Montauk Jetties Suit Moves Forward In Federal Court

Beachfront homeowners in the Culloden Shores area of Montauk, who sued the Town of East Hampton over beach erosion, received what they described as a favorable decision in their federal court battle regarding the Montauk jetties.

The main claims of nuisance and trespass the homeowers made in the suit were upheld, according to Terry Bienstock, a lawyer who led the suit and owns property on Soundview Drive. The town's motion to dismiss was denied, allowing the case to proceed in federal court. "This makes it clear that we're not going away," he said, adding that the town should begin to include the area in its sand replenishment projects that followed Superstorm Sandy.

The lawsuit alleges that the Montauk Harbor Jetties caused catastrophic erosion and damage to the public and private beaches, sand dunes and homes west of the jetties, and has left the plaintiffs homes vulnerable to destruction by future winter storms.

The court did, however, grant some of the town's motions, including one based on statute of limitations, as well as granting the state's motion to dismiss in a ruling on March 29.

"We sued the state because they are involved in the remedy, not necessarily because they did anything wrong," Bienstock explained. "We always knew claims against the state were challenging. We didn't think we could sue the town and Army Corps without suing the state."

"The court, although dismissing our claims [against the state], will let us amend the lawsuit to keep the state in by showing that they are part of their solution," Bienstock explained.

John Jilnicki, the East Hampton Town attorney, did not return a request for comment on Wednesday morning.

Culloden Shores is a neighborhood of about 400 homes with beach rights. More than 40 homes, as well as motels and cooperative apartments, are directly on the beach, and many of them have suffered storm damage as a result of about 300 feet of eroded beach and dunes.

Though private parties first constructed jetties in the area in the 1920s, they fell to disrepair quickly. Around 1939, the Army Corps of Engineers recommended to Congress, at the town's request, that the jetties be repaired.

"To effectuate the project, 'the Town obtained a conveyance title to and over the Jetties and the land under Lake Montauk Harbor' in 1941," according to the suit. The town granted the Army Corps a permanent easement over the land and the jetties. "As part of their agreement, the Town also 'assured the United States of America that [it] would: ‘Hold and save the United States free from claims for damages that may occur from the construction and maintenance’ of the improvements authorized by the Rivers and Harbors Act.”

The plaintiffs believe the jetties have interrupted the natural east-to-west littoral movement of sand along the beaches and prevent the natural replenishment of sand onto their properties to the west, causing them to experience "persistent and substantial scouring and shoreline recession." Meanwhile, property to the east of the jetties, including town and county-owned beaches, have benefitted from the build-up of sand, they claim.

In January 2011, following a severe Christmas storm when one home on Captain Kidd's Path nearly collapsed into the ocean due to severe erosion, , but said they would file separate notices of claims against the the federal agency.

Emergency permits that East Hampton Town Supervisor Bill Wilkinson and other town officials helped secure enabled the homeowner to shore up the house after it lost part of its foundation in the storm when the sand behind the bulkhead was eroded away.

Then in February 2012, the State Court Judge Arthur Pitts granted the town's motion to dismiss the suit because the plaintiffs failed to name the Army Corps. Pitts ruled, however, that the complaint stated valid claims for both a public as well as a private nuisance as a result of the erosion caused by the jetties.

Bienstock and 10 other homeowners filed an amended complaint in June 2012, against the town, county, state, and the Army Corps.

"It is clear from the length and thoroughness of her opinion that Judge [Joanna] Seybert gave both parties’ positions very serious and thoughtful consideration," Bienstock said. "We are pleased that Judge Seybert, like State Supreme Court Justice Pitts before her, sustained the legal sufficiency and timeliness of the plaintiffs’ principal state law claims against the Town."

"Now that the initial motion is behind us, we welcome the participation and support of other property owners’ whose property interest have been severely eroded and jeopardized by the Town’s continuing inaction and failure to address the erosion problem created by the jetties," he said.