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May 14, 2012 1:18 PMPublication: The Southampton Press

Ruling Could Strip Authority Of Southampton Town Trustees To Regulate Village Beaches

May 16, 2012 10:48 AM

A State Supreme Court justice has cast a cloud of uncertainty over the future of regulation along the South Fork’s beachfront by abruptly dismissing a pair of lawsuits filed by the Southampton Town Trustees against Quogue Village and a pair of Dune Road homeowners over the use of sandbags to defend against erosion.

If the decision stands—the Trustees have said they will appeal immediately—it could have far-reaching implications, as it appears, on its face, to strip the Town Trustees of their authority to regulate the placement of any kind of protective structures along the ocean beaches, at least within the borders of incorporated villages.

“It’s a big deal,” Town Trustees President Eric Shultz said of Justice Peter H. Mayer’s ruling. “In two paragraphs, he erased three centuries of legal history. He completely fails to acknowledge the fact that the Trustees have an easement and the right to protect it.”

In the decision dated May 9, Judge Mayer granted a request for summary judgment by the attorneys for Quogue Village and two oceanfront homeowners who buried giant sandbags under trucked-in sand dunes along the ocean beach. He ruled that the Town Trustees’ authority does not give them jurisdiction over the beaches landward of the mean high tide mark, rather than to the crest of the dunes, as the Trustees have long claimed.

“The Trustees, who retain the title to the lands under water and have the power to grant rights to erect structures on those submerged lands and to take shellfish from them, do not have control of the shores and beaches,” Justice Mayer wrote in his three-page decisions on each of the cases. “The court declares that plaintiffs do not possess the right to regulate the subject beaches to protect their easement over them.”

The Trustees own title to all of the town’s underwater lands, in the name of all residents, and hold an easement over ocean and bay beaches that stretch from the dunes to the high tide line, ensuring that all residents may freely travel along the beaches, unimpeded by any private landowner or structures. In recent decades, based on their presumed authority to regulate any activity within the boundaries of that easement, they have banned the installation of “hard” protective structures—including seawalls, bulkheads, rock revetments and, most recently, the temporary sand-filled tubes or blocks of mesh netting known as Geotubes and Geocubes—on the basis that their placement could accelerate erosion of other areas of the beach, which could effectively erase the public’s easement.

The Trustees’ refusal to allow new protective measures has been the subject of numerous lawsuits over the last several decades filed by homeowners who wanted to build walls to protect their homes from storms. Last year, the Trustees contracted a North Carolina coastal geologist to draft a scientific defense of their stance against hardened shoreline protections.

Mr. Shultz said Justice Mayer appears to have ignored reams of evidence and legal precedent that does, in fact, give the Trustees the authority to regulate the beaches, with the goal of protecting the easement.

Nica Strunk, the attorney who represented both the Village of Quogue and homeowners Paul J. Napoli and Jeffrey and Randi Levine, said Justice Mayer was merely the first to recognize a very clear legislative history that stripped the Trustees of their authority over the ocean beaches nearly two centuries ago. The New York State Legislature actually stripped the Trustees of their oversight of the beaches in 1818, she said, giving it, at the time, to a group of private property owners, known as the Board of Proprietors. That control was then passed to the town’s modern government when the Proprietors sold off all their claims to the beachfront property.

“What we showed in our papers is that the concept that the Trustees have the right to regulate the ocean beach and dunes is based on mythology that had no legal basis,” said Ms. Strunk, an attorney with Esseks, Hefter & Angel in Riverhead. “I don’t think anyone had looked closely at this before. The texts are difficult—they’re old, and they’re confusing—but there’s no question that those powers were removed from the Trustees.”

Ms. Strunk noted that, in light of the recent court decision, the power to regulate protective measures on the ocean beaches would lie solely with the respective villages and the State Department of Environmental Conservation. The state agency granted permits for the installation of Geocubes to Quogue Village and the homeowners in the particular instances that led to the Trustees’ lawsuit.

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By patrickstar (67), hampton bays on May 14, 12 4:19 PM
1 member liked this comment
Silly Patrick.. Don't you know that trustees don't know jack about beach erosion..?
By The Royal 'We' (199), Southampton on May 14, 12 4:26 PM
If it wasn't for the Trustees, we would not have the beach access we have today.
By bigfresh (4666), north sea on May 14, 12 5:07 PM
i wouldn't say that trustees don't know "jack" but i think the larger issue is not really about erosion but controlling access to beaches which are more and more becoming less accessible to the general public. People buy up the land and mark their territory. i would probably do the same thing but since i cannot afford an over-priced beach property i am stuck using the 4wd which is pretty cool for this season
By bob surfer (8), Hampton Bays on May 14, 12 5:41 PM
Beg to differ, if erosion gets out of control with the reckless placement of just a few hardened structures there won't be any beach to control access to.
By shocean (16), Southampton on May 14, 12 6:28 PM
2 members liked this comment
Ditto to Mr. Shultz -- protect the Dongan Patent!

The implications of this ruling are huge indeed, both for Southampton Town, and the rest of the East End whose freeholders are beneficiaries of the Patent.
By PBR (4956), Southampton on May 14, 12 6:17 PM

Really, really8, do you mean what you say?

Maybe your post is intended to be a joke, but the Dongan Patent gave the Freeholders of the East End control over the waters of the East End LONG before there was a American Revolution and a United States of America!

Not to mention long before the State of New York, and its DEC were established.

Do the research, and please appreciate that is ONLY because of the Town Trustees have protected our rights (independent ...more
By PBR (4956), Southampton on May 14, 12 7:20 PM
1 member liked this comment
Sorry, really8?, if my previous post appeared over-righteous or pompous (in your eyes).

Your mention of the DEC as the agency of review got me going. The DEC is not a good friend of the East End at all IMO. You say the public access to the beach is "sacrosanct?" (unless the DEC says otherwise? Think about it).

The Judge missed the boat here IMO, when he did not rule more broadly in favor of the Town Trustee's right to control the beach to the dune line.

Is "all lost?" ...more
By PBR (4956), Southampton on May 15, 12 2:35 PM

"The Judge missed the boat here IMO, when he did not rule more broadly in favor of the Town Trustee's right to control the beach to the dune line."

Curious, what facts would enable him to grant powers to the Trustees not expressed in the Dongan Patent.

This ruling could effect a change in the Trustee Piping Plover Program. That program seems to be in direct conflict of interest with the Trustees mission to continue to provide beach access to the public. Closed beaches and ...more
By ICE (1214), Southampton on May 15, 12 5:49 PM
Case law has interpreted our local rights under the Dongan Patent to be broader than the original document might suggest. Such is the nature of our legal system -- a legal document is what the courts later say it is, for better or worse. Similar to judicial interpretation of the US Constitution, the intent of the drafters is considered.

Did they know about Piping Plovers centuries ago? Probably not, but that is why we have courts to fill in the blanks (again, for better or worse -- one ...more
By PBR (4956), Southampton on May 15, 12 6:24 PM
1 member liked this comment
That like is for all, but the Piping Plover portion of your reply.

Plovers are shorebirds not the waterfowl which the Trustees are to regulate. Why those particular birds needs are placed above others is odd. Being that they nest on the ground, maybe we should let ecological succession run it's coarse.

Checkout this case law for some interesting facts, as well as an example of Trustees wasting tax dollars assailing Freeholders property rights unfoundedly:

Trustees ...more
By ICE (1214), Southampton on May 16, 12 12:57 PM
The proprietors had the right to manage the commons and sell them. They sold off all of the lands in 1882. So who managed the beaches after that? 46 years later Quogue was incorporated. If management reverted back to the trustees was the management right then transferred? Is it mentioned in the incorporation papers? lots of questions. Did the judge address it in his decision?
By clammer (23), hampton bays on May 14, 12 11:37 PM
I have NO pity for the homeowners on the beach~

Everyone therefore who hears these words of mine, and does them, I will liken him to a wise man, who built his house on a rock. The rain came down, the floods came, and the winds blew, and beat on that house; and it didn't fall, for it was founded on the rock. Everyone who hears these words of mine, and doesn't do them will be like a foolish man, who built his house on the sand. The rain came down, the floods came, and the winds blew, and ...more
By Jaws (245), Westhampton Beach on May 15, 12 3:55 AM
2 members liked this comment
LOL, Scipture brilliant! LOL!

Long Island is a Glacial Terminal Moraine, we all live on sand!
By ICE (1214), Southampton on May 15, 12 5:52 PM
1 member liked this comment
I don't know anything about the legal technicalities of this case, but I know whenever there's been a fight about the waters or the shoreline, the trustees have been on the right side nine out of ten times, at least. Good enough for me. Trustees rock!
By clam pie (161), Westhampton on May 16, 12 9:43 PM
You don't know anything about the legal technicalities... of the long fights To retain rights to the open waters and beaches? Well I suggest to make it your business TODAY to research that!
You lhave no lright to call yourself clam pie or anything else connected to our heiritage! At least you redeemed yourself a bit with admission Trustees rock.
By summertime (589), summerfield fl on May 17, 12 6:58 AM
How are you doing with your English, summertime? I said "I don't know anything about the legal technicalities of this case," meaning this particular court case reported above, challenging trustee jurisdiction.

I do know about what you call "the long fights to retain rights to the open waters and beaches," or I think I do, otherwise I wouldn't have said "whenever there's been a fight about the waters or the shoreline, the trustees have been on the right side ..." I don't need to research ...more
By clam pie (161), Westhampton on May 17, 12 10:08 AM
And if you allow mother nature to wipe out the dunes than we won't have anything to argue about because the beach will be gone.
By V.O.R. (3), Rockville Centre on May 17, 12 4:47 PM
So true V.O.R. - the Trustees are constantly walking a fine line sayin "protect" (and encourage!) dune reatoration and homeowner's protecting their property in a way that is "acceptable" to the Trustees (vs. I must say - "claiming" the beach) Of course there are tose homeowners who say "this is mine" and the "have nots" who say "who cares" ... but the larger issue is, I believe, iit can work both ways. If it makes sense and doesn't cost those of us who don't live on a bay or the ocean tax money ...more
By Board Watcher (534), East Hampton on May 19, 12 4:21 PM
1 member liked this comment
The Federal Flood Insurance Program in which SH Town participates is a HUGE subsidy program for the Flood Plains in the interior of this country. The Atlantic and Gulf Coast homeowners have paid in substantially more than they have taken out even with Andrew & Katrina!

The riverine areas flood EVERY spring and the people go right back and do the same thing year after year! Spring snowmelt is not a sporadic occurrence, you can count on it.

With this taken into consideration, maybe ...more
By ICE (1214), Southampton on May 20, 12 2:40 PM
Time to get rid of the Trustees we have the DEC and a bunch of other govt bureaus to do their job. What Judge ever enforced the Dongan Patent to begin with? It was a document made before this country was even settled by the King Of England. How could it even be legal it wasn't even made by an American Governing body. How much do the trustees pay on legal fees to defend all of their lawsuits? I think they infringe on peoples property rights, and often blame property owners for pollution. Time to ...more
By chief1 (2800), southampton on May 21, 12 9:33 PM