As boulders were transported to the beach in front of 11 West End Road in East Hampton on Monday, an attorney for the East Hampton Town Trustees continued an urgent legal effort to stop construction of a rock revetment.
Mollie Zweig’s application to remove a rock groin, build a rock revetment, restore an eroded dune with 4,000 cubic yards of sand, plant beach grass, and install sand fencing was granted by the East Hampton Village Zoning Board of Appeals on Oct. 11.
The Z.B.A.’s decision was controversial, with impassioned opposition from the trustees, whose clerk, Diane McNally, asserted that the land in question was under trustee jurisdiction. She implored the board to consider alternatives.
At the same Sept. 27 hearing, Ms. Zweig’s attorney, Stephen Angel of Esseks, Hefter and Angel, angrily cited a United States Supreme Court decision in support of his client’s cause.
Construction commenced on Monday, Veterans Day, when courts were closed. David Eagan of Eagan and Matthews, representing the trustees, traveled to State Supreme Court in Riverhead on Tuesday, where he spent 90 minutes in a judge’s chamber seeking a temporary restraining order to halt the project. Yesterday morning, he said, he was due back in court for the same purpose, even as work continued in front of the Zweig property.
Last Thursday, Mr. Eagan filed a request for judicial intervention on behalf of the trustees against Ms. Zweig, East Hampton Village, the village Z.B.A. and Department of Code Enforcement, the Town of East Hampton, and the town Z.B.A. The petition seeks to nullify the Oct. 11 decision via an Article 78 proceeding, which is used to challenge the activities of an administrative body.
The Z.B.A.’s Oct. 11 decision, the trustees assert, was “arbitrary, capricious, an abuse of discretion and contrary to law.”
The action follows letters sent to the village’s Department of Code Enforcement. The first, dated Oct. 25, demanded that a building permit not be issued.
“Our request is being made in an effort to avoid embroiling the Village of East Hampton in litigation that the Trustees have authorized this office to commence against Ms. Zweig,” the letter read, “based primarily upon her continued failure to recognize the Trustees’ jurisdiction with respect to the proposed revetment project, and to make a proper application to the trustees for their approval thereof.”
Informed that code enforcement had already issued a building permit prior to the Oct. 25 letter, Mr. Eagan again contacted the department, on Oct. 29, requesting that the permit be rescinded “until such time as the issues raised in our October 25, 2013 letter can be satisfactorily addressed.”
The trustees maintain that most if not all of the proposed revetment is situated on trustee-owned land. The existing stone groin to be removed, part of the project, is seaward of Ms. Zweig’s property line, the request for intervention states, and therefore under trustee jurisdiction.
The trustees further assert that the Z.B.A.’s very jurisdiction over the land in question is fraught with “substantial uncertainty.”
“Like the southern boundary of the premises,” the request for intervention reads, “the southern boundary line between the [village] and the [town] in the vicinity of the Premises is an ambulatory line defined by the location of the southerly line of beach grass along the Atlantic Ocean.” Most of the proposed project “will be located south of that ‘line of beach grass,’ and is therefore outside of the jurisdiction of both the village and the village Z.B.A. (and within the town’s and trustees’ concurrent jurisdiction). . . .” Based on these assertions, Ms. Zweig must obtain a permit from the trustees in order for her project to proceed, the petition argues.
Frank Newbold, chairman of the village Z.B.A., would not comment on the case yesterday, citing the litigation in progress.
In an interview on Monday, Mr. Eagan disputed all of Mr. Angel’s assertions, calling them both illogical and disingenuous. “Zweig is completely incorrect when her lawyer takes a position on two points,” Mr. Eagan said. “One, that Zweig owns metes and bounds [a legal description of land measurements] out into the beach area. That’s false: if you look at the chain of title, from the time that property was first conveyed to a private owner in 1902, the southern boundary concept was ‘edge of the beach grass line.’ It stayed that way through four or five conveyances, when someone put metes and bounds in, and that stayed through the current deed.”
Mr. Angel’s claim, made at the Sept. 27 hearing, that a consequence of Hurricane Sandy was “avulsion,” which does not change title to a property, does not withstand scrutiny, Mr. Eagan said. Mr. Angel had said that “the only property you lose along the shoreline is property that’s eroded.”
“No court has ever found the doctrine of avulsion applied to a single residential lot on the south shore of Long Island,” Mr. Eagan said. Avulsion, he said, “is a major cataclysmic change in water course, and it usually results in rivers changing courses and big streams where land that once was not covered with water becomes so.” At issue, he said, is whether property owners lose title to land when it floods. Avulsion, he said, holds that they do not, but “what’s happening here is erosion. Under the doctrine of erosion, it’s simple: if you lose it, you lose it; if you gain it, you win it.”
Six lots to the west on West End Road is the house of Lloyd and Barbara Macklowe, who recently prevailed over the trustees in State Supreme Court. On Oct. 23, the appellate division upheld a March 2012 decision that the Macklowes’ property line extended to the beach grass line, which was determined to be movable.
The Macklowes, too, were represented by Esseks, Hefter and Angel. Anthony Pasca, an attorney with that firm, wrote of the decision that “New York has long recognized that the boundary is ambulatory and can change based on gradual long-term erosion or accretion, though it would not change based on avulsion, which is the sudden loss of land from storm events.”
The “erosion doctrine,” Mr. Eagan said on Monday, “is what was found to be controlling in [the Macklowe decision]. . . . It seems illogical for someone to claim the doctrine of erosion controls one lot, but conveniently doesn’t six lots to the east because the legal conclusions don’t support them. I don’t know how you can claim one natural process on one lot on West End, and six lots down claim a completely different one. We think it’s a bogus theory and the courts will reject it.”
Mr. Angel did not return a call requesting comment.
On Tuesday night, the trustees’ attorney in the Macklowe matter, Anthony B. Tohill, addressed them in an executive session during their regular meeting. In another executive session at the same meeting, John Courtney, the trustees’ attorney, spoke with them about Mr. Eagan’s efforts to halt Ms. Zweig’s construction project.
Awaiting word from Mr. Eagan yesterday, Ms. McNally repeated her assertion that Ms. Zweig’s house was not in imminent danger and called the action of the contractor, First Coastal Corporation, reprehensible. “To have them start on Monday, a holiday, is the worst of human nature,” she said. “All these entities keep saying that their opinion — that we don’t have jurisdiction — counts more than ours. It puts the trustees in a bad position, and it’s really a shame.”