By: David A. Smith
Over the last forty years, while the homeowners of Napeague have been buying beachfront rights for the strip between them and the ocean, the townspeople of East Hampton have been enjoying access to the beach as if it was a public right.
Public ocean, public sky, public beach …but public access?
Sources used in this post
New York Times (October 18, 1998; deep blue sea font)
New York Sun (July 19, 2007; olive-green font)
27 East (April 1, 2011; gray-blue font)
East Hampton Star (September 17, 2014; wheat font)
Judge Garguilo’s ruling (June 2, 2015; lavender font)
Crain’s New York Business (12 June 2015; black font)
East Hampton Trustees web site; dark blue font
While that was a natural enough presumption, it was in fact incorrect, though I doubt many in East Hampton knew it until 2008, when the consortium of homeowners completed buying the last sliver of rights, and having assembled them all, began asserting them – at which point the locals, roused from their collective expectation, began asserting that the rights were no longer private because their use of the beach access had been tolerated, raising the question, Does that tolerance create a common-law right?
East Hampton bathing pavilion, circa 1920
The question isn’t rhetorical. Much of English common law derives from these customs mutually accepted over decades and centuries – and in New York, it appears to derive from a required ten years of ‘hostile, open, notorious, continuous and interrupted’ use:
See Weiszberger v Husarsky, 114 AD3d 731, 979 NYS2d 851 [2d Dept 2014]. “To acquire a prescriptive easement, a party must establish by clear and convincing evidence that the use of the property was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years”.
An East Hampton resident who had resided therein since 1915  claimed that the recreational use of the beach by the public had been continuous since the 1920’s [which] raises substantial issues of fact as to whether a prescriptive easement of the inhabitants of the Town of East Hampton currently exists.
The fishing village of Montauk, 1936
Even a lawyer much less experienced and sharp than Mr. Angel will have no difficulty exploding the probative worth of a single affidavit by a gentleman whose memory of nine decades earlier might be colored by nostalgia [Though Captain Miller sounds like a wonderful gentleman – Ed.]
In an elegiac letter to the editor on the eve of the 1997 election, Captain Miller wrote that he had “mapped out what we must face regardless of politics. I leave this to the voters who are the sailors, who will take us, and our future generations to come, on a safe voyage.”
Captain Milton Miller, circa World War II
Citizens for Access Rights has been focused so far on getting the word out about the lawsuit, Mr. Taylor said. He said he and his fellow members want East Hampton Town to preserve public access to the beach by any means possible, including using condemnation powers to claim it in the name of the public in the event a judge rules in favor of the plaintiffs.
At the moment, that threat is both theoretical and hollow: in general, inverse condemnation (as it’s known) will require compensation.
Citizens for Access Rights member Todd Brunn, who brings his two children to the Napeague beach, which is also known as Truck Beach, said the lawsuit came at a time when the town is facing large deficits and budget cuts, and is ill-equipped to defend itself.
At a fundraiser for CfAR: Brad Beyer, Kat Brunn, and Todd Brunn (note the logoware shirt)
“Unfortunately, it just boils down to the homeowners have the money to push for this and they got the town at a time when we don’t have a lot of money in the town to fight this lawsuit,” said Mr. Brunn, who lives in East Hampton and teaches at the Montauk School.
One can sympathize with their perspective … but there’s yet another aspect to consider.
6. Ownership implies maintenance, and maintenance implies ownership
Everything I’ve read about the property owners indicates their motives are framed not by exclusion – seeking to keeping people out – but by conservatorship/ civility – maintaining a lovely beach.
Where did those wheel ruts come from?
The motivation for the action, property owners say, is what has become of the beach. With no restrooms or garbage cans, the dunes have become bathrooms and the sand trash-strewn.
That won’t hold much
If true (I couldn’t find photos), which is certainly plausible, the beachfront is a ‘tragedy of the commons’ – overuse of a common resource because each user assumes that his or her use will make no difference, or being cleaned up by the environment.
The beach, nicknamed “Truck Beach,” is the only one in town that lets vehicles on it during the day.
That, at any rate, is Mr. Silverman’s stated view:
“It is not an access issue,” says Kenneth Silverman, president of one of the homeowners associations. “It is about the trucks. What we object to is the Town of East Hampton and the East Hampton Trustees asking us to host an activity that they don’t allow on other beaches, including beaches they own.”
It’s public … sort of
Meanwhile, the town has rationed beach access:
The Town of East Hampton charges non-residents to drive on their beaches; this year’s annual fee at Truck Beach is $275.
The charge – $275 [Now $375 – Ed.] – is exclusionary by design; you wouldn’t pay it for one day’s use, and you might not pay it even for two weeks’ use. (And the numbers are limited as well.) It’s a hurdle to keep casual visitors off the beach, and in all the stories I’ve perused I’ve found nobody saying it’s a bad idea – especially because of this:
Residents, meanwhile, get a free beach-driving permit.
It is one of the last ocean beaches where vehicles are allowed on the sand during the daytime hours in the summer. In fact, beachgoers say it is difficult to access otherwise, which makes it attractive to locals seeking an out-of-the-way spot when other beaches are crowded.
Thus we have the irony that those who demand a right of access to a privately-accessed beach are themselves fleeing from the public beach that has been overrun (in their minds) by others using the public beach. In short: Let us in, keep ‘those people’ out.
Do all of you bros live around here?
Meanwhile, the Town seems complicit in deflecting outsiders away from the locals’ town beaches:
The plaintiffs have questioned why the town allows driving on the Napeague beach while it is more strictly regulated on nearly all other beaches and limited to the hours before 9 am and after 6 pm during the summer.
Translation: You can drive onto our beach early, and off it late, neither of which you’re going to want to do … so why not go over to the ‘private’ beach?
Mr. Silverman said he and his neighbors would never have raised the issue of ownership if the beach had been “treated the same as other Trustee or town-owned beaches.”
The record seems clear that the plaintiffs’ beachfront has been discriminated against by rule, by permit, and by permit fee.
“The town has plenty of beachfront property alternatives where it could relocate the activity,” Mr. Silverman said.
Napeague Beach, Montauk Beach, and Hither Hills State Park
[Continued tomorrow in Part 5.]