Napeague Beach Battle Rages

Some push for condemnation to keep sands public
4,000 feet of ocean beach -Google Map
Litigants’ claim that the ocean beach between Napeague Lane on the west and Napeague State Park on the east is private property.

     A court ruling that could result in the loss of one of East Hampton’s founding common rights has reignited the long-simmering debate over beach driving, which now pits Napeague residents suing to privatize the beach in front of their property against beach drivers who have enlisted Facebook to advocate public access and the boycotting of one litigant’s business.
    The actual defendants in two separate suits are the East Hampton Town Trustees, who claim the beach on behalf of the public, and the town board, which shares oversight of beaches.
    The effort to claim title to 4,000 feet of ocean beach down to the high-water mark — and thus cut off a popular beach-driving destination in summer — is embodied in suits filed by the White Sands Motel Holding Company as well as the Seaview at Amagansett association, a number of other property owners associations, and individual plaintiffs.
    They contend that the 4,000-foot stretch in question has not been part of the trustees’ portfolio of common lands since 1882 when the board sold it to the developer Arthur Benson for $1,375.
    Arguments were submitted to State Supreme Court Justice Melvyn Tanenbaum yesterday in Riverhead. At the same time, members of the town board are exploring the possibility of condemning the beach as a last resort.
    On April 7, passions rose to the boiling point during a town board work session when residents accused the town board of not doing enough to defend against two pending suits. Board members insisted they were working behind the scenes.
    Since then, defenders of the right to drive on Napeague’s ocean beach have stepped up their digital protest on Facebook under the banner of CfAR, an acronym for Citizens for Access Rights. As of yesterday, the group’s Facebook page had gained a considerable following. Recent postings urged members to attend a meeting that was held last evening at Ashawagh Hall in Springs.
    A few postings suggested people boycott Bernard Kiembock’s Village Hardware store on Newtown Lane in East Hampton. Mr. Kiembock is the owner of the White Sands Motel, a plaintiff in one of the Supreme Court cases.
    “I’m afraid for my safety. I don’t want to walk around at night. I never expected that. The amount of hate out there. The hardware store has nothing to do with it,” Mr. Kiembock said on Monday. He added that it was not beach driving that was at issue, but beach parking. He said he had filed suit not to keep people off the beach, but to learn whether the high water boundary line shown on his and his neighbors’ surveys was indeed accurate.
    Facebook contributors have posted photos of their children enjoying the beach to underline its importance to local family life. Others offer strategies:
    “If the Napeague property owners succeed then the public has the right to reappraise that land at a higher value and collect back taxes. Suitable interest and penalty should apply, especially since the land hasn’t paid its fair share since 1882,” suggested Danny Owen on the CfAR page.
    “The strength will be in our numbers. Keep spreading the word,” was Tito Syl’s April 14 Facebook posting.
    East Hampton Town Trustees, and the town’s municipal government, the named defendants, are concerned that numbers may not count when Justice Melvyn Tanenbaum decides on the litigants’ claim that the ocean beach between Napeague Lane on the west and Napeague State Park on the east is private property.
    Litigants say they can prove that the chain of title from the Benson deed has been passed down to them, making the beach private to the high-water mark. The trustees have always claimed the beach to the toe of the dune.
    Yesterday, Justice Tanenbaum accepted the arguments of Stephen Angel, lawyer for the plaintiffs, and of Anthony Tohill for the town. Mr. Angel has also filed a motion for a summary judgment and restraining order that would keep the public off the beach above the high-water mark west of Napeague State Park. The same motion is expected to be filed for the beach in front of the White Sands Motel.
    Although the trustees’ counsel has held his cards close to the vest, Mr. Tohill is expected to argue, among other things, that the public’s right to use the beach freely was given to fishermen, in particular, by the colonial patent that established the town trustees in 1686. Public access was not meant to die with the Benson sale. In fact, it has been assumed and exercised for the 129 years since the transaction.
    The trustees have said that the public’s right of access was sacrosanct. They see little room for an out-of-court compromise as a result. However, the possibility that the town board could secure the public’s interest by condemning the beach has been discussed behind the scenes.
    On Monday, Supervisor Bill Wilkinson said condemnation would be prohibitively expensive, a position reportedly echoed by Councilwoman Teresa Quigley. As of yesterday, the matter had not been discussed in an open session of the town board. Councilwoman Julia Prince said, “I’m doing my homework. The actual condemnation may not be expensive, but what would it cost to go through the condemnation process?”
    Michael Rikon of the New York City firm of Goldstein, Rikon, and Rikon, is special counsel to the town in condemnation matters. “I’ve been consulted on it. The town can absolutely condemn. In my opinion, it would not be prohibitively expensive. But I don’t think it will be necessary to condemn.”
    “There is the public trust doctrine. The trustees hold the beach, especially the beach, under the doctrine, which means they could not convey the [public land] even if they had intended to” back in 1882, Mr. Rikon said.
    Mr. Rikon, who lives in Amagansett, added that given their power of eminent domain, “towns do not trespass. They de facto take property.” The right to challenge or be compensated for the taking (if, in fact, the beach were privately owned) expired many years ago, Mr. Rikon said.