An attorney for the Napeague property owners suing East Hampton Town and its trustees over the stretch known as Truck Beach has told attorneys for the town and the trustees that if the elected officials named in the suit do not engage in settlement discussions with his clients, they could be subject to removal from office.
He also said that he will seek to hold the officials personally liable for attorneys’ fees and a fine imposed last month when a judge found them in criminal and civil contempt.
Justice Paul Baisley’s June 30 ruling held the town and trustees in contempt for violating a 2021 Appellate Division decision that the 4,000-foot stretch of Napeague shoreline was privately owned to the mean high water line. He imposed a $239,000 fine, payable to five homeowners’ associations and four individuals, and ordered the town and trustees to pay the plaintiffs’ costs and attorneys’ fees associated with both the contempt motion and a hearing held last winter that led to the 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 in the June 30 decision.
James Catterson, an attorney for the property owners and a former justice of both the State Supreme Court in Suffolk County and the Appellate Division, First Judicial Department, wrote to Christopher McDonald and Ryan Cummings, outside counsel for the town and trustees respectively, on July 13. The attorneys’ fees “well exceed the penalty imposed,” he wrote. “As long as the matter remains unresolved, statutory interest of nine percent will continue to accrue.” If an appeal filed by the town on July 1 is unsuccessful, Mr. Catterson wrote, “the award will be significantly over one million dollars.”
His clients would like to avoid further litigation, Mr. Catterson wrote, “and I suggest that the parties engage in such settlement discussions with the assistance of the Court.” Should the town and trustees refuse, “I have been instructed to prepare a summons and complaint seeking to hold both the individual town board members and the trustees personally liable for their ultra vires actions that precipitated” the contempt findings. The term “ultra vires” refers to an action that is beyond one’s legal power or authority.
The United States Supreme Court, he wrote, “has found that state officials ‘who, as a result of unauthorized, ultra vires action, may be subject to damages assessed against them in their individual capacities to be paid not by the state, but from their personal funds.’ “
Mr. Catterson went further, citing numerous prior decisions in asserting that “a finding of criminal contempt . . . would necessarily result in forced vacancy of a public official’s office.” The Public Officers Law, he continued, is clear “that ‘every public office automatically becomes vacant upon a conviction falling within its purview.’ . . . It is a self-executing statute which provides that this vacancy occurs upon the officeholder’s conviction of ‘a crime involving a violation of his oath of office.’ ”
In short, he argued, members of the town board and trustees are not only personally liable for the fine and attorneys’ fees imposed by Justice Baisley, but, “having violated their respective oaths of office, under precedent cited above, the town board and trustees may be subject to removal.”
Neither Mr. McDonald nor Mr. Cummings, counsel for the town and trustees, replied to an email seeking comment.
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 reservation did not confer authority to issue permits allowing the public to drive and park vehicles on any portion of the beach owned by the homeowners’ associations, Justice Baisley determined. 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 and directed the town and trustees to revoke all beach driving permits “that do not expressly prohibit driving or parking on the beach.”
Recapping the contempt hearing, Justice Baisley wrote that Supervisor Peter Van Scoyoc did not recall details as to the town’s compliance with the Appellate Division’s decision, nor did he ask the town board to amend the code to reflect the beach’s private ownership or instruct law enforcement to prevent vehicle access prior to the June 4, 2021, order to show cause seeking to hold the town in contempt. The town did not comply with a temporary restraining order imposed that day, he wrote; rather, it only acted in response to it.
Commercial fishermen and their supporters held protests in June and October last year, driving across the beach in question before turning around and returning. Fourteen were issued a summons for trespassing at the latter event. The property owners sought to have those cases removed from East Hampton Town Justice Court and be consolidated with the contempt hearing. Justice Baisley denied that request.
In March, the trustees and 12 fishermen, 11 of them among the 14 who were issued summonses, filed a class-action lawsuit on behalf of themselves and all residents of the town, asserting that the homeowners’ associations are unlawfully depriving them of access.
Dan Rodgers, an attorney representing the fishermen, accused the property owners of “hiding behind the robes of a judge,” telling The Star last week that “they’re trying to get the court to do their dirty work,” which he believes is termination of the Benson Deed’s reservation for “fishing and fishing-related purposes.” Unless a property owner is willing to appear in court or sign an affidavit accusing one of the fishermen of trespassing, “we’re going to take that as a clear signal that Truck Beach is open for business,” he said.
Mr. Catterson’s letter “is more than a former Appellate Division Justice threatening to remove elected town officials from office unless they negotiate with the homeowners,” he said in an email. “It’s shameless, unmitigated greed. When will it ever be enough for these homeowners? They have won everything they’ve asked for, and then some. They have taken the beach and convinced a local judge to force taxpayers to pay their legal obligations, and even throw in an extra $239,000 to line their pockets. This scorched-earth approach has left virtually nothing on the table for the town to negotiate.”
“Except the reservation,” he continued. “And that belongs to the people of East Hampton, not the town board.” It will never be negotiated, he said.
Asked about the fees that have accrued in the litigation that began in 2009, Mr. Van Scoyoc said last week that “It’s important for the town to defend its positions, at times, against issues that are the result of people not having their way, in some cases very wealthy people. We have had litigation with billionaires, multimillionaires, who feel that they should have their way. Their way is not always consistent with community values and the will of the people of East Hampton, and so it’s incumbent on town government to protect the community from these kinds of actions. That is the price that you have to pay, in some cases, in order to maintain what’s special about East Hampton.”
