Express Sessions: The Battle For The Beach

The evolution of beach access and how recent court decisions — and the response by local lawmakers — could impact use of the South Fork’s beaches in the decades to come is seen by many local residents as perhaps the most important issue facing the community as a whole.

On October 28, the Express News Group held a virtual Express Sessions forum on the topic, with a panel of local and state officials, beach access advocates and representatives of private homeowners who have challenged some claims of access rights in court and fishermen who say access must be allowed regardless of who “owns” the beach.

The panel debated the history of the “right” of access to the beaches in various parts of Southampton and East Hampton towns, how those rights have been narrowed by private development and court fights and where the push-and-pull of access allowances for 4x4 vehicles is going in the forseeable future.

“I think we can all agree that, historically, vehicular access has been a tradition in both East Hampton and Southampton, as a means to access the beaches,” said Tim Taylor, president of the Citizens for Access Rights, a 4x4 owners group that formed after Amagansett homeowners filed a lawsuit in 2009 challenging the town’s right to allow vehicles on a stretch of beach in front of their homes during the day in summertime. “With the proliferation of building along our shorelines, we don't have as many access spots as we used to and some beaches have long stretches where it's inaccessible to anybody other than really by a vehicle because a lot of the homeowners associations, whether legally or not, have petitioned for no parking on multiple roads and road ends in their neighborhoods.”

Ken Silverman, the president of one of five homeowners associations that sued East Hampton Town over its claims of authority to regulate the beach east of Napeague Lane in Amagansett — and won — said that he and his neighbors were spurred to court action not by the use of 4x4 vehicles on the beaches in general, but by the town allowing access during the day in summertime, a condition that created what came to be known as “Truck Beach” in front of their homes, effectively excluding the residents of the more than 100 homes that lie just beyond the dunes.

“Had the beach in question been treated like all the other beaches, either by legislation or by access restrictions as other beaches in East Hampton, this never would've been a lawsuit,” Silverman said. “The town, for instance, could tell people: drive down Napeague Lane and make a right, you’ve got a couple miles a beach. They did that in 2006 when the piping plovers shut this beach down.”

After 12 years of litigation, a state court ruled last winter that the homeowners actually owned the beach and could exclude the public — though with certain limitations.

Dan Rodgers, a Southampton attorney who has championed the traditional rights of fishermen, has argued that despite court’s ruling, the homeowners may not exclude “fishermen” from accessing the beach as they see fit under the terms of a reservation in the original deed.

“In 1882, when these properties in East Hampton were conveyed through the Benson deed, the deed did not convey full title to these properties — there were restrictions and that's also known as a reservation and in that reservation, it gave the residents of the Town of East Hampton, the right to fish,” Rodgers said at the forum. “It doesn't make any difference whatsoever to us who owns the beach. A reservation is an easement, it is a property right, it accrues to all residents of the town of East Hampton. It doesn't matter if the town owns it or if the homeowners own it. And we have a right to be on that beach, as long as we're engaged in some type of fishing or fishing related activities.”

Nonetheless, some said they are worried the court ruling from February is another step in a creeping tightening of the rights that local residents have when it comes to accessing and using the ocean beaches as they have since the 1600s, when the beaches were effectively the highways that linked one hamlet to another.

Kristin White, a member of the Southampton Association for Beach Access, a 4x4 owners group, said that there is concern in Southampton that the East Hampton lawsuit is a harbinger of things to come in her town.

Wealthy oceanfront homeowners have challenged the right of the public to use the beach in front of their houses in various ways over the centuries. Until the 21st century, however, they had almost uniformly been unsuccessful. But in recent years, courts have winnowed the authority of the Southampton Town Trustees, who hold an easement over all ocean beaches in the town on behalf of all residents of the town, and many fear that a future lawsuit could challenge 4x4 access in some form.

“I'm concerned that this sets a precedent that future judges can look at and future lawsuits can be upheld to, and that homeowners with deep pockets will not take no for an answer,” White said. “And if they see that this has happened in East Hampton, if they see that a judge has ruled in favor of the homeowners in the town of East Hampton, they're just going to keep at it until they get the answer that they're happy with, regardless of whether or not it's right or wrong.”

State Assemblyman Fred W. Thiele Jr. said that he sees a clear evolution in the attitudes of both land owners in the region and in the courts toward the once broadly accepted right of town residents to use the beaches more or less freely.

“The thing that troubles me … first of all, you have a changing demographic out here who don't understand the rights that the people have enjoyed for all these years,” Thiele said. “And you have a changing judiciary who seem to, from what I've seen, don't really care about British common law or something that's 200 or 300 years old. It's how they apply the law today. And what's troubling is that there's going to be the tendency to interpret these easements to say, well, motor vehicles weren't envisioned at that time. So they weren't used at that time. So the only thing that you could [use on the beach] would be an ox cart?”

Courts have already shown a tendency to see centuries-old public easements as pertaining only to the literal descriptions as they were written in the days before electricity, motorized vehicles and other common modernisms. Thiele said that court documents are no longer filed “with a quill on parchment paper” and that, just like the First and Second Amendments never considered the advent of things like Facebook and AK-47 machine guns, ancient legal documents should be looked at in light of the progression of modern society.

The homeowners in the Amagansett case say that the reservation for fishermen should be seen as applying only to commercial fishermen and only for the “landing of boats, spreading of nets and caring for fish” and that 4x4 vehicles and recreational fishermen pursuing striped bass with rod-and-reel cannot be considered part of that allowance. Silverman, the homeowners association president, said that however much residents today wish that narrow language were not in place, it was crafted by town officials themselves who were desperate to sell land to pay legal fees from another costly court fight with developers.

“We didn't privatize this beach, the Town Trustees did when they sold it in 1881 and 1882,” Silverman said. “All right, maybe they shouldn't have sold it. Then it would be a complete public resource and there wouldn't be this argument going on. But they sold it. And they sold it because they needed the money very badly. And you can't really overturn that just because it doesn't suit anybody today.

“They were the sellers, they created these easements,” he added, noting that in some other land sales the Trustees had put in different wording that specifically maintained access for other, broader, purposes. “They created the deed. They created the wording.”

Nonetheless, Silverman said that the gripes of the fishermen represented by Rodgers are not what the homeowners are trying to prevent from taking place on the beaches in front of their homes.

“Dan knows that we don't really… have a problem with these guys,” he said. “Traditionally, the fishing season is November, December through May. And if they wanted access, we can work something out with them. We don't have a problem with them. It's not in the summertime, there's not a large number of people, that could be worked out. We don't think it applies to a guy who puts a fishing rod in his truck and says, ‘I'm great, I can be here all summer.’”

But there were later legal agreements, Taylor noted, that seemed to say that the understanding of those who owned and were preparing to develop the Amagansett land that became Beachampton and the homeowners associations that filed the lawsuit, acknowledged the beaches were not under their control.

“The subdivision maps almost, without exception, say that the developers do not purport to convey lands south of the beach grass line — plain and simple, it's right there,” Taylor said. “I encourage people to look into the memos and the negotiation because you can't read this and think that the Trustees and the town and the Planning Board meant to exclude beach access.”

Both Taylor and White said that their respective groups believe the situation could be helped by town officials making more areas of the beach accessible to vehicles during the day in summertime. But both also said that private ownership, and exclusive nature it engenders, should be fought at all costs.

East Hampton Town Supervisor Peter Van Scoyoc said he disagrees with the court ruling and that the town is continuing to fight it, but noted that the court has issued a temporary injunction ordering the town to prevent all vehicle access to the beach for any purposes, and that the homeowners’ attorneys have asked the court to consider contempt of court charges against town officials for what they claim were attempts to sidestep the court’s ruling. The veteran town official also said that negotiation is possible, but that the town has started discussing the possibility of seizing ownership of the beach through eminent domain — an approach that Thiele warned was fraught with high potential costs if a judge sides with homeowners’ claims that the beach is worth hundreds of millions of dollars in assessed value to their homes.

“Condemnation is a tool, but it can be akin to trying to put the pin back into a hand grenade,” the assemblyman, who is also an attorney, said. “There's a risk because you take title to the property and then you find out what it's worth. And you just never know what a judge is going to say a piece of property is worth.”

Taylor suggested that the town could choose to condemn only certain very specific rights that would secure the traditional uses of the beach without the town challenging the title to the beach, in hopes that would mean less likelihood of a high price tag.

“I believe you could, theoretically, pick your easement and your rights where the town could maybe condemn that property from, let's say May 1 to October 1, and they can just condemn that right. And the rest of the year, the homeowners could have their private beach.”

Silverman was quick to note that perhaps the town should be looking at the flip side of that argument.

“Tim almost made the best point for not condemning,” Silverman said. “Now he’s down to 12 weeks a year … is it really worth the town to expose itself so greatly when there are other alternatives?”

White, of SABA, said that the homeowners in both towns who are challenging the rights of 4x4 owners to go use the beach as they like to are insulting the very people they rely on to tend to their needs and protect their intersts.

“I want to take an opportunity to say thank you to Tim for being a volunteer fireman,” she said to Taylor, who was signing off the panel discussion to attend a local fire department meeting. “I think a lot of our second homeowners, as well as the people who come here only in the summertime, don't realize that our fire departments and EMS personnel are volunteers. And what Tim is doing right now is leaving his family, for not a paycheck, to go and take part in protecting the million dollar mansions that are on the beach. When you go to the picnic area on a Sunday afternoon … what you will see is, I would say, 50 percent of the vehicles there are sporting a volunteer fire department or volunteer EMS plate on their vehicle.”

She and other panel participants said that if such rights are lost, it will be one more beloved local pastime lost and will hasten the flight of local residents from the area, deepening the complexities of finding those who feed the services the rest of the community relies on.

“​​​​​What you're seeing is beach access, slowly over a period of time, eroding more and more and more,” Rodgers said. “And I think people are afraid that we are reaching a tipping point. At some point somebody's going to have to push back and say the beaches are for the public.”

Silverman reiterated that public access in general has never been an issue for the Amagansett homeowners.

“I want to end on the fact, if people aren’t aware of it,” he said, “that no pedestrian has been denied access to this section of beach.”

“Yet,” Southampton Town Trustee President Eric Shultz added.