East Hampton Eyes Options After Losing Truck Beach Appeal
By Timothy Bolger September 17, 2021
New York State’s highest court buried the Town of East Hampton’s bid to overturn a ruling that Truck Beach in Amagansett is private property, but the fight appears to be far from over.
The state Court of Appeals denied on September 15 the town’s motion to hear an appeal of a lawsuit the town lost when an earlier appeals ruling that found the public is not be allowed to drive on and fish from the beach in front of a group of oceanfront property owners’ homes.
“It puts it to bed,” said Stephen Angel, an attorney with the Riverhead-based law firm of Esseks, Hefter, Angel, Di Talia & Pasca LLP, who represents the plaintiffs. “There’s no further place to go.”
The town, however, has said that it plans to explore condemning the 4,000 foot stretch of beach west of Hither Hills State Park under eminent domain, the legal process in which the government can seize land for public use.
“The ability for all members of the public to access and use our beaches is a fundamental right for East Hampton’s residents, one that must be protected and maintained,” said East Hampton Town Supervisor Peter Van Scoyoc. “I will continue to work with the board and with our attorneys to safeguard this tradition, and to fight against the precedent of privatization of any part of our shore.”
After four homeowners associations filed a lawsuit claiming that Truck Beach was private in 2009, based on an 1882 land sale by the Town Trustees to Arthur Benson, and that ownership was included in subsequent property deeds, the state Supreme Court rejected the argument in 2016. But the Appellate Division, Second Judicial Department reversed that ruling in February, barring off-roaders from driving on the shore. And in refusing to hear the case, the state Court of Appeals in effect agreed with that ruling.
Kevin McAllister, the founding president of the Sag Harbor-based environmental advocacy group Defend H2O, is concerned about the precedent that the ruling sets.
“The privatization of the public’s beaches is upon us and becoming more intense with a rising sea,” he said. “Land grabs of public right-of-ways, fences, signs and insidious beach armoring: the incremental loss of the public trust. East Hampton is not laying down on this incursion … may others follow suit with defending. Our coastal lifestyle as we know it hangs in the balance.”
If the town follows through on its threat to condemn the land, the value of ¾ of a mile worth of oceanfront beach in Napeague “could be astronomical,” Angel warns, estimating it could be valued at up to a half-billion dollars. He also cautioned that if the homeowners object to the appraised value of the beach, they could take the town to court and have a judge decide — and there would be no giving it back if the town didn’t like the judge’s number.
“It’s a real throw of the dice,” Angel said.
If the town succeeded, it would have to pay for the oceanfront property out of its own coffers, as the Community Preservation Fund, an open space acquisition program fed by a 2% real estate transfer tax, cannot be used for condemnations.
“The CPF law expressly prohibits its use for condemnation of land,” state Assemblyman Fred Thiele (I-Sag Harbor), who oversees the program, has told Dan’s Papers. “Another source of funds would be needed.”
Meanwhile the fishermen who’ve been plying the contested waters intend on fighting for their tradition that dates back three centuries to Colonial times. Critics drove 40 trucks on the beach in June to protest the ruling and an ensuing injunction that barred them from doing so, and are now prepared to go to jail over the issue.
“We’re not going away and if we have to go down there every single weekend to make that point we’ll do that,” said Dan Rodgers, a Southampton-based attorney who represents a group of commercial fishermen that are effected by the decision. “And if the homeowners have the courage to stand up and file a trespassing complaint…we’ll go off in handcuffs, my clients will go off to jail and we’ll fight this out in court. They’re willing to do that.”
Rodgers argued that the 1882 deed transfer carved out an easement — a legal right of way — that allows the public to continue fishing from the oceanfront. The sticking point appears to be driving on the beach. But Rodgers notes that in 1882, the fishermen were allowed to use wheeled carts to haul off their harvest from the surf. Cars hadn’t been invented yet, but modern-day commercial fishermen who works the shores use pickup trucks to launch dories into the surf.
“The homeowners are arguing, ‘But you cant go down there with mot0rized vehicles,” Rodgers said.
“My clients, the baymen, the only way that they can fish is with trucks … They have these pickup trucks and they have dories that they carry on trailers and they launch them into the surf. It’s pretty dramatic to watch … and then they row or they use an engine and they go out into the surf with a big net, circle it around and then pull it back in again. The whole idea that people can go down there and fish with a pole and a bucket but they can’t go down there with trucks and trailers is nonsense. If my clients are prohibited from going down there with trucks to fish, they wont be able to fish … it’s the only way they can fish.”
He refers back to the wheeled carts used in 1882.
“Imagine a whale landing on the beach,” Rodgers said. “Do you really think they carved that whale up and hand carried it home? They used wheeled carts. The reason that they didn’t say motorized vehicles is because they couldn’t contemplate it at that time because they didn’t exist.”
Of course, not everyone who drives on the beach is a commercial fisherman. Many of those who held town permits to drive on the shore were families out for a day of fun in the sun, not to make a living. The commercial fishermen are collateral damage in the fight over this stretch of oceanfront.
Angel maintains that the fishermen have no right to drive on the beach. But Rodgers dared the homeowners to file a trespassing complaint against the fishermen who drive on the beach anyway in what the attorney said could be the next court battle in the decades-long saga.
“They’re absolutely not going away under any circumstances,” Rodgers continued. “They’re going to continue to do what they have done for hundreds of years.”
” They're absolutely not going away under any circumstances. They’re going to continue to do what they have done for hundreds of years.”