Court Upholds Macklowes’ Claim Against East Hampton Town Trustees

An appellate division of the State Supreme Court has upheld an East Hampton Village property owner’s claim to property at Georgica Beach that the East Hampton Town Trustees had claimed on behalf of the public.

The October 23 decision upholds a 2012 decision by State Supreme Court Justice Thomas F. Whelan, following a civil trial, that Lloyd and Barbara Macklowe’s West End Road property extends as far toward the ocean as the line of beach grass, as they had claimed. It upholds the Macklowes’ claim that the boundary was movable and defined by the location of the average southerly line of beach grass on the Atlantic Ocean beach, and that the Trustees have no title to the lands north of such line within the east and west bounds of the Macklowes’ property.

The Trustees had challenged the legitimacy of an “ambulatory” natural feature such as beach grass in defining the boundaries of the disputed property.

“The decision is based on long-standing rules regarding title to lands adjacent to ever-changing shoreline,” said a statement from Anthony Pasca, an attorney from the Riverhead firm Esseks, Hefter & Angel, which represented the Macklowes, “but it was novel to the extent that it was the first case where a court had to determine whether a boundary defined by the ‘beach grass’ line would be governed by the same rules that have been traditionally applied to boundaries defined by the ‘high-water’ line.”

In the Macklowes’ case, he continued, the beach grass line had moved, along with the beach, farther south. “The Trustees tried to claim the benefit of that movement by arguing that the boundary between Mr. Macklowe’s property and theirs was not movable, but was fixed based on the location of the beach grass line several decades earlier,” he said.

Leonard Ackerman, one of the Macklowes’ attorneys, in the same statement said the courts simply gave effect to what the Trustees had intended more than a century ago when they deeded the dunelands and vegetated areas to Mr. Macklowe’s predecessor.

“It is just unfortunate that Mr. Macklowe had to spend five years defending his title because the current Trustees decided they wanted to take back dunelands that their predecessors had originally conveyed away,” Mr. Ackerman said.

Neither the attorney representing the Trustees, Anthony Tohill, nor the clerk of the Trustees, Diane McNally, returned a request for comment on Monday.

The Macklowes in 2008 sued for a determination of the boundary line between their property and that of the Trustees’ to the south, as well as for the right to use a disputed portion of the beach.

Justice Whelan’s decision focused on deeds for the oceanfront property that reached back as far as 1900, and that he said ran counter to the Trustees’ claim that the southern boundary should be described in terms of a precise linear distance. His decision also stated that the Trustees, too, “benefit from the holding of an ambulatory boundary,” as when beach is lost to erosion.

The justice, however, rejected an attempt by the Macklowes to establish the high-water mark as their southernmost boundary.