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Judge Orders More Than 6,000 Beach-Driving Permits Revoked

Fri, 07/01/2022 - 12:12
A beach-driving permit on a commercial fisherman's truck, one of many involved in protests at the beach last year
Christopher Walsh

A New York State Supreme Court justice has ordered that more than 6,000 East Hampton beach-driving permits be revoked. The decision came in a legal battle over a section of ocean shoreline on Napeague known as Truck Beach. 

In a ruling last Thursday, Justice Paul J. Baisley Jr. held East Hampton Town and the town trustees in contempt and levied a nearly $240,000 fine for violating a 2021 court decision that the 4,000-foot stretch of Napeague shoreline was privately owned. 

The justice said all town beach-driving permits issued since February 2021 must be revoked. The effect of that decision was not immediately clear.

Justice Baisley fined the town and trustees "in the maximum amount allowed in criminal contempt" -- $1,000 per day -- from Feb. 3 to Sept. 30, 2021, a total of $239,000, payable to five homeowners' associations and four individuals. He also ordered the town and trustees to pay the plaintiffs' costs and attorneys' fees associated with the contempt motion and a contempt hearing held in January and February that led to Thursday's ruling. 

The town and trustees "have clearly demonstrated an appallingly studied indifference and deliberate disobedience to the lawful and unequivocal orders of this court," Justice Baisley wrote. 

An attorney for the town filed an appeal on Friday, writing in part that "the court's factual findings with respect to contempt are overbroad, based on irrelevant information, and otherwise contrary to the record."

Justice Baisley ordered East Hampton Town Clerk Carole Brennan to revoke all beach driving permits issued by the town since Feb. 3, 2021 -- the date that the State Supreme Court Appellate Division determined that residents had no right to drive on that section of the beach at Napeague. The town must also inform all vehicle owners with permits from before Feb. 3, 2021, that driving on Truck Beach is prohibited, Justice Baisley said. He gave the town 45 days to comply. Beach driving permits are rectangular stickers that are supposed to be placed on a vehicle's rear bumper.

Reached on Friday, Ms. Brennan said that her office had handed out 6,066 beach driving permits since the February 2021 court ruling. Of that total, 191 went to nonresidents, who each paid $400 for the privilege. She cautioned that the total was inexact, since it included duplicate permits handed out when someone bought a new four-wheel-drive vehicle, for example, or needed to replace a damaged sticker.

"We tell everybody they can't go on that section of beach. Everybody gets a map, letter, gets it explained to them," Ms. Brennan said. The East Hampton Town attorney's office declined a request for comment.

Justice Baisley also denied a motion by the town and trustees asking him to overturn a 2021 restraining order requiring the town to prevent driving and/or parking on the disputed beach. 

A 2016 trial, seven years after the property owners' associations first asserted their claim to the beach in parallel lawsuits, was determined in favor of the town and trustees. The dispute hinged on an 1882 deed in which the trustees, who own and manage many of the town's beaches on behalf of the public, conveyed some 1,000 acres on Napeague to Arthur Benson. That decision was reversed by the Appellate Division in February 2021, which held in part that the reservation in the Benson Deed "is in the nature of an easement allowing the public to use the homeowners associations' portion of the beach only for fishing and fishing-related purposes." 

The decision, Justice Baisley wrote, "further held that, 'the reservation does not confer upon the town and trustees lawful governmental or regulatory power to issue permits allowing members of the public to operate and park vehicles on any portion of the beach owned by the homeowners' associations.' " 

In response, the town posted signs on the beach indicating that vehicle access to the beach was limited to fishing and fishing-related purposes. But a modified judgment in April 2021 enjoined the town from issuing permits "purporting to authorize their holders to operate and park vehicles" on the beach deemed to be owned by the homeowners' associations. It directed the town and trustees to revoke all beach driving permits issued for the 2021 season "that do not expressly prohibit driving or parking on the beach." 

Recapping the contempt hearing, Justice Baisley wrote that Town Supervisor Peter Van Scoyoc "doesn't recall if he did anything between February and April 2021 to comply with the Appellate Division's decision." He did not ask the town board to amend the code "to reflect the Second Department decision, thereby categorizing Truck Beach as a restricted beach." He also did not recall "if he instructed any 1aw enforcement in the town to deny cars access to the beach between February and April" nor "if he took any steps to comply with the judgment between April and June." 

An order to show cause seeking to hold the town in contempt was served on June 4, 2021, which included a temporary restraining order prohibiting and preventing driving and/or parking on the beaches determined to be owned by the plaintiffs. The town then barricaded a road entrance and put up string fencing and signs, although Mr. Van Scoyoc "admitted that the signs did not comport with the T.R.O.," Justice Baisley wrote. The supervisor testified that he spoke with Ms. Brennan, saying that the town would advise people when they were issued permits that Truck Beach was off limits. "He didn't recall if he contacted the town clerk to advise that the town shouldn't be issuing permits that allowed people to drive on Truck Beach," and he "did not have notices sent by the town clerk to permit holders advising that they could not drive on Truck Beach." He did not recall instructing code enforcement or Marine Patrol officials on how to comply with the T.R.O., Justice Baisley wrote. 

The town only acted in response to the T.R.O., Justice Baisley wrote, posting signs stating, "[p]er court order, no vehicles beyond this point until further notice" and distributing notices with new beach driving permits alerting the public that driving or parking on Truck Beach was no longer permitted. 

Commercial fishermen and their supporters held two protests at the beach last year, in June and October, when they drove across the beach in question before turning around and returning. One of them, Danny Lester, had advised Ed Michels of Marine Patrol "that the participants wanted to get a summons for driving down onto the beach" during the latter event, Justice Baisley wrote. Mr. Michels "testified that he didn't know how to prevent 15 trucks from trespassing, but admitted that it is the Police Department and the Marine Patrol's responsibility for enforcing the T.R.O." Fourteen summonses were issued in the latter protest.

It is not necessary that the disobedience be deliberate or willful to establish civil contempt, Justice Baisley wrote, citing case law. "Rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party." The same act may be punishable as both a civil and criminal contempt, depending on the level of willfulness associated with the conduct, he wrote. 

"Defendants contend that the court should deny plaintiffs' contempt motion because plaintiffs cannot prove that the town disobeyed an unequivocal mandate and/or that plaintiffs suffered prejudice," he wrote. "This contention is without merit. Upon the testimony adduced at the hearing and a review of the parties' extensive submissions, and the applicable law, the court finds that the defendants are guilty of civil and criminal contempt."

The town issued 2,031 permits between February and June 4, 2021, he wrote, "which allowed the holders to drive on Truck Beach. Moreover, the town has not informed any of the thousands of prior permit holders that driving on Truck Beach is prohibited." Signs erected on May 28, 2021, permitting vehicle access but limiting it to "fishing and fishing-related purposes" are "clearly inconsistent with the plain language in the Appellate Division decision." 

In addition to flouting the Appellate Division decision's directives, the modified judgment, and the restraining order, testimony at the hearing "demonstrates that the town failed to comply" with subpoenas requiring it to produce text messages and emails "from personal or government-owned devices, and documents concerning the T.R.O. and driving on Truck Beach," he wrote. Yet Mr. Van Scoyoc testified that he didn't recall turning over text messages to his attorney, Councilman David Lys testified that he did a "cursory search" and that the town attorney searched the documents, and Ms. Brennan testified that she was not asked to search her cellphone in connection with the subpoena. Mr. Michels testified that he never saw the subpoena, but turned over his text messages to his attorneys. Stephen Lynch, the superintendent of highways, testified that he was never asked to search either his personal cellphone or town cellphone, Justice Baisley wrote. 

Justice Baisley directed the plaintiffs' counsel to submit "a bill of costs and affirmation of services" within 30 days.

In one minor defeat for the plaintiffs, their request that the cases of 14 fishermen issued summonses in the October 2021 protest be removed from East Hampton Town Justice Court and be consolidated with the contempt hearing was denied.

Dan Rodgers, an attorney representing several of the fishermen who were issued summonses, offered a blunt assessment of the ruling. "The homeowners get rich, their lawyers get paid, and the citizens of East Hampton get screwed," he said in an email on Friday. "Absolutely nothing for the 14 fishermen who have been waiting since last October for their day in court, all because the homeowners wanted to assert control over matters with which they have no connection and did not participate. On this, they rightly lost." 

"We're disappointed, obviously," Mr. Van Scoyoc said on Tuesday. The board was to address the decision with its outside counsel during an executive session after its meeting that day. As for the permits issued since February 2021, "we've been ordered, I guess, to rescind them, or certainly amend them," he said, and that any permit holder "would have to be notified specifically that that doesn't include that stretch of beach. But I think everybody already knew that." 

As to Justice Baisley's repeated citations of Mr. Van Scoyoc's inability to recall actions taken in the wake of the Appellate Division's determination that residents had no right to drive on the beach, he referred to another matter that concurrently occupied town officials, the Covid-19 pandemic. "He may be frustrated with my lack of recollection on a number of points regarding Truck Beach," he said. "However, what I do recall very clearly about that same period of time was that I worked around the clock to be able to secure vaccinations for our community when none were available, and that we put together a vaccine center and administered over 15,000 doses of vaccine. That's when it started, and that was my primary focus. If I was a little fuzzy on some of those details months and months and months afterward, it was because I was working very hard to protect the health of our community."

The trustees held an executive session last night to discuss options with their outside counsel. 

Kenneth Silverman, president of one of the homeowners' associations who testified via video conference at the contempt hearing in February, told The Star in an email that Justice Baisley's decision "should come as no surprise to anyone who attended the hearings or has been following the matter."

"This is a big deal," he said, asking when "was the last time that the Town of East Hampton (or any municipality for that matter) was held in both civil and criminal contempt? . . . The cost could be enormous when you add legal fees to the already settled fines. And, no doubt, the town board will expect the public (that's all of us) to pay for its behavior. This level of disregard for the law is just not acceptable no matter what the cause. It does not matter whether it is Truck Beach, the airport, the wind farm, or chasing businesses in Montauk, the message should get through to the town officials that a different standard of conduct is required."
Note: This article has been updated since it originally appeared in print.

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