A victory handed to a group of Napeague homeowners associations in the State Courts Appellate Division will almost surely have ripple effects elsewhere in East Hampton Town. In a Feb. 3 decision, the Appellate judges agreed with the homeowners that their member property owners owned the beach up to the high tide line. This should have come as little surprise, as many, if not the preponderance of waterfront lots’ metes and bounds include the upper portion of the beach.
In response, the East Hampton Town Board is expected to move forward with the public-domain condemnation of the ribbonlike section of the beach, at a cost to be determined in court. At the same time, the town and town trustees say they are likely to appeal. An appeal is of exceedingly great importance, since, if similar lawsuits are brought by other property owners, other sections of town and village beaches across which free passage was always assured could be, in effect, walled off by distant judges. If that happened, it is uncertain if the town could condemn them all.
There is an argument to be made that the appellate division may have overlooked a key point in the town trustee’s 19th-century records surrounding the original sale of the beachfront land to a Brooklyn investor — Arthur Benson, the founder of the Brooklyn Gas Company and developer of Bensonhurst. Though the Appellate Division judges cited language in an 1892 deed, that may be only a selective reading of the real story. The rights of the town’s inhabitants to fish, move around by cart, spread nets, leave their boats, and — most importantly — “use said shores as they always have done and is so practiced upon the shore” are clear from the trustees’ papers. It is from this last clause that the trustees have traditionally sought to uphold the more contemporary uses to which the beach is put, including by people in four-wheel-drive vehicles, as the modern interpretation of what was “practiced on the shore.” Twice in 1881 the trustees talked about the sale of the same land in question today in these terms, that the beaches would remain open to residents as they had been before, including, for bathing or simply enjoying the sand and scenery, which by then was already a summertime rage. But by the Appellate Court’s decision, even hunting for seashells would not be allowed.
Much having to do with Benson is not to be trusted here. After he purchased nearly all of Montauk in 1879, promising the remaining indigenous Montaukett people the perpetual right to return to their homes, plant crops, and pasture livestock, he quickly reneged, destroying or having their houses burned. And, shockingly, the town allowed Benson to take all the original records having to do with Montauk into his possession for supposed safekeeping. The documents were kept close by Mr. Benson and used by his lawyers to plan legal strategy. This gave him unique leverage in court, and the inheritors of his holdings ultimately defeated the Montauketts in court in 1910 in an outrageous decision that has yet to be put right. Benson’s granddaughters eventually deposited the irreplaceable papers in what would become the Brooklyn Historical Society, which did not begin to make them available to East Hampton until 2013.
Benson may have had his way with the town trustees of the 1870s and 1880s, but that does not mean that the centuries-old right of the free use of the beach ended when he took title to the land. Modern courts may not be able to consider the backstory, nor appreciate the sense of identity the shoreline provides East Hampton’s people, but town officials do get it, and they are following historical precedent in seeking to preserve that right.
We also note that the four-wheeler gatherings at this scale are something new. Looking back several decades, there was beach driving, plenty of time with people seeking solitude to swim or sunbathe, but there were never aggregations of a hundred vehicles or more anywhere in East Hampton Town. The so-called Truck Beach may be a tradition, but it is a new one.
All of this said, there is a problem on Truck Beach. There are far too many vehicles there on a handful of summer weekends every year, and one does not have to live nearby to sympathize with the property owners. The truck drivers and passengers might enjoy being there with their vehicles, but there are many as well who would not. If East Hampton Town is going to buy the beach through condemnation, it must also figure out a safe and sane way to keep it from getting out of control. At a minimum, lifeguards would be essential, as a public gathering place where members of the public could drown is unacceptable risk for a local government to assume. Also, it seems that the time has come to phase out nonresident beach driving permits. This is an instance where “locals only” might truly be in the best interest of all involved.