an important segment of Beverly's public highway system and
preservi~ West Beach in a public trust
4. In 1852, both of these public p~ were essential m--icipel functions.
5. Massachusetts coum have consistently held that the maintenance and repair ofpublic
highways "bas always been reco ..l~zed as a strictly public duty...".
6. The Special Act of 1852 (Chapter 157) which established the West Beach
Corporation imposed a penalty upon any non-member of the Cmporation who entered
upbn West Bech and removed sand or gravel. The Massachusetts legislature does not
property is e~ther pubhc land or-~lcl-~' a Public'ui~. ......
7. The Special Act establishing the West Beach CotToration authorized an "~sessment'
,~i,,~t all legal voters in the two "Farms" school districts (all of the legal voters of
the East Farms School District and all but a few of the residents of the West Farms
School Diehlct) to k'ee~ the causeway "in leood repair for nublic travel."
8. Court records document the fact that the Beverly public had full summertime access
to West Beach for bathing and boating both before the establishment of the West
Beach Corporation in 1852 and up to 1890.
2
9. In 1852, thc Bcvcrly residents who petifionedtbe M,~sach,eetts Legislature to
incorporate West Beach, declared in their petition that tbey were seeking to have thc
Legislature incoq~orate them as a"body politic". Massachusctts courts have
recognized, since well before 1852, that the term "body politic" designates a
municipal, quasi-municipal or public corporation ~lished by the Commonwealth
to perform certain specified and essential public s~rviccs.
10. In 1907, thc W~st Beach Co~oration declared before tbe lv~ssachusetts Supreme
· Judicial Court that it had b~n e~ablisbed as a "qmai-municipal corporation".
11. The West Beach Corporation no longer fulfills its public purpose of melntelning thc
public highway and causeway beside West Beach. Of equal importance is tim fact
that the two Beverly school districts which were granted membership in thc West
Beach Corporation no longer exist. They have been assumed into the Beverly school
1:2. Massachusetts courts have long recognized that the property of quasi-municipal
cmporatiom may be used for other public purposes, without comtmnsation to the
mmsi-municimd corpo~..;:ons, as public needs chan~ over time.
~KEREFORE ~ CHARTER COM~mS~ON RECOM~.NDS THE
FOI.! OWING BAw.w OT OUEST~ON FOR ~ BEVERLY MUNICIPAL
ELECTION ON NOVKMBER 6. 2~01:
SI~LI. ThY. CITY OF BEVERLY APPROVE ~ CHARTER
REVISIONS RECOMlt~NDED BY ~ CHARTER COMI~_SSION,
SUMMAP~g~.D BELOW~ YES NO
The Home Rule .~endmg,~t of the IVf-,-~ach*,~'it~ Constitution aut~ the
citizens of Bevm-ly to revise the 18~2 Special Act oftbe legislature (Chapter 157)
Coqx~ration- as a special law relating directly to the municipal operations of the City of
Beverly, beginning in 1852.
Tbe Commission further rm~ma~ revising Chapter 157:
1) expanding n~n~t~,~dp in tt~ West's Beach Corporation to all Beverly
residents;
2) mandate non-discrimlns,~ access to the corporation prolmtY for all Beverly
residents; and
3) a ~ovision voiding this Charier revision iftl~ Massachusetts Supreme
Judicial Court demmines or ~mes to overturn the determination of a lower
court that thi~ revision constitutes a property taking by the City of Beverly
whioh requires the City to compensate the West's Beach Corporation for the
fair market value of all the Corporation's property.
This charter revision shall become effective upon its adoption by the voten of thc
City of Beverly.
The Char~' Commission recommends the following specific revision to the
present Beverly Charter:
1. Revise Subsection A, Section 9-7 of the Beverly City Charter to include
the following sen~nce at the end of Subsection A:
"And a Special Act passed by the Legislature of the Commonwealth of
Massachusetts in 1852, Chapter 157, entitled an Act to Incorporate West's Beach
Corporation."
The Charter Commission also recommends the following specific revisions to the
Special Act of 1852 enacting the West's Beach Corporation (Clmpt~ 157):
Strike Section I and t~-'place it with the following Section I:
"Section 1. All of the resldenu of the City of Beverty and their successors are
hereby a,~,de a corporation by the name of West's Beach Corporation. Accogs to
corporation property for all Beverly residents shall be on a non-discriminatory
basis."
Strige Section 5, as amended by Chapter 131 of the Siatutes of 1866, and
it with tl~ following Se~don 5:
"Section 5. All legal voters of the City of Beverly shall be voting members of the
· Corporation. The Corporation may impose a reasonable admission, per visit, to
the Corporation property to defray operating e. tpenses. "
Strike Section 10 and replace it with the following Section 10:
"Section 10. This charter revision shall be null and void if the Supreme Judicial
Court of the Commortwealth determines (or does not overturn the determination
ora lower court) that this revision of Chapter 157 of the Acts of 1852 constitutes
a property taking'by the City of Bevor!y which requires the City to compensate the
West's Beach Corporation for the fair market value of all the Corporation's
property. This charter revision shall become effective upon its adoption by the
voters of the City of Bever!y. "
DISCUSSION OF CHARTER COMML~qlON MAJORS FINDINGS
Public and Court records cleerly demonstrate that West Beach was an untaxed
"common" bench open to nil Beverly residents fi~r many years prior to the incoq~omtion
of West Beach in 1852 and mmn up to 1890. The~ are no records showing any property
laxes being paid for West Beach from 1813 (the earliest town tax records) up to 1852.
In 1852, a number of residents of the Beverly Farms area of Beverly petitioned
the ldnssachuw_"tts t egi.~l~,re to grant them possession of West Beach. Their petition to
the legislature sp~ifically mi~l only a sinnle uurpose for the request for inexnlaoration
and the grant of West Beach by the legislature to the corpomllon.
That specific puqaose was "... u. pon the condition of~airin$ the causeway by the
side of the beach: and that it would be for the inmz~ of the public.." Nothing in the
petition to the legislatu~ disolosed that tim West Beach Corporation would ever prohibit
Beverly residents outside of the two school di~%a from usin~ tim b~h for b~thlng.
To undemand ~ true nature oftl~ West Beach Corporation; it is critical to
inhere_her that the 1852 petition also speoifi~adly requested that the West Beach
Colpomtion be a "body politic" for th~ plil'pose of m*.int~ining the pHbHc road beside
West Beach and for holding the beach for tl~ residents oftbe two B,.-verly sclmol
dislfi,~i..,. The Coum ofl~,,qsscl,,,c, tts have long recoil-ed that the term "body politic"
has been employed by the legislature from th~ earliest days of the Commonwealth to
des~ th~ emblishinent by the t egMat-,'e of municipal, q-*,i-mm, lcipal o .~,~ons
or public corponuions.
fact, ~, in 1840 a similar group of residents frotn the Beverly Farms a~a of
Beverly had attempmi to fo .... at'prupfi~m,$ corporation" to establish a legal claim to
West Beach as "proprietors". This 1840 "propfi~a~s oorporation" would have been a
private mporation without any mlmsibility to maintain the public highway and
.e"propricton corpora on"
could have sold the property outfight.
they actually had valid title to West Beach
AS an indication of how flim_~ this clnlm of title was, Court reoord..s show that
during th~ 1840's, Beverly Farms school disi~iot residents oould tmrclme from th~ 1840
=proprietors corporation" the right to rail thmnselves "propfielms" having valid rifle M
West Beach for the sum of $5.00. In 1907, the Supreme Judicial Court reviewed this
abandoned 1840 "proprietors corporation" and de~htred that the West Beaoh Coq~mtion,
established by legislative gnmt in 1852, derived nothin~ of any !o1~1 valu~ from tho
former corpomtio~
The 1852 imition to the Legislature requested that the ~rant of West Beth would
be to the residents of two Beverly school dis~icts (all of the East and most of the
residonts of the West Farm., School Districts.) Over time and with the channe of
municiml ci~unmances both of these school districts have been absorbed into the
~neral Beverly school system.
Jest as ~ botmdn~ies of these two s~hool dis~cts have chanl~d over the'lint 149
years, so has the interest of Beverly residents in West Beach as an irreplaceable natural
resource available to all ~sidents.
Another k~y point is the fad that befo~ the 1852 Legislature would proceed with
the request for a Special Act incorporating West Beach both the Senate Clerk and the
House Clerk ordered the petitioners to secure the approval of the Beverly Town Meeting
for this act which would ~ransfer the respmm~ility for mnintnlni~lg th~ public road and
causeway by West Beach from the town of Beverly to a quasi-municipal coq~mation and
legislatively srant possession of West Beach to the residents bf two Beverly School
dis~cts.
The legislative ord~s required the West Beach Corporation to serve notice on the
Beverly Town Clerk and to twice publish their petition in local newspapen prior to the
March 8, 1852 Beverly Town Meeting
As ordered by the Legislature, t~ petitions w~e published prior to the ~ 8,
1852 Beverly Town Meeting. ,~in, tbe single disclosure provided to Town Meeting
petitioners "..was upon the condition ofx~-paiting the c~useway by the sido of the beac~
and that it would be for the interest of the public.." to incorporate West Beach as % bedv
politic".
.Nothing in this petition disclosed, in any way, to the Town Meetin~ members that
the coqxm~ would ever seek to close off summm'dme access to the beach to B~verly
In fact, court records show that any Beverly resident wishing to use the beach
from ! 852 to 1890 was allowed to do so, jmt as had been the uninterrupted local custom
l~or to 1852.
In 1852, it was common practice to incorporate a private company by way of a
Special Act of the Legislature. In fact, in 1852 there were approximately 150 Spocial
Acts of lncerpomtion.
However, it is pmic, d,4y important to note that the legislature specifically.
required tbe approval of the B,~erly Town meeting before it would proceed with
ennetment of the West Beach Corporation.
The only other instances where towns might hnve bee~ required to approve n
pending act ofincoq2or~o~ in 1852, involved railroad companies seeking the fight, by
statutory authority, to tnke public land for their railroad in a particular town.
Another critical element in the Chnrter Commission's determination that West
Beach was stunted to the West Beach Coq2mmion on the condition that it be held in
public tn~t was the fact that in 1907 the Massuchase~ Supreme ~udicial Court
specifically declared that West Beach Corporation could never sell West Beach. This
ruling by the Supreme Judicial Court confirmed that West Beach must forever be held in
At the March 8, 1852 Beverly Town Meeting. the town's voters approved the
petition to inco~po, nle West Beach and also voted (according to the Town Clerk's record
of the me~n~ to instant the town's ,e~.~latlves in the Legislature "to atl~ncl to the
~ of the town in renard to the ~on oft~ proprieto, of Weet's Beach..so
as to continue the obligation of said proprietors to maintain tho causcwav hoar said Beach
and also the road ndioinitm tmon said I~__~k
To unders~_ -d the impo, anc~ of*6i~ vot~ to the 1852 Town Meeting it is
necessary to place the issue in the comm~ of the tlmes.
For the year 1852, the road and highway repair budg~ for the Town of Beverly
had been tbe s.m of $800. Yetthe March 1852 Town Meeting lind been forced to
authoriz~ the ve~ s~ificant sum of $349 to l~y for public road ropuits due to flooding
nt West Beach and Min$o B~ach in 1851 (and forsome snowmmovnl). ~,the
highway beside West Beach (which is now Route 127) was n principal connection
between Beverly and its ncighboring commuuitias to tbe north on Cap~ Ann.
The petition presentut to the Bevm'ly town meeting mmnbers in 1852 aplxtrm~y
resolved two public issues before the town: 1) how to escape the cost of flooding anmn~
to...t~.pu.bli_c. _ .mn...d....~d_. ~ ~.de..W. est_ ..~ ~ 2) ~ t0 h~._.ld ~..m. _n~.;.~. tbe
tmtoxed public/common land at West Beach for the ~sidents of two Beverly school
districts.
The petitioners for the West Beach incotp,;~.tion dcscn~ ~ proposed
corporation as a "body politic". This key phrase would hve been well t-nown to the
Courts and the legislature in 1852 as a pimue directly connected with thc legislative
establishmmt of municipal or quasi-municipal corporations such as school and fire
distri,;a or public corporations which were authorized to perform specific, essential
municipal functions.
Nearly 150 years have passed since the Massachusetts Legislature enact~ the
Special Act of 1852 (Chnpter 157) emblishing the West Beach Corporation Today, the
West Beach Corporation continually de~i~s that it ~ams incozporated in any way as a
q,,n~i-municipal or public corporation or that its Special Act of Incorporation had any
relation to the municipal operations of the town of Beverly. Thc Coqx)ration now claims
that it was and is exclusively, a private corporation without any connection or obli~tion
to the city of Beverly ~ven though it continues to attempt to avoid property taxation by
claiming to be a "public charity".
The following is a restatement oflmy fact~ e~tablished by public documents and
court records that the Charter Commission majority believes prove, overwhelmingly, that
the ~¥[n'~q~cl111'K~'~S L~l.~n'~ ~ Wf~b't B~?,h to th~ West Beach Corporation in
1852 to establish a quasi-municipal (public) corporation:
1. The petition to the Legislature in 1852 stated that the corporation would be a'qx)cly
politic". This phrase was, and is, climctly related to the establishment of a municipal,
quasi-municipal or public corporation rather than a private coqxm~on.
2. TbeLegislatu~refusedtoena~tth~ West Beach incorporation until the Beverly
Tho Wl~It ~ Col~lt~on dot~Lai~ to tho ~nss~..hl]~s~ts SHpl'OHl~ J~ ~
~m)...~ a ~i~~ ~~..". ~ We~ ~ ~on
~ ~ ~ ~ ~m~'S ~ ~ thgt ~ m~ of~ ~
~ Co~] c~ ~ ~ ~ a ~on of~ ~lic. ~ ~ ~ of
mid ~ ~ ~ ~..~ m~ ~~ ~ ~on ~ ~ ~o~ m
~ "..~ t~lnO~ ~~y ~ ~ ~ u a m~l [for W~ ~] ~
4. West 1~ ~ spegfirJ"y gnnted by.tbe !_,~,',]-~e to the gsidm~ofmo ghoul
cli~i~i~s in Beverly. These two school distrk~ no longer exist. Tbey have been
absorbed into the 8maU~ Beverly school systmn.
5. The l~imary purpose for the emblisimicnt of the Beach Corporation was to maintain
the public causeway and highway beside West Beacl~
6. Massage's courts have long reco?i~-A that the mnint~nnee ofpoblic roads is a
public duty and a responsibility that cannot be tramfmred by a municipality to n
7. By statute, the membership in the West Beach Coqmmtion has always been subject to
review by the sele~h,,en of Beverly (and now the City Council). The building of the
wall at West Beach to assist in the m*i~te~ce of the public causeway and highway
was subject to the approval of the selectman.
8. West Beach Corporation has never, until a recent taxpayer hwsuit challenged the
corporations claim to be a "public charity", paid any property taxes on West Beach.
9.. The Corporation claims it is a public ehmiW and thus exempt from property taxation,
in part, because it allows the cit/zens of Beverly to walk on the beach during the "off-
season" from Labor Day until Memorial Day.
10. Unlike a Izivate coqxa~on, ~ tmusf~r or ssle of mmnl~r~hlp rights in tim West
Beaw. h Cxnpomfion is fotbi,4d, m. M~tn~p is.entirely I~zsed upon residemcy within
11. By t~ Special Act of 1852, tl~ n~sidmts o£th~ two B~n4y school districts who
legal voters in Beverly were subject to ~sessmen~ to fired th~ m-int, m-nce of
pub~ hishv~y and caus~y beshl~ West Besck
12. Court records document the fact that the Bevcfly public had full Suamg. ~;...e access
West Beach for bathing and boatin8 both before the estn_b..S,,,ent of the West
Beaw~h ~mfi~ i~ 1852 andupm 1890.
13. Neither the l~,,~sach,,~et~ LegislaUue nor the Beverly Town Meetl.g members of
18~2 were ever informed that the West Brach Corporation would ever refuse access
to West Brach for Beverly citizem residing outside the two designated ~1
14. In 1840, a nnmt~ offlunilim; who would lafm' petition the legislature in 1852 to
establish tl~ West Beach Corl:~mtion as a quasi-municiptl corporation, attmpted to
form a private corpomtionto establishfitle and ownmhip to West Beach. Their
attmnpt to establish direct ~le and ownership of West Brach in a private corporation
~y tru~ wh~ th~ ~at ~0cts public ri~ 0r ~
16. Them is noting in the Special Act of 1852 which in any way mai~)ish~s my public
riaht to access West Beack