In a contempt hearing last week, lawyers for Napeague oceanfront property owners who have been battling the town for years over an area popularly known as Truck Beach grilled East Hampton Town Supervisor Peter Van Scoyoc and other town officials about their handling of a June 2021 court order demanding the town prohibit all driving and parking on that beach.
The property owners had long asserted that the deeds to their lands extend to the mean high-water line of the beach, and they prevailed in court last February. That decision, later reaffirmed, ended a 12-year challenge to the rights of town residents to drive and park vehicles on a 4,000-foot stretch of beach.
A year ago today, the New York State Supreme Court Appellate Division ruled that town residents have no inherent access rights there. The ruling overturned a 2016 State Supreme Court decision that an 1882 deed in which the trustees conveyed some 1,000 acres on Napeague to Arthur Benson clearly reserved some rights to the inhabitants of East Hampton and, arguably, allowances for some public use.
In the wake of the Feb. 3, 2021, decision, signs were posted at the beach warning that vehicular access was for fishing and fishing-related purposes only, per the 1882 deed. But on June 4, the court sided with the property owners and granted a temporary restraining order demanding that the town “prohibit and prevent any and all driving and/or parking on the beaches owned by the Plaintiff Homeowners Associations” or face being held in contempt of court.
The injunction threatened the town board, the trustees, East Hampton Town Police Chief Michael Sarlo, and Ed Michels, the chief harbormaster, with civil contempt should they violate the Feb. 3 decision. A contempt hearing began on Jan. 26.
Baymen, who have fished on the ocean beach for generations, and their supporters staged protests on June 27 and Oct. 17, driving a convoy of vehicles across the beach from the access point at the end of Napeague Lane and back. Prior to the first protest, the vehicle access to the beach at the end of Marine Boulevard was blocked by a police car, and town officials had driven stakes into the sand, perpendicular to the shoreline and extending to the high-water mark, at the Napeague Lane road end.
At the latter protest, Marine Patrol officers issued citations for trespassing to 14 participants, following a discussion between Dan Rodgers, an attorney representing some of the fishermen, and Ed Michels, the town’s chief harbormaster.
But the town, the plaintiffs’ attorneys contend, neglected to abide by the injunctive relief ordered by the court by not preventing trespassing and by continuing to issue beach driving permits without stipulating that they do not confer the right to drive on the Napeague property at issue.
James Catterson, representing the Ocean Estates Property Owners Association, was dogged in his cross-examina tion of Mr. Van Scoyoc on Jan. 26 and last Thursday. Christopher McDonald, an outside counsel for the town, repeatedly objected to Mr. Catterson’s questioning, but more often than not his objections were overruled.
Mr. Catterson had the supervisor read passages from court decisions affirming the plaintiffs’ ownership of the beach to the mean high-water line, including the Feb. 3, 2021, appellate division decision. The reservation in the 1882 Benson deed “cannot be construed as broadly as the town and trustees contend,” Mr. Van Scoyoc read. Rather, the panel of judges wrote, it is akin to “an easement allowing the public to use the homeowners associations’ portion of the beach only for fishing and fishing-related purposes” and “does not confer upon the town and trustees lawful governmental or regulatory power to issue permits allowing members of the public to operate and park vehicles on any portion of the beach owned by the homeowners associations.”
Following that decision, was there no question in his mind that “you knew the town had lost?” Mr. Catterson asked.
“I wasn’t so sure,” Mr. Van Scoyoc answered.
Mr. Catterson asked what steps Mr. Van Scoyoc had taken to comply with the Feb. 3 decision. Masked and at times barely audible, the supervisor was sometimes vague. “I don’t recall the order of steps, but I believe we posted signage,” he said. Had he told the trustees, who have jurisdiction over many beaches on behalf of the public, that they should not tell people they can access that beach “because they sold it in 1882”? Did he move to revise the town code with respect to beaches? No, was the answer.
Had he done anything, between February and April, when a modified judgment ordered the defendants to prohibit and prevent any driving or parking on beaches owned by the homeowners associations, to close vehicular access to the beach? “I believe we put up signs,” the supervisor said. Had he instructed law enforcement to prevent vehicles from driving on the beach? “I don’t recall,” he said. Between April and June, had he cut off vehicle access to the beach? “I don’t recall” was the answer.
After the June 4 order to show cause and temporary restraining order, the town barricaded the road entrance at Marine Boulevard and erected string fencing on the beach at the Napeague Lane road end and new signs indicating that the beach was privately owned. Mr. Van Scoyoc admitted, under questioning, that the initial signs did not comport with the temporary restraining order.
Though he said that he did not recall the date, Mr. Van Scoyoc did say that “at some point we decided we would issue a notice to people, when they got permits, that this section was off limits.” But the town did not notify those who were previously issued permits, he said, despite the permittees having listed their address on permit applications.
Mr. Catterson asked the supervisor if he had told Mr. Michels “to keep the protesters off the beach.” Mr. Van Scoyoc answered that he probably would have said to make sure the T.R.O. is enforced.
“Is your testimony that even though you’re chief executive it’s Chief Michels’s problem?” Mr. Catterson asked.
It is his responsibility, Mr. Van Scoyoc said. “My responsibility is to delegate to other members of the town.”
“Isn’t it a fact that Marine Patrol let the trucks drive right on the beach?” Mr. Catterson asked of the protests. When Mr. McDonald’s objection was overruled, Mr. Van Scoyoc said that it had. “You seemed reluctant to answer that,” Mr. Catterson said. Marine Patrol did not prevent them from accessing the beach, Mr. Van Scoyoc said. The trucks were on the beach, and their drivers were cited.
“You said they couldn’t prevent them,” Mr. Catterson said. “Why?” People break the law all the time, Mr. Van Scoyoc answered. To prevent something in all cases is very difficult. “Those people forced us,” he said.
“They forced you,” Mr. Catterson said, in a by-then familiar sarcastic tone.
When it was Mr. McDonald’s turn to question Mr. Van Scoyoc, he asked whether anything in the Appellate Division’s Feb. 3, 2021, decision “tells the town to keep people off the beach.”
“Not that I’m aware of,” was Mr. Van Scoyoc’s answer. Nor did it instruct the town to close any beach access points, Mr. McDonald added. Was it his understanding that the judgment reserved the right of the public for fishing and fishing-related purposes? Mr. McDonald asked. When Mr. Catterson’s objection was overruled, Mr. Van Scoyoc said that it was.
Mr. McDonald instructed Mr. Van Scoyoc to read the text of a sign depicted in a photograph moved into evidence. “Per court order, no vehicles beyond this point until further notice,” he read. The sign had been posted, in his recollection, on June 11, one week after the temporary restraining order and more than two weeks before the first protest. He also read the notice that was ultimately issued with beach driving permits noting that the permits do not confer the right to drive or park on the beach the appellate division had determined is the plaintiffs’ property. Mr. McDonald also drew his attention to a press release issued by the town to alert the public as to the judgment against the town.
“So,” Mr. Catterson said upon resuming his questioning, “you didn’t issue these notices telling people they couldn’t drive on the beach until after you were enjoined?” Yes, Mr. Van Scoyoc answered. Was there a reason he did not issue these notices “after you lost the case in February?” “I don’t recall,” Mr. Van Scoyoc replied.
“Why didn’t you tell anyone to put these signs in after you lost?” Mr. Catterson asked. “There were questions about whether or not vehicles were actually prohibited because of the Benson reservation,” Mr. Van Scoyoc said.
Finally, Mr. McDonald asked Mr. Van Scoyoc if it was his understanding that the scope of the temporary restraining order is broader than the scope of the injunction and exceeds the appellate division’s ruling. Yes, was his answer.
Councilman David Lys and Carole Brennan, the town clerk, also took the stand last Thursday. The hearing is to continue next Thursday.
