We will fight them on the beaches: Part 4, A free beach-driving permit

July 2, 2015 | Accessibility, Beaches, Easement, East Hampton, Eminent domain, Homeowners associations, Homeownership, New York, Private property, Public property, State law, Title, Title registry, Tragedy of the commons | No comments 97 views

[Continued from yesterday’s Part 3 and the preceding Part 1 and Part 2.]

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.

napeague_beach_sunset

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?

bathing_pavilion_east_hampton_circa_1920

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.

montauk_fishing_village_1936

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.”

milton_miller

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.

brad_beyer_kat_brunn_todd_brunn

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.

OLYMPUS DIGITAL CAMERA

OLYMPUS DIGITAL CAMERA

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.

beach_garbage_can

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.”  

main_beach_permits

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.  

Just like City of Boston parking, if it’s free it tends to be over-used.

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.

west_hills_beach_amangasett

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_hither_hills

Napeague Beach, Montauk Beach, and Hither Hills State Park

[Continued tomorrow in Part 5.]

We will fight them on the beaches: Part 3, The robbers or the thieves

July 1, 2015 | Accessibility, Beaches, Easement, East Hampton, Eminent domain, Homeowners associations, Homeownership, New York, Private property, Public property, State law, Title, Title registry, Tragedy of the commons | No comments 118 views

[Continued from yesterday’s Part 2 and the preceding Part 1.]

By: David A. Smith

As we saw in the two previous parts of this week-long, beach-reading post, the beachfront whose rights of use are now in dispute has a long history and its ownership, and the division of rights of that ownership, can be traced to two critical dates: 1686, when the Town of East Hampton gained standing, and 1885, when that same town sold a 4,000-foot strip of land to a development tycoon.

brooklyn_union_gas

The energy and profit source for buying East Hampton

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

From that point on, the land was subdivided and re-subdivided as it was developed, until starting 41 years ago, the homeowners landward of the beachfront realized those rights were worth buying, and started spending money to do so:

montauk_camping

Nice beach – or is it?

An investment manager from Manhattan who purchased an oceanfront home in East Hampton 15 years ago [That is, in 1992 – Ed.], Marc Healie, says that during the week the view from his balcony is one of the world’s most beautiful vistas. On weekends, he says, it’s a far different story.

In front of Mr. Healie’s multimillion-dollar home in the village of Amagansett, a large swath of prime beach real estate is being overwhelmed by trucks and SUVs that drivers are parking bumper-to-bumper along the water, often staking out spots for the entire weekend, and turning the beach into a makeshift parking lot. The popular tailgate beach scene is fueling a quarrel between New Yorkers with weekend homes and the trustees of the town who control the beaches over who has a right to have access to the waterfront.

“They’re blasting the radios in their cars while sitting on the beach,” Mr. Healie said. “I hear it 100 feet away when I’m trying to enjoy the peace and quiet on my own property.”

helicopters_east_hampton

And the newest nuisance …

To be sure, those who now live along the beach are much richer than those who used to live there.

(A member of one of the homeowners associations that is a plaintiff in the case is Cindi Crain, who is on the board of Crain Communications, Inc, which owns Crain’s New York Business.)

cindi_crain_virgin_bush_safaris

Not often in East Hampton: Cindi Crain of Virgin Bush Safaris, “a company where exclusivity, style, active adventures and connection with the bush are paramount.”

Most people drive trucks onto the beach from Marine Boulevard. The nearest legal parking area is at the end of Napeague Lane, which Mr. Taylor said is about a quarter-mile from the beach.

That’s only a five-minute walk, which seems little enough hardship to have to endure, especially if it keeps trucks off the beach. 

Members of the group [Citizens for Access Rights] say that even disallowing beach driving at the site would effectively block it off to locals, because driving is the only feasible way to get there.

The eminently quotable bayman Stuart Vorpahl was ready with an opinion:

“It’s taken on an ‘us’ versus ‘them’ quality,” the East Hampton town historian, Stuart Vorpahl, said in an interview.

stuart_vorpahl_pointing

“As it clearly states in the patent …”

It’s certainly become contentious; the East Hampton Star is full of articles on the subject, with escalating rhetoric:

“The largest jewel in the crown of East Hampton may be stolen from us, the citizens of East Hampton,” said Betty Mazur to the board at the (April 14, 2011) meeting, referring to the ability for residents to traverse all of the town’s waterfront stretches.

betty_mazur_east_hampton

Speaking out against having the crown jewel stolen: Betty Mazur

 “I’m very nervous about it, because I’m not sure that we’re going to be able to stop the robbers or the thieves — I’m talking about the group of landowners on Napeague who are looking to control a [long] stretch of our incredible beach, and that of course is the jewel in the crown.”

moriarty_jewels

You mean they’re not mine?

“I don’t much appreciate the invictus or the slander and libel that we’ve heard here tonight, and I take it very, very seriously,” Mr. Silverman said to the board, apparently referring to Ms. Mazur’s comment that a jewel in the crown of East Hampton “may be stolen.”

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????????????????????????????????????

Not appreciating the slander: Kenneth Silverman

5. ‘Custom’ does not necessarily grant rights

“The beach is not a private resource,” said Mr. Vorpahl, “and they’re trying to turn it into one.”

To be pedantic, the beach is unquestionably public, but the beachfront is private, and the question is whether the ‘spread the netts on the adjacent sands’ easement includes spreading picnic baskets, folding chairs, and trailers.

To be decided at trial is whether the easement described in the Benson deed has been expanded through the years to include non-fishing activities, such as swimming and bonfires.

long_island_beach_buggy_association

Is this fishing?  The Long Island Beach Buggy Association

I don’t see how it could be (fishing is fishing, not sunbathing); nor could Judge Garguilo, and he had plenty of New York State precedent to cite:

The nature and extent of use of an easement may be enlarged or changed (see Tamburo v Murphy, 72 Misc 2d 120, 339 NYS2d 693 [Sup Ct, Cayuga County 1970], affd 40 AD2d 94 7, 340 NYS2d 881 [4th Dept 1972]).

Nevertheless, the subject easement may not be enlarged to include uses completely foreign to the grant, such as recreational purposes, including picnicking, sunbathing, boating and bathing (see H.H. Apartments, Inc. v Beachcliff Realty Corp., 8 AD2d 966, 190 NYS2d 861 [2d Dept 1959], affd 8 NY2d 760, 201 NYS2d 777 [1960]).

I can also understand how the locals feel a special need to preserve their access to this beach – for a couple of decades the Town of East Hampton has been chiseling away at these same beach-access rights:

Twenty or thirty years ago, said Ken Silverman, the nearby beach at Napeague State Park was a haven for locals, but that changed after the state stopped accepting town vehicle permits there.

The trucks thus migrated to Napeague’s beach:

napeague_beach_bugs

Those black bugs are trucks and SUVs

The litigation dates to 2009, when a number of homeowners’ associations and individuals, as well as the owners of the White Sands Motel, banded together to sue the town and the trustees, whose ownership of the beach on behalf of the public has been assumed for more than 300 years.

[Though the subordinate clause is false, I’ve retained it and bold-faced it as a reminder that journalism is often sloppy and superficial; thus, while the blog is predicated on desk-based research using available sources, the sources themselves can be unreliable, so judicious discretion is allowed in interpreting or challenging the reporting. – Ed.]

truck_path_through_dunes_rattray

I see the marks of the urban truckbuck …

In judging the litigation, it’s noteworthy that in addition to the beachfronts being private, the property owners have been demanding that so long as public accessibility is being taken for granted, the Town of East Hampton should manage it:

The lawsuit followed years of complaints about the use of portions of the shoreline by four-wheel-drive vehicles.

Technology + Urbanization = Ecosystemic stress

stress_begin

More people coming?

In an affidavit, Kenneth Silverman, the president of the Dunes at Napeague Property Owners Association, said vehicle traffic on the beach has increased dramatically over the last 20 years, with as many as 150 to 200 parked there in recent summers, and as many as 300 to 600 passing near his house on summer days to access the beach.

That would be quite a disruption.

[The vehicles] load and unload beachgoers and their wares on summer weekends. This, the plaintiffs argue, goes well beyond the fishermen’s waiver.

Stress finds a political expression:

The Seaview at Amagansett group has contended that the trustees and town have “created a de facto parking lot and bathing beach on the subject property.”  

The plaintiffs’ lawyer, Mr. Angel of Esseks, Hefter and Angel of Riverhead, argued that the Benson deed did not cover these recreational uses.

As we’ve seen, ‘spread the netts on the adjacent sands’ is fairly clearly not swimming/ sunbathing.

An affidavit included in the court papers from the late Milton Miller, a bayman who died in 2012 at 97, countered that people had sunbathed, swum, and picnicked there since at least the 1920s.

Perhaps they had; does the tolerance of these activities create a common-law right? 

ditch_plain_montauk

What do you mean I don’t have the right to be here?  Ditch Plain Beach, Montauk

[Continued tomorrow in Part 4.]

We will fight them on the beaches: Part 2, Spread the nets on the adjacent sands

June 30, 2015 | Accessibility, Beaches, Easement, East Hampton, Eminent domain, Homeowners associations, Homeownership, New York, Private property, Public property, State law, Title, Title registry, Tragedy of the commons | No comments 126 views

[Continued from yesterday’s Part 1.]

By: David A. Smith

Such is the nature of land title that words written long ago can have enduring meaning,) – and as we saw in Part 1 of this post, about a stretch of photogenic beach in East Hampton/ Montauk, New York, such is the nature of America that land and title issues were being adjudicated long before we had a country, with consequences that are still sources of tension today, as the town itself was created by royal decree:

The patent was in part an effort to soothe East Enders who believed their land was part of the independent colony of Connecticut, not the crown colony of New York.

goody_garlick_east_hampton

Goodwoman (Goody) Garlick, tried for witchcraft in East Hampton, NY, 1657

By vesting in these individuals rights over land for benefit of the public, King James II thus set them up as a pre-urban government:

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

Though the granting sovereign was deposed shortly thereafter, the sovereignty overthrown a century after that, and the town of East Hampton governed by a new form, that same patent (as it’s called) remains effective today:

The Trustees of the Freeholders and Commonalty of the town of East Hampton represent the original government of East Hampton. The Trustee positions were created and granted sole authority over the Town of East Hampton, by King James II through the Dongan Patent dated December 9, 1686.

It also defined the governance of the government: by election.

Although the Nichols Patent had defined the boundaries for the Town of East Hampton in 1666, the Dongan Patent is one of the earliest of the New World documents to provide for a representative government by elected officials in North America.

As the original governing body of East Hampton, the Trustees managed and made allotments of the Town’s “common lands.”

john_mulford_house_1680_east_hampton

John Mulford’s 1680 House, East Hampton, NY

Even today, 328+ years later, that form of governance continues to apply, at least to certain of East Hampton’s lands:

Since their creation in 1686, the Town Trustees have continuously functioned as an autonomous governing body and represent an important historic link to the earliest roots of our democratic Nation.

[Apparently (I’m not going to research it) the trustees operate in parallel with town government (‘autonomous governing body’), an anachronism that may have contributed to the curious sales and resulting fact pattern here. – Ed.]

As custodians of public lands, the trustees have had the authority to sell it – and, for reasons that will appear a little later on, that they did:

In 1882, those trustees sold 1,000 acres to developer Arthur Benson.

fowler_to_benson_signature

“Relinquish all his right title”

Gilded Age tycoon Mr. Benson developed Bensonhurst in Brooklyn –

Brooklyn_neighborhoods_map

Northeast of Lower New York Bay, bordered by Bath Beach, Dyker Heights, Borough Park, and Gravesend

– founded the Brooklyn Gas Company, and owned all of Montauk –11,500 acres (18 square miles) – which he had bought at auction.

Part of that parcel was 4,000 feet of beach between what is now Napeague Lane and the western border of Napeague State Park, which Benson could have as long as fishermen still had the right to work it.

Mr. Benson’s ownership was thus subject to an easement, which remains in force 125 years later and whose terms became an issue:

However, the court found that the 1882 deed to roughly 1,000 acres in which the trustees sold the area to Arthur W. Benson, a 19th-century land speculator and founder of the Brooklyn Gas Light company, reserved certain rights to the townspeople as a whole that continue to the present.

These assurances included landing fishing boats and the right to “spread the netts on the adjacent sands. . . .” The Benson agreement, Justice Garguilo wrote, remains binding to this day.

Many such ‘traditional use’ easements exist in the history of American land aggregation – Eskimo whaling rights come to mind – and are contractually respected.

eskimo_whaling_hunt

After the successful hunt

Indeed, such rights are still claimed in East Hampton (New York Times, October 18, 1998):

Stuart Vorpahl lives in a world where local fishermen can take what they please from the water without interference, with no permits or licenses, no regulations, disregarding quotas and size limitations.

This world, he insists, is the East End of Long Island.

stuart_vorpahl

Is Vorpahl’s word a vorpal sword?

Fighting a recent charge that he was fishing without a license, Mr. Vorpahl, 58 [in 1998 – Ed.], a lifelong East Hampton bayman and commercial fisherman, is setting out to prove he has a legal right to do as he pleases to make his living.  

The Dongan Patent, issued in 1686 by Thomas Dongan, then the Governor-in-Chief of the Province of New York, granted ”freeholders and inhabitants” of East Hampton the right to ”enjoy without hindrance” the ”fishing, hawking, hunting and fowling” within its borders forever, subject only to the administration of ”one corporate body to be called by the name of trustees.” East Hampton has been electing a Board of Trustees ever since. Mr. Vorpahl himself served on the board for 10 years.

”I abide by the Trustees’ permits,” Mr. Vorpahl said. ”The Federal and state licenses are out of the loop. As far as I’m concerned they’re Johnny-come-latelys.”

vorpahls_banner

Not too stodgy to know political theater: the banner in Mr. Vorpahl’s boat

Mr. Vorpahl’s main antagonist is the state Department of Environmental Conservation, not the Town of East Hampton. The Board of Trustees ”does not even recognize the D.E.C.,” said James McCaffrey, the deputy town clerk and a longtime board member who served with Mr. Vorpahl. He said that ”the stupid general public accepted fishing licenses and regulations” though the patents make it clear that town inhabitants don’t have to abide by them.

Mr. Vorpahl has spent more than two decades fighting to maintain his Dongan Patent rights, which he and others still fish in a traditional way.

montauk_fishing

Bonackers fishing off Montauk

While the Trustees retained beach access rights on other pieces of land they sold, this agreement allowed them only to land fishing boats at the spot, the plaintiffs argue.  [Emphasis added.]

Though of course, as society changes through urbanization and technology, what constitutes a ‘traditional use’ is expansively reinterpreted, especially if that expansion occurs steadily, over the years and decades, without being challenge:

“Any settlement or any ruling that keeps the locals off that beach during the summer when everybody wants to enjoy it is really unacceptable to our group, and will not have the support and the backing of our group,” said Tim Taylor, an East Hampton land surveyor whose family history stretches back 13 generations in East Hampton.

4. Beach front is typically owned, bought, and sold

montauk_beaches

The Long island Railroad ends in Montauk

Ever since the Civil War and the rise of railroad travel (if not earlier), the East End of Long Island has been enjoyed as a vacation spot.

east_hampton_1873

East Hampton 1873: note the oceanfront bathing houses and lifeboat houses

Where there is tourism, there are rises in land values, and when these happen, so rise the lawsuits:

Mr. Silverman said the Trustees sold the beach to Mr. Benson to raise money after losing a series of land-related lawsuits between 1850 and 1880.

While this is a small detail, I think it’s relevant: when the Trustees sold the land in 1885, they knew what they were selling – access rights – and to whom – a tycoon and land developer.  The trustees’ heirs in governance can’t claim their predecessors were bamboozled.

Since 1882, individual tracts of the beach [Probably beachfront – Ed.] have changed hands between private owners 155 times.  

ocean_avenue_1880s

Ocean Avenue, East Hampton, 1880s

In 1973, some of it was bought by the first of the homeowners associations.  

In 2008, the fifth association acquired the last of it, and within a year, the group of five sued the town and its trustees, contending that they were the rightful owners of all 4,000 feet.

The homeowners associations’ actions call to mind Robert A. Heinlein’s legalistic tour de force, The man Who Sold the Moon, in which entrepreneur Delos D. Harriman buys all global rights to the Moon by buying the fractional interest of every nation of which the moon passes, using the old ad coelum et ad inferos legal definition that the owner of a parcel owns it to infinite sky (coelum) and the center of the earth (hell, inferos). 

“We have a chain of title from Arthur Benson in 1882 to our plaintiffs in 2015,” said Stephen Angel, attorney for the plaintiffs.

Hence, if he owns the fractional share of every country over which the Moon passes, under human law he owns the Moon.

napeague_lane_east_hampton

To reach the public beach, you have to cross private land (including, one presumes, the end of Napeague Lane)

By methodically buying all the access rights along that 4,000-foot strip, including the rights covering the access on Napeague Lane, the plaintiffs have assembled a legal chain link fence that they claim gives them the right to block access across their land.

“This is not an issue of private property owners trying to privatize something,” said Ken Silverman, a lead plaintiff. “The beaches were privatized 129 years ago when the Trustees sold them.”

Of course, with rising urbanization has come rising premium value for beachfront property, and that creates conflict between locals, weekenders, and vacationers; and class-based friction between old salts, old money, and new money.

napeague_clam_bar

Napeague Clam Bar

Those fighting for continued access to the beach describe it as the last refuge for locals in the summer, where they can park trucks laden with families, surfboards, coolers and grills and enjoy a half-day off from work.

On the weekends, quiet enjoyment can take on a whole new meaning:

[Continued tomorrow in Part 3.]

We will fight them on the beaches: Part 1, To the high-tide line

June 29, 2015 | Accessibility, Beaches, Easement, East Hampton, Eminent domain, Homeowners associations, Homeownership, New York, Private property, Public property, State law, Title, Title registry, Tragedy of the commons | No comments 61 views

By: David A. Smith

An immense amount of human history can be explained by a geometric fact: a two-dimensional space can be blocked by a one-dimensional barrier. 

napeague_lane_looking_east

Gateway to litigation: Looking east from Napeague Lane

Castles have walls:

beaumaris_from_air

One does not simply walk into Beaumaris

Pies have tin:

key_lime_pie_tin

Rivers have dams that make lakes:

hoover_dam_lake_mead

Borders have fences:

rio_grande_border_fence

Beaches have homeowners’ associations:

napeague_beach_from_a_distance

Magnificent beach … but you have to get to it

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

Despite this blog being dedicated to housing, I’ve written several times before about beaches because beach disputes display in microcosm three great issues of urbanization:

1. Public property and the right of easement/ access.

2. Private homeownership and the right of property.

3. Changing public-private boundaries based on changing urban technology.

As we’ll see, shifts in demography (more people) and technology (more horsepower) create a tension between what ‘the community’ (whoever they may be) thinks they should have as of right and what the legal documents originally meant.

Along the way, we’ll encounter poor versus rich, old money versus new money, agriculture versus urbanization, law versus politics versus neighborliness.  East Hampton may be an enclave on a tine of a fork of an island off America, but it illustrates in small and many an issue for our twenty-first century world. 

buy_homes_on_long_island

Frequent and fast trains.  Cheap fares.

1. The beachfront battleground

Anybody heading out to East Hampton this weekend should remember to pack lots of water, wear plenty of sunblock and take lots of selfies—because soon your favorite public beach may not be quite so public.

A Suffolk County judge [Jerry Garguilo – Ed.] has concluded that 4,000 feet of Atlantic Ocean beachfront –

‘Beachfront’ is a critical word, both geographically and legally; it bears watching.

– managed by the East Hampton Trustees is actually deeded to a collection of homeowners associations that have been trying for years to limit activities on their stretch of paradise.

‘Actually deeded’ is journalistic he-said-she-said shorthand – the question isn’t about its deed ownership, which as we’ll see is unambiguous, but rather whether an easement across the ownership applies as the locals would like it to apply.

Now the case will go to trial.  If the plaintiffs—five homeowners associations and four individuals—triumph over the Town of East Hampton and the East Hampton Trustees in court, they will be officially recognized as the rightful owners of the property –

Again, that’s a misstatement – it’s not ownership but easement right to be tried.

– allowing them to determine who can use the beach—and how.

napeague_roads

I sense trucks have been by here: Napeague Beach

2. Beaches are public, beachfront is private, and access is often by easement

At the risk of oversimplifying, common law tends to recognize three types of land:

Property.  Land that is never submerged by tides.  Inherently private unless deeded to the public.

Beach.  Land that is normally submerged in the tidal cycle.  Inherently public.

About 30 of the beachgoers have been meeting at Ashawagh Hall for the past few weeks under the banner of Citizens for Access Rights [Acronym CfAR – Ed.], looking to find ways to resist what they see as the privatization of a beloved public beach.

ashawagh_hall

Give me beach access or give me … beach access!

According to one of their leaders, Tim Taylor, they represent a larger group of about 300 beachgoers who signed a petition last summer.

tim_taylor_cfar

Taylor claims to speak for many

When public land abuts private property, those with the private property tend to view the public land as implicitly theirs – especially with beaches, because unless one arrives from the ocean, to use the beach requires traversing the beachfront, and it is along that beachfront the homeowners and their homeowners association have set up their picket lines:

According to the Seaview complaint, the holders of town-issued beach-vehicle permits congregate during the summer months on a 4,000-foot-long section of beach. The plaintiffs allege that the visitors set up tents and grills, allow dogs to run free, and swim without lifeguard supervision.

They say that speeding vehicles are a risk to residents, their employees, and guests, and that some trucks are illegally parked on beach grass, which could destabilize dunes.

Public land can also create public nuisance or public risk:

cleaning_up_montauk_beach

Also claimed is that bonfires and fireworks set off by beachgoers are a risk to upland properties.

Beachfront.  Land that is mainly dry, but occasionally wet when the tides are unusually high.  As such, it is seldom buildable without deep footings being sunk. 

Citing another recent decision in which Lloyd and Barbara Macklowe sued the trustees over a property at Georgica Beach, Justice Garguilo wrote that the private parcels ended at a moving boundary formed by the seaward edge of the beach grass.

malibu_beach_house

Where’s the property line?

Beachfront can be considered Private or Beach depending on factual and legal records, and in the case of this East Hampton strip, the judge made a finding of act and ruling of law:

In his decision, Justice Garguilo agreed with the White Sands plaintiffs that their properties extended to the high tide line, dismissing three points made by the trustees and town lawyers in motions seeking to have that suit thrown out.

lily_pond_lane_mansion

Beach, beachfront (where the stairs begin), property

3. Beachfront ownership goes back centuries, to a pre-urbanized time

When America was colonized, those who settled bought land from the natives and then claimed ownership based on a grant of land rights from their sovereign king.  Some land grants were private; some were for the common good.

nichols_patent

Title starts from here: a Nichols patent of East Hampton

In 1686, England’s King James II granted a group of trustees authority over the common land of the Town of East Hampton, including the beaches, inland waterways and ponds.

james_ii_1686

I’m the sovereign … until I flee, that is

Land ownership and government jurisdiction over private land (ergo, right to impose law and taxes) have been part of American history since the beginning:

[Continued tomorrow in Part 2.]

Month in Review: May, 2015

June 26, 2015 | Blogs, Boston, CalPERS, England, Essential posts, Month in review, Municipal bankruptcy, NIMBY, Parking, Stockton, United Kingdom, Workforce housing, Zaatari | No comments 179 views

By: David A. Smith

There’s never a straight man in Monty Python — even if one character appears relatively sane, that illusion will shortly be upended. 

upended

Too much bull?

Similarly, voters in England who might reject the Monster Raving Loony Party could have hoped that among the remainder – Conservatives, Labour, Liberal Democrats – there might be found at least one Sensible Party, could have been forgiven for concluding that the entire nation had gone completely gaga:

election_night_special

And it could be the first result of the evening …

At least, so it clearly seemed from an examination of their respective housing phantasms, as I explored in Speaking on behalf of the NIMBY party: Part 1, Hugely popular but widely blamed:

The shorter the election cycle, the dumber the political vaporware, and as the United Kingdom barrels down toward the most confusing and hard-to-predict election for many decades, the buffoonery is rising to a silly crescendo.

cameron_despicable

“The truth is he [Miliband] is weak and despicable.”

miliband_feeble

“When did he [Cameron] lose his nerve?  These are pathetic, feeble excuses.”

The parties all agree that Britain has a huge housing problem, it’s the other parties’ fault, and it’s too late to do anything with their suddenly-discovered brilliant ideas until after they are elected.  To illustrate three divergent perspective, here are three equally opinionated (“we’ll report the right opinions, then give you the facts to support them”) stories:

Opinionated sources used in this post

(font colored in rough approximation of party affiliation)

Financial Times (February 12, 2015; by Jim Pickard and Kate Allen, tory blue)

BBC (April 14, 2015; by Robert Peston, Lib Dem orange)

Financial Times (April 26, 2015; by Judith Evans and James Pickford, Labour red)

Spoiler alert: None of these proposals show any awareness of the UK’s housing ecosystem.

uk_ecosystem_in_brief

Distorted as little as possible

Nor did the silliness stop with the Tories, as I showed in the ensuing Part 2, a genuinely stupid idea, Part 3, The fundamental problem is one of supply, Part 4, Not motivated by electoral considerations?, and Part 5, A lack of understanding of the economics:

Meanwhile, so-called “rogue landlords” whose properties fall below basic standards would face tax relief cuts.

I’m all for rigorous enforcement of building code standards, and for pressuring slumlords until they get out of the business, but that won’t do anything to improve supply.

Mr Miliband defended the policy on Sunday with reference to Ireland, where rents can be reviewed only once a year and cannot exceed the market rate.

After a six-month probationary period, Irish landlords cannot end a tenancy, except for certain specified reasons, until four years have passed.

“In 2004 they introduced this system and it has worked. There are more people renting in the private sector in Ireland than there were 11 years ago. This is the right policy,” Mr Miliband said.

Do you remember the EU’s Irish cramdown, Mr. Miliband? 

ed_miliband_resigns

I’m too busy trying to forget my own election

Silliness, to be sure, is not solely the province of the English – nor is blinkered philistine pig-ignorance (to quote John Cleese as an architect) restricted to the English upper classes.

Mr Wiggin Monty Python architects sketch

“Um, are you proposing to slaughter our tenants?”

[Puzzled pause]  “Does that … not fit in with your plans?”

In fact, such shortsightedness flourishes in tony Marin County, as George Lucas found repeatedly over more than a decade before he used the dark side of zoning, as chronicled in May the (work) force be with you: Part 1, Resurrected a defunct homeowners’ associations, Part 2, Facing death by delay, and Part 3, Fearful bigots oppose extraordinary gift:

As established in yesterday’s Part 2, George Lucas’s ‘neighbors’ (term used in its geographical sense, not in any sense of sociability) had thwarted his original plans to develop a sophisticated and jobs-creating film studio on his property, and then exhausted his second possibility, affordable housing using the available programmatic series, and they thought they had won –

ewok_stole_bike

– only to be outfoxed by Mr. Lucas using the dark side of his wealth, and proposing (gasp!) to use his own money entirely and to build only what he needed no further permission to build (double gasp!).

reverse_incumbency_question

Let’s apply the reverse-incumbency principle:

What if Marin already had 224 apartments of workforce family housing and elderly housing, located on land owned by Mr. Lucas, and Mr. Lucas declined to renew the at-will arrangement, and instead proposed that PEP Housing do as Mr. Jobs’ neighbors wanted him to do, cart up the buildings and relocate them elsewhere, so that he could restore those 52 acres to their natural, pre-development state?

The neighbors would crucify him.

han_solo_frozen

Give us back our workforce housing

Although NIMBYism may beat in the hearts of all of us, it erupts visibly most often in the strongest markets, which can afford to spray development repellant about liberally (as it were), versus towns whose economy is noisily wheezing, like bankrupt Stockton, CA, will do anything to bring in new investment, as covered in Folly or catalyst? Part 1, “I bought strong locks”, Part 2, “With bankruptcy being over”, and Part 3, “Something Downtown Stockton can be proud of”:

As we saw yesterday, arresting Stockton’s economic decline became possible only with bankruptcy and its slashing of liabilities, which made the city once again creditworthy and which also enabled it to rejoin the community of municipal entities reinvesting in their downtowns.  But to correct that neglect, and reanimate the hollow urban core, requires the first property re-entering the market to be financially and visually reinforced, so that both bankers and neighbors would be swiftly convinced it would work:

[Extensive snip]

“It won’t be an old hotel converted to (single-room occupancy). It’s going to be something downtown Stockton can be proud of. It’s a catalyst.”

Change is being catalyzed in downtown Stockton, as reported three weeks later in the Stockton Record (March 30, 2015; Kelly green font):

cal_weber_fencing

Raymond Cavazos, left, and Samuel Mora put up fencing as work begins for construction and renovation at the site of what will be the Cal Weber 40 affordable housing development at California Street and Weber Avenue in downtown Stockton.

Construction is work, and that means jobs.

Because Stockton went into bankruptcy (and has now just emerged), that city’s future is headed upward, unlike that of the pre-bankruptcy Windy City, where we may have seen the fall of Chicago’s first domino:

Scarcely had I finished posting Chicago’s pre-obituary (A tale of two cities, Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9, Part 10, Part 11, and Part 12) than the first domino fell, as reported in the Chicago Tribune (May 8, 2015), with its echo event four days later Chicago Tribune (May 12, 2015; brick red font):

The Illinois Supreme Court’s decision to toss out the state’s pension reform law dealt a triple blow to Mayor Rahm Emanuel’s difficult task of shoring up Chicago’s shaky finances.

It’s not a triple blow, it’s a single blow with three consequences:

Moody’s said Chicago’s rating could be cut if Illinois courts find pension reform laws enacted to shore up the state’s financially ailing pension system and for two of Chicago’s retirement systems are unconstitutional.

‘Could be,’ in this context, is a euphemism for ‘your darned right it would be.’

heisenberg_youre_god_damn_right

No uncertainty here Heisenberg, just principle: “You’re God-damned right we’re cutting the rating”

Four days later, the rating was cut.

With jobs come people, with people come cars, and with cars comes the pricing of street-sleeping vehicles, which means that once Out of the parking, endlessly circling: Part 1, It’s yours for a couple of days, Part 2, An hour to find a space, and Part 3, Going through all the drama:

Out of the parking endlessly circling,

Walt Whitman (paraphrased)

walt_whitman_28

I sing the auto electric

As we humans are easily enslaved by our metal overlords, we gradually internalize our masters’ needs – their room for living space, their restless urge to roam, and their need for curbside access, as reported unsympathetically in the Boston Globe (January 20, 2015):

Jenny Wahoske, a 35-year-old executive assistant who shares a car with her partner, has to be strategic to snag a parking space near her South End condo.

Legally, no one owns the street, except in snow emergencies, where Mayor Walsh imbued a common-law rule with judicial force:

south_end_bans_spot_savers

Banned in Boston?

Finally, during May I posted four more parts of the mega-post Ten years a blogger, covering my discoveries and tentative findings about housing’s impact on and because of evolution in technology, cities, land, jobs, in Ten years a blogger: Part 11, Evolving building technology, Part 12, Housing and cities, Part 13, Housing and urban land uses, and Part 14, Housing and mobility:

All this thinking about spontaneous communities and how cities grow culminated in a rationally angry post about Zaatari, the instant unloved city (July, 2013), which became a course of research leading to a book, available for free download, that curated the state of Zaatari, even as Syria collapsed into a microcosm of the warlord state of barbarity.

zaatari_book_cover

Eull e-book downloadable here

The essential role of housing as continuous nutrient for and renewal of cities are unearthed in this Top-25 post (April 21, 2011) Economic nitrogen fixing: Part 1, import and recycle nutrients