The East Hampton Town Trustees are trying to stop the building of a sand-covered rock revetment in front of a private residence on Georgica Beach, claiming that the property in question belongs to them.
The law firm Eagan & Matthews filed a State Supreme Court petition last Thursday, November 7, on the Trustees’ behalf. The petition charges that a recent East Hampton Village Zoning Board of Appeals approval for Mollie Zweig’s requested revetment, which will replace an old rock groin, was “arbitrary, capricious, an abuse of discretion and contrary to law.”
The Trustees argue that most, if not all, of the proposed project would actually be on property south of the beach grass line—and hence owned by them, not by Ms. Zweig, as well as outside the village’s jurisdiction. By extension, they argue, the decision should be tossed and Ms. Zweig should apply for Trustee approval.
Ms. Zweig received ZBA approval on October 11 to remove the groin and build a new rock revetment on the ocean side of her West End Road property. The ZBA also gave her the go-ahead to restore an eroded dune with 4,000 cubic yards of sand, plant beach grass on the restored dune, and install sand fencing withing 15 feet of the seaward toe of the restored dune. The Trustees are now seeking to have that decision annulled in court.
“We think the court will come down on our side,” said David Eagan, an attorney representing the Trustees. “The chain of title clearly shows that the southern boundary was the beach grass line from the original conveyance from the Trustees to the first private owner in 1902.”
When the beach grass line, which is ambulatory, moves, so does the title line and so does the village’s boundary, he explained. According to the doctrine of erosion, when property owners lose land to erosion, they lose title to it.
He pointed a finger at the legal firm representing Ms. Zweig, Esseks, Hefter and Angel, for being what he called “disingenuous.” The same firm represented another family, the Macklowes, who live about six lots to the west. An October 23 decision by an appellate division of the State Supreme Court upheld the Macklowes’ claim to property also claimed by the Trustees. In that case, Mr. Eagan said, the attorneys claimed the beach grass line moved southward, which benefited the Macklowes. But in the Zweig case, he said, the same firm asked the ZBA to consider the doctrine of avulsion, the flip side of the coin, which states that if land becomes submerged in some cataclysmic change course, then the property owner does not lose the land.
If work is started on building the revetment in the meantime, Mr. Eagan said, he would seek a temporary restraining order.
Stephen Angel of Esseks, Hefter and Angel, who represents Ms. Zweig, but did not represent the Macklowes, said on Tuesday morning that he had not yet received a copy of the Trustees’ documents, nor had his client been served.
“My only comment is that if they’re attacking the Zoning Board of Appeals’ determination, based on the two letters they submitted, I just don’t see any grounds for it.”
The Trustees sent two letters last month to the Village Code Enforcement Department in an attempt, its attorneys said, to avoid the filing. One letter, dated October 25, urged the village not to issue a building permit for the rock revetment project because of “substantial uncertainty” about the extent of the ZBA’s jurisdiction over the project. A follow-up letter, dated October 29, thanks the Code Enforcement Department for letting the Trustees know it had already issued a permit prior to receipt of the first letter, but reiterates its challenge as to whether the permit should have been issued.
The court filing is for a declaratory judgment as well as for a judgment pursuant to Article 78 of the Civil Practice Laws and Rules. The petition not only claims that most of the project—or, at the least, the rock groin to be removed—falls within the Trustees’ jurisdiction, but it also states that “those facts, when coupled with the legal principle that the Trustees’ jurisdiction extends not only to the beach that they own and govern, but to any actions that may significantly impact their property, further establishes the Trustees’ jurisdiction” over the project.
Ms. Zweig, the village, and its ZBA and Code Enforcement Department are listed as defendants, while East Hampton Town and its ZBA are listed as additional defendants.