A challenge to a 2016 State Supreme Court decision involving the ownership of a stretch of Napeague oceanfront known as Truck Beach will be heard on Friday, Feb. 7, in the Appellate Division’s Second Judicial Department in Brooklyn.
The appeal, filed by a group of property owners whose houses are near the 4,000-foot-long strip of beach and a nearby 1,500-foot stretch in front of the White Sands Resort Motel, argues that the beach rightly belongs to them — not, as Justice Ralph Gazzillo had ruled, to the public.
The property owners, in parallel lawsuits brought in 2009, had contended that the deeds to their properties included the beach, citing an 1882 deed in which the East Hampton Town Trustees conveyed some 1,000 acres on Napeague to Arthur Benson. In a five-day bench trial in Riverhead in June 2016, they carried out a broad attack aimed at activities on the ocean beach between Napeague Lane and the western boundary of Napeague State Park and, to the east, in front of White Sands. The plaintiffs portrayed a dangerous environment with hundreds of vehicles weaving through crowds and children at play, and people and dogs urinating and defecating in the dunes. This, they contended, represented a threat to public health and degradation of the environment.
In his Nov. 4, 2016 decision, Justice Gazzillo stated that the 1882 deed “clearly reserved some rights ‘to the inhabitants of East Hampton’ and, arguably, the allowances for some public use.” Perhaps more important, he wrote, “is what has not been proven.” The plaintiffs had not persuaded him of their ownership of the beach, he stated, and the absence of that proof “severely undermines the support for the balance of their ‘nuisance’ claims.”
Officials of the town and the trustees — the defendants in the lawsuit — were jubilant, with then-Supervisor Larry Cantwell calling the decision “an enormous win for public access to our beaches.” But the specter of an appeal was looming even then. “We may not be at the end yet,” Bill Taylor, a deputy clerk of the town trustees and the town’s waterways management supervisor, said at the time.
His observation was accurate. Stephen Angel, an attorney for the plaintiffs, said after the verdict that he would recommend an appeal. On Tuesday, he confirmed that he would argue on his clients’ behalf in the appeal along with James Catterson, who represented a plaintiff in the 2016 trial. “We’re looking forward to it,” Mr. Angel said. “We think we have good arguments. We’ve waited a long time to present our legal arguments, and are looking forward to seeing what the appeals court says.”
“We are looking forward to finally having our case heard by the appellate court,” Cindi Crain of the Ocean Estates Property Owners Association, a plaintiff, said in an email on Tuesday. Ms. Crain founded Safe Access for Everyone, a homeowners’ group that opposes beach driving.
Michael Rikon, who represented the town in the 2016 trial, allowed on Tuesday that “you never know what an appeals court will do,” but pointed to “such key problems confronting the plaintiffs.” Among them, he said, “they brought action to enjoin the public from using the beach, and in fact they never owned the beach. They’ll fail on that basis alone.”
Residents of East Hampton have been using the beach in question for generations, he noted, a fact that was established in the 2016 trial with testimony from residents including then-Councilman Fred Overton, Ed Michels, the town’s chief harbormaster, and Mr. Taylor.
Some who testified in 2016 recalled driving on the beach more than 50 years earlier, and all dismissed suggestions that conditions have ever been hazardous. Justice Gazzillo ruled that there was no proof or even reports of beach-related injuries or illnesses, nor was there any proof of significant violations of town code taking place on the beaches.
Mr. Rikon said that that finding presented additional grounds to deny the appeal. “ ‘It created a nuisance’ — they failed in that respect as well,” he said. “They put on some experts who really were not qualified. The court did not find them to be qualified.” Mr. Michels had testified that the beach was inspected regularly and regulations rigorously enforced, Mr. Rikon added, “and they had no record of any of the conduct that their experts testified as ever occurring. I don’t expect them to have a chance on reversing this decision. It was a well-reasoned decision, quite lengthy, and I think it will stand.”
Francis Bock, clerk of the trustees, said Tuesday that, having reviewed Justice Gazzillo’s decision, he too is confident that it will stand. The trustees had paused their meeting on Monday for an executive session to discuss the appeal.
Town officials had been planning eminent domain proceedings had Justice Gazzillo sided with the plaintiffs, resolving to condemn a total of just over 22 acres of shorefront between the mean high water mark and the toe of the sand dunes, comprising two separate parcels. Mr. Cantwell commented at the time that that would have been a very costly process.
Justice Gazzillo’s decision ended on a personal note, and a prophetic one. At the time, he was concluding a nearly five-decade career in public service, he wrote, and anticipated that the Truck Beach litigation would continue. “These cases have assumed a life of their own and have the potential to outlive some of the participants. Sadly, even after this opinion is issued, after the years of litigation . . . nothing has resolved these controversies.” He expressed hope that the parties would resolve their differences, avoiding further litigation. “Life is too short,” he wrote.
The appellate court “is so overwhelmed with appeals,” Mr. Rikon said, noting the more than three-year gap between Justice Gazzillo’s decision and next week’s appeal, which he said will be one of 20 to be heard that day. “It will take at least six weeks, being optimistic, for a decision,” he said.
