Trustees Lose in Suit Over Georgica Beach Boundary

Earlier this month, the East Hampton Town Trustees lost a lawsuit over a piece of Georgica Beach in the village that considered a unique boundary in determining public versus private beach access: grass. 

According to a New York State Supreme Court decision dated March 2, Justice Thomas Whelan ruled in favor of Lloyd and Barbara Macklowe, who own property on West End Road, and asked the court to uphold a chain of title dating to St. Patrick's Day 1900 that defined their property boundary as the beach grass that has moved over the past 112 years. 

The trustees defended their ownership of that portion between the Macklowe's upland property and the beach.

The judge ruled that the Macklowe's southerly boundary line must be the "average southerly line of beach grass on the beach of the Atlantic Ocean." The ruling, "Preserves the original intention of the trustees to permit the use of such lands for residential purposes and to forever afford the inhabitants of the town a beach free from claims by adjoining land owners."

A civil bench trial, held over three days in Riverhead in late 2011, led to the decision.

Anthony Tohill represented the trustees but did not return a call seeking comment. Diane McNally, the trustee clerk, was unavailable due to a death in the family.

But, William Maloney of the Riverhead firm Esseks, Hefter & Angel, who represented the Macklowes, said the justice "upheld the integrity of the trustee's resolution and its deeds."

The decision revolves around the head-turning question of dividing public and private ownership of beaches along the Atlantic Ocean with a boundary that is prone to movement over long periods of time, though slowly and to some, even unnoticeably.

The trustees, which have for centuries held claim to the beaches, used different ways to mark property lines. For example, the high water mark has been used. Other properties, including the one eventually bought by the Macklowes, had been marked up to the beach grass line.

The question became, according to attorney Anthony Pasca, who works with Maloney: What happens when the beach grass line moves, such as when the line moves inland due to erosion? Does the division between private and public ownership also move, or is the original location of the beach grass line a "fixed" boundary? 

In the Macklowe's case, the beach infront of the subject property actually accreted, moving the grass line seaward.

While Esseks, Hefter & Angel are representing other clients in Amagansett who lay claim to beach rights, Maloney said that was not the case with the Macklowes. "Beach access is not an issue in that regard. We did not argue, we abandoned, any claim to the high water line mark." 

John Courtney, an Amagansett attorney who represents the trustees, also did not return a call for comment last Tuesday.