After Tropical Storm Irene finished chewing up the South Shore, Molly Zweig, the owner of property that backs onto Georgica Beach, began installing an array of steel pipes to mark the southernmost boundaries of her land as they appear on her deed. Before the storm, an area of about 3,000 square feet contained a dune. After Irene, a flat stretch of beach was all that remained.
Surfers and others who frequent the beach at Georgica were outraged by the apparent attempt to usurp a portion of public beach. Protest signs were placed, the fence was vandalized, and a civil-disobedience protest was talked about.
Since then, the shifting sands of time and place have put what seemed an attempt to claim public beach in a more faceted light.
On Friday, Ms. Zweig and her contractor, Bob Sullivan, were given stop-work orders from the State Department of Environmental Conservation and from East Hampton Village. Both agencies issued summonses charging construction on a beach without a permit.
In addition, Larry Cantwell, East Hampton Village Administrator, said Tuesday that Ms. Zweig had been told that she must apply for permits from three sources, the village, the East Hampton Town Trustees, and the state Department of Environmental Conservation, before she can restore her lost dune.
However, what first appeared to be yet another case of a private interest claiming public beach (there are already two lawsuits claiming proprietary interest in beaches long believed to be public, one on Napeague and the other in East Hampton Village) has a few twists and surprises, including a stone revetment that was constructed over 30 years ago on the section of beach in question and revealed by Irene’s eroding waves.
Mr. Cantwell said he had formed no opinion as to whether the existence of the exposed revetment would influence the private-public debate. The rocks have been covered over with sand in the days since the storm. The revetment was approved by both the village and the D.E.C. in 1977.
On Monday, Tom Lawrence, the village code enforcement officer, met with the homeowner and her lawyer, Stephen Angel of the Riverhead firm of Esseks, Hefter, and Angel, which also represents beachfront property owners in a suit filed against the town to prevent vehicular access to a section of Napeague Beach. That case is now before the State Supreme Court.
“This one is an interesting case,” Mr. Lawrence said of the Georgica dustup. “My first call was to John Courtney,” the attorney for the East Hampton Town Trustees. “We have maintained a positive relationship with the trustees. Those dunes are between the ocean and the big pond,” Mr. Lawrence said, referring to Georgica Pond.
According to Mr. Lawrence, Mr. Courtney noted that case law differentiated between “evulsion” — loss of land due to a “castastrophic,” one-time event — and long-term erosion. While long-term erosion may result in a transformation from private to public property — in this case, private dune to public beach — private property rights could prevail after a catastrophic event, Mr. Courtney said.
During the trustees’ regular September meeting on Tuesday night, Diane McNally, the nine-member board’s presiding officer, said that given the circumstances it was not clear if the trustees had jurisdiction over the area that Ms. Zweig had fenced off even though it had reverted to beach. Mr. Courtney declined to shed more light on the trustees’ position, saying it was a matter for an executive session of the board.
Nonetheless, Ms. McNally said she believed she spoke for the board in thanking Tim Taylor of Citizens for Access Rights for the group’s efforts to help defend the public’s right to beach access, and for helping communicate the issue “to constituents who don’t know how to get to us.”
Mr. Taylor attended the meeting to ask trustees to review a proposed resolution he hoped would be adopted by the East Hampton Town Board in support of the trustees’ efforts to “vigorously defend legal challenges to the traditional right of the public to vehicular and non-vehicular access to, and use of, our beaches.”
Ms. McNally noted that the trustees had already spent $40,000 defending the public’s right to drive on Napeague Beach in that lawsuit, which was filed by a number of beachfront property owners.
The question of who owns geography that was once private land after it has eroded to form a beach is one that the trustees have visited in the past, usually coming down on the side of public ownership. This case may be different.
The question is not one the village will entertain, said Mr. Cantwell. “We don’t doubt where the property lines were,” he said. “The issue with us is that the village does not allow the building of structures on any kind of beach. It’s in our coastal protection laws. Ownership is not an issue. We’re not getting to the issue of when land is eroded or who owns it. The D.E.C. and the village are on the same page, nothing can be constructed without a permit in a regulated area.”