April 13, 2011
Beach Access Debate Heats Up
By Rick Murphy
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A festering feud between a small group of oceanfront property owners and an organized group of beach-goers intensified this week as both dug in their heels for a court battle.
The town trustees own the many beaches and waterways within the town, acting as lawful stewards for the people. These rights were granted to the people by the Dongan Patent in 1686, by King James II of England through the General Governor of the territory, Thomas Dongan. It has withstood many court challenges over the years. But a Riverhead based attorney representing the property owners says it doesn't apply in this case.
A stretch of beach in Napeague, about 4000 feet long, is the epicenter of the disagreement. It is accessed primarily by truck, and has been a family gathering place for years. Therein is the rub – scores of trucks parked there anger the property owners who live nearby.
Stephen Angel of Esseks Hefter & Angel contends the trustees sold off the property in question, and it is a private beach now. "In March 1882 they sold a lot of land to [Arthur] Benson four or five miles from the eastern line of Nappeague almost to Montauk," Angel asserted. "We represent the owners of the first 4000 or so feet."
Among the clients are the White Sand Motel, whose principle owner has had some harrowing experiences over the years trying to curtail vehicular traffic on the beach, Angel said. The website of the White Sand Motel promises a "private beach" and shows no fewer than eight images of a pristine beach, sans vehicles.
No one wants to contest the right of baymen to use the beach for traditional purposes, especially fishing, and the deed specifically allows for beach access for them.
"Part of the problem is the proliferation of big four-wheel drive vehicles," Angel said. At one point a client felt "physically intimidated" by truckers and beachgoers having a nighttime party. "The people were rough on him. He felt he had to run away."
But Tim Taylor, whose organization, Citizens For Access Rights has attracted 600 followers on Facebook, said the beach driving issue is a red herring.
"Beach driving is a polarizing issue. They want to narrow the argument to beach driving," he said. "But it's much bigger than that. It's a family beach. Banning beach driving is to privatize it." As for being intimidated, his group cites numerous instances when the property owners come onto the beach, screaming at their families to get off. "We feel intimidated. We would welcome a police presence."
Over the years the town has exacerbated the problem. Only one parking lot, at the foot of Napeague Lane, is available for beach-goers, and it has only two dozen spaces. In addition, there is no parking allowed on the roads north of the beach. Several public accesses have vanished, and the property owners actually post a guard to keep foot traffic off the beach on another access they maintain is private. The only way to get to the beach is via truck, and banning trucks would in essence make the beach convenient only for the property owners in front of it. "We don't want anything that doesn't already exist," said Taylor.
East Hampton Town Supervisor Bill Wilkinson said the town board has limited options. "It's a jurisdictional issue . . . we defer to the trustees," he said. "Their obligation is to preserve the quality of the beaches and to provide access. We will not interfere unless they ask." Wilkinson acknowledged that the town is in charge of policing the beaches but didn't think enforcement to be an issue in this case.
Wilkinson and Councilwoman Theresa Quigley showed up unannounced at one of the CFAR meetings. Taylor said the supervisor urged them to embrace a settlement that would keep trucks off the beach during the summer months. When the group didn't agree, several members said, Wilkinson angrily stormed out. But Quigley recalled things differently. "We told them insuring beach access was our goal. The trustees goal is to fight." Taylor, she said, is the stepson of Diane McNally, who is the Trustees' clerk, she added, and shares her recalcitrant position. "In a lawsuit you either win or lose. We want to map out our own destiny," Quigley added.
Ken Silverman of the Dunes at Napeague Property Owners, one of the litigants, is a major contributor to the local Republican Party and a vociferous supporter of Wilkinson. Quigley said she had no idea if that was true (it is), but that it was irrelevant. "This started in 2007 when Bill McGintee was supervisor. Did he give McGintee money?"
The beach advocates are urging the town to take title to the land by condemnation should the suit filed by Angel be decided in favor of his clients. Wilkinson said that scenario was unlikely. "Somebody has to determine the value, and then we have to ask what other beaches are susceptible."
"What is fair market value," Angel asked. "Is it a million? I don't know the answer. It doesn't seem like a viable option."
But Taylor chastised the supervisor. "He took that bargaining chip off the table. Why is he showing his hole cards to these people?"
The Benson deed allegedly conveys title to all the property to the "Highwater mark" to him. "There really isn't any question about it. It conveys title to the furthest point of the property; the waterside is the crown's land. The state didn't convey the ocean to the trustees," Angel said. But even the attorney noted "it shifts every day" and there is some sentiment the term was meant to apply to where the land ends and the beach begins.
The Independent reviewed the Benson deed (see accompanying box on page 46). It is impossible to ascertain where the exact property lies without supporting documentation. There are no longitudinal coordinates, and no roads referenced by name.
Wilkinson said he doesn't believe the property in question was even part of the Benson deal. John Courtney, the longtime counsel for the trustees, said special counsel has been hired to handle the case, Anthony Tohill of Riverhead. Tohill did not return calls by press time.