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Apr 23, 2015 5:13 PMPublication: The Southampton Press

Appellate Court: Trustees Have No Authority Over Oceanfront

Apr 29, 2015 7:34 AM

A New York State court has declared that the Southampton Town Trustees do not have the authority to regulate the construction of sea walls or other hardened protective structures along the oceanfront.

In rulings on three parallel lawsuits on Wednesday, April 22, four state Appellate Court judges issued a blow to the authority of the Town Trustees, who had stood since the mid-1990s as the most strident barrier to the hardening of shorefronts, and might potentially cast into doubt the right of all members of the public to travel along the oceanfront beaches.

The appellate judges sided with attorneys for the village’s of Quogue and West Hampton Dunes and a marine construction contractor who had challenged the Town Trustees’ legal standing in claiming the authority to permit or block the construction of erosion control structures along the oceanfront.

The judges said that a 19th century state law had divested the Trustees of the Freeholders of authority over town lands, leaving them only with control of fisheries, bay bottoms and activities within the waters of the town.

“The Trustees have no lawful governmental or regulatory power to grant or deny permits in connection with the placement and grading of sand and earth, and the development, construction, maintenance and use of structures and lands located anywhere upon the ocean beaches situated within the boundaries of the village,” the court wrote in its ruling on the Quogue Village case, which was referenced in the ruling on lawsuits with West Hampton Dunes and Albert Marine Inc, a contractor who conducted work for homeowners in Quogue without a permit.

The rulings by the Appellate Court overturned a 2012 declaration by a State Supreme Court judge that declared the Trustees could regulate activities along the oceanfront in the interest of protecting public access to the oceanfront, which the Trustees claim is jeopardized by hardened protective structures buried in the sand.

The court's decision does acknowledge that there remains a public easement for the right to access and travel along the oceanfront, but say the Trustees do not hold authority to impose any regulations within that easement beyond controls of the gathering of natural resources like fish and seaweed.

But the Trustees’ attorney, Richard Cahn, said he’s worried that the way the court addressed the easement could leave open an opportunity for others to challenge the right of public access in a general sense.

“I am concerned that the wording of these decisions may threaten the public’s right to use the beaches,” Mr. Cahn said. “I cannot tell you for certain that the easement for all those purposes for which we use the beach is intact.”

Southampton Attorney Nica Strunk, who represented Quogue in the lawsuit, said that the public's right to use the beach for sunbathing, fishing and boating in the town is protected by other laws and is not threatened by this week's rulings, though she said that the use of four-wheel-drive vehicles may not carry the same legal protection as other uses, depending on the legal interpretation of those laws if challenged in court.

"When it comes to bathing, fishing and boating, there's no question, they're protected under a totally different body of law that is completely clear as day and hasn't been questioned for centuries," Ms. Strunk said. "There is no danger whatsoever that people aren't going to be able to use the beach. Now, I'm not sure driving [on the beach] would be part of those recognized rights."

Unlike in East Hampton Town, where the Town Trustees own most of the oceanfront beaches seaward of the dunes outright, the Southampton Town beachhead is owned to the high-water mark by the adjacent landowner. Public access has been allowed along the whole oceanfront by virtue of an easement granted in the name of all town residents by the State Legislature in 1818.

The Trustees have long claimed jurisdiction over that easement, including the right to allow four-wheel-drive vehicles to drive on the beach.

Last week’s ruling referenced specifics of the 1818 law that delineate activities commonly practiced in the early 19th century, such as gathering seaweed and launching and landing of boats for fishing and whaling. Modern day uses of the beach, like driving of off-road vehicles, could conceivably be seen as not protected under the 1818 easement, Mr. Cahn said.

Members of the Trustees also worried on Thursday that the rulings will lead to a steady erosion of the board’s ability to protect public access rights on the beach in the face of attempts by private homeowners and incorporated villages to restrict access.

“It’s a terrible loss for the Trustees and even more of a terrible loss for the public,” Trustee Ed Warner Jr. the board’s president, said on Thursday. “These rulings tell us we basically don’t have any authority on the beaches. Life here is about beach driving and surf fishing and going to the beach to do all the other stuff we do on the beaches. It would be a terrible loss for the people of this town.”

Mr. Warner said the Trustees will meet on Tuesday with Mr. Cahn to discuss whether to appeal the decision to a higher court.

The Trustees can appeal to the Court of Appeals, the state’s highest court. The Court of Appeals typically hears only arguments on matters of law and legal precedence, rather than factual issues of individual cases, and can deny a request for appeal unless asked by the Appellate Court to clarify a matter of law in one of its own rulings.

The Trustees had originally been plaintiffs in two of the lawsuits that were the subjects of the decisions issued this week, and defendants in the third.

The suits against Quogue Village and Albert Marine were brought by the Trustees in 2012 after the village and three of its residents—Paul Napoli, and Randi and Jeffrey Levine—placed rows of large sandbags along the eroded oceanfront in front of the Quogue Village Beach and the two adjacent homes following severe erosion during winter storms in 2011.

The Trustees claimed that installation of the protective barriers, which were buried under artificial dunes, were done without required Town Trustee-issued permits and violated their regulations on the types of protective measures that can be used on the oceanfront.

Following the village’s lawsuits, West Hampton Dunes filed a companion suit charging that the Trustees should have no authority to regulate activities along their oceanfront either.

In February 2014, Supreme Court Justice Peter H. Meyer ruled in the West Hampton Dune case that the Trustees did not have authority to regulate the beaches beyond controlling traditional activities that take place within the easement. In one of his earlier rulings in the Quogue case he had, however, declared that the Trustees could in fact regulate activities outside the easement, and within the village, as a means of protecting it from being threatened by erosion caused by activities of adjacent landowners.

Ms. Strunk said on Thursday that the presumption of authority by the Trustees over activities they presumed as threatening of the easement had no basis in law, and that the Trustees had expanded their authority in 1998, based on incorrect presumptions from the 1818 laws and 1900 court decision.

“The Trustees basically had been divested of jurisdiction over the ocean beaches in 1818 by the State Legislature and the … case in 1900, by the Court of Appeals, very explicitly stated that all that was left to the Trustees was the regulation of things heretofore practiced, in 1818 … which, frankly, don’t have any real significance in the modern beach-scape,” Ms. Strunk said. “If the Trustees wanted to say that someone could take no more than one carton of seaweed from the beach, that would be in their authority,” he continued. “But what they expanded to in 1998 was way beyond what they had any powers to do.”

The attorney noted that the state Department of Environmental Conservation and local municipalities maintain the authority to permit or deny the construction of most protective structures along the oceanfront.

In 1998 the Trustees amended their Rules and Regulations for the Management and Products of the Waters of the Town of Southampton, barring the construction of any shore-hardening devices without a permit issued by the Trustees. The new rules came in the wake of the construction of an infamous steel cofferdam across the front of a Bridgehampton homeowner’s property in the mid 1990s, which caused greatly accelerated erosion to adjacent properties, resulting in the destruction of one house and the severe damage to another.

The Trustees have a lawsuit pending against Southampton Village over the village building department's allowing several homeowners to erect steel walls the oceanfronts of their property, which were also buried under new dunes. Those walls were allowed by the DEC through blanket emergency permits issued following Superstorm Sandy. Attorneys for the homeowners said the walls were landward of the traditional dunes, now erased by erosion, and therefore were solely within the jurisdiction of the local municipality.

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So we pass a new law to amend and update the older ones. It would hardly be the first time legislation was modernized.

Let's get down to business Mr. Thiele.
Apr 23, 15 11:25 PM appended by Mr. Z
"The new rules came in the wake of the construction of an infamous steel cofferdam across the front of a Bridgehampton homeowners property, which caused greatly accelerated erosion to adjacent properties, resulting in the destruction of one house and the severe damage to another. "
By Mr. Z (10218), North Sea on Apr 23, 15 11:25 PM
it appears that the judges were bought by the wealthy home owners. prepare to see our beaches lined with steel and concrete seewalls.
By Jaws (237), Amity Island on Apr 24, 15 12:17 AM
You won't see them because you will not have access to them.
By tenn tom (196), remsenburg on Apr 24, 15 8:32 AM
1 member liked this comment
Appeal, Appeal Appeal. Let's have boardwalks instead of big ugly houses. How about that. Please trustees don't give up.

By rvs (88), sag harbor on Apr 24, 15 4:03 PM
This was the appeal.
By Summer Resident (217), Southampton N.Y. on Apr 25, 15 1:44 PM
1 member liked this comment
We need to support our Trustees in this , join SABA (Southampton Association for Beach Access) your dues will go into a fund to help the Trustees' legal battles.
By bigfresh (3556), north sea on Apr 24, 15 5:16 PM
1 member liked this comment
In regards to Westhampton Dunes, It was my understanding that the village drew its boundary lines before replenishing of the beaches. If that is the case then the upland property owners do not hold title to beaches in laying southward of the dunes.That then is public land.......I know that there was a period where that land was shown on tax map as public (county) land
By mrtog (6), wading river on May 4, 15 3:04 PM
This wasn't about denying the public, it was about securing and protecting properties. The Trustees are a self serving board. They play on the public's fear of not having access to the shore. It's not about the public losing, it's about them losing power and influence. These lawsuits were a waste of Trustee (public) funds. It's high time the Trustees back off their penchant for litigation and start really doing for the public. By this I mean repair and make safe existing access points as needed. ...more
By ICE (1214), Southampton on May 6, 15 7:41 PM