Condemnation Of ‘Truck Beach’ On The Table, But Cost Up In The Air

Michael Wrighton Sep 22, 2021

East Hampton Town officials this week began discussing whether to move to seize ownership of nearly a mile of Amagansett beach through the town’s powers of eminent domain, after state courts declared it the private property of adjacent homeowners.

Supervisor Peter Van Scoyoc said that he is in favor of moving forward with eminent domain condemnation, essentially immediately.

“It’s going to have to be a board decision, but as far as I’m concerned, I think that’s the direction we should go,” Mr. Van Scoyoc said. “I’m not prepared to give up nearly a mile of beach that has been used by the public for centuries to some wealthy landowners. I think that sets a terrible precedent.”

“I think it’s something that will happen relatively quickly,” Mr. Van Scoyoc said. “There’s no deadline, but there’s no point in waiting.”

The 4,000-foot stretch of beach between Napeague Lane and the western boundary of Napeague State Park has long been known as “Truck Beach” because it was the largest, and westernmost, stretch of beach where the town allowed 4x4 vehicles to drive on ocean beaches during the day in summertime. Most other town beaches have been closed to vehicles between 10 a.m. and 6 p.m., from mid-June to mid-September, since the 1980s.

In the 1980s, there were only a smattering of homes built among what was then dunelands. Those dunelands are now buried beneath more than 110 homes, of ever-growing sizes.

The owners of those homes, repulsed by the increasingly dense lineup of 4x4s on summer weekends, sued in 2009. They claimed the beach had been part of the original deed of sale of the land their homes are now built on from the East Hampton Town Trustees to developer Arthur Benson in 1882.

Earlier this year, after 12 years of litigation, a state court agreed and ordered the town to stop the use of the beach by vehicles.

The homeowners cannot stop the town from seizing ownership of the beach. They can, however, take the matter back to court to fight over how much the beach is worth.

When talk of condemnation came up in 2015, attorneys for the town said the beach, which can’t be developed or used for anything and would still be there for the homeowners to access, should be of minimal value — perhaps less than $1 million.

The homeowners argued that the beach being private and essentially empty for the sole use of the homeowners carries a mountain of value, compared to if the beach is public and packed with hundreds of vehicles at times. The value of every home in the the nearby neighborhoods, which all have deeded access rights to the beach, would be greatly impacted by the difference in the conditions — especially the most valuable ones that front on the ocean. They have put the “value” of the beach in the hundreds of millions of dollars.

The rub for the town is, it has to decide whether to condemn or not before it knows who is “right.”

“It would be nice if we could get it back, and I think condemnation should be considered — I just wonder at what cost,” Councilman Jeff Bragman said. “We can get title fairly quickly. But then you litigate the price. I was Planning Board attorney when we did Barcelona Neck way back when and it was good news, bad news. We saved the property — Ben Heller wanted a 120-lot subdivision — but the court awarded the largest verdict in state history. Of course, looking back, it was a bargain.”

The state had appraised Barcelona Neck, the 341 acre tract Mr. Heller owned, at $12 million in 1992 and agreed to pay him $15 million — creating the current 1,000-acre park. Mr. Heller sued, claiming the land was worth $114 million. The state settled and gave Mr. Heller $40 million.

Mr. Heller’s attorneys from back then — the Riverhead law firm Esseks Hefter & Angel — are also representing the homeowners in the Truck Beach case.

Steve Angel, the partner who has handled the Truck Beach case for the firm, said the town can execute the condemnation quickly. While the town must get appraisals of the beach and agree to pay the amount of the highest appraisal, Mr. Angel acknowledged that such appraisals can be manipulated by dictating what use the land can be put to — something especially vague when trying to ballpark the value of an ocean beach.

But the two sides will then land in court, with competing appraisals and arguments over the value — and the town will be bound to whatever valuation the court decides on.

“The town or government has to condemn and find out the value afterward — and you can’t give it back,” Mr. Angel said. “Let’s assume my clients are correct and the judge says it’s worth $500 million. The town can’t change its mind and say that’s too much. It’s too late.”

Mr. Angel also noted that if the amount the court says is the proper value is considerably higher than what the town’s original appraisal and offer is, the court will also order the town to pay interest and the legal fees of the property owners.

“Nine percent annual interest is the standard on judgments in New York,” Mr. Angel said. “That’s a really tough number, especially in a long-running condemnation case.”

The homeowners’ attorneys have frequently pointed to a case known simply as Gyrodyne — in which New York State seized 245 acres from the St. James helicopter manufacturer to expand the Stony Brook University campus. The state originally valued the property at $26 million. After seven years of litigation, a court declared the property worth $125 million — and ordered the state to pay $67 million in interest.

“They will claim it’s worth hundreds of millions of dollars — even though you can’t build anything on it,” Mr. Van Scoyoc said. “We’ll wade into all this in the coming weeks.”

The Town Board held its first discussion of the matter, in a private executive session with its attorneys, on Tuesday.

Meanwhile, an attorney for Amagansett commercial fishermen who still use the ocean beaches to launch boats into the surf to deploy gill nets for striped bass and bluefish, said this week that the fishermen fully expect to be able to use the beach as they always have since the state court left intact a caveat to the 1882 that “permits the public use of the properties described therein only for fishing and fishing related purposes.”

The attorney, Dan Rodgers, who organized a symbolic violation of the court order by dozens of trucks in June, said that the fishing crews’ work now is no different than it was in 1882, save for the adornment of combustion engines on the carts used to haul their nets and catch.

“My clients … have every intention of driving on the beach with motorized vehicles for the purpose of engaging in fishing related activities,” Mr. Rodgers said. “I believe this decision, to privatize the beach, is simply unenforceable against my clients. That language of the easement is general in nature, ‘fishing and fishing related purposes.’ My clients are unable to fish without motorized vehicles, which they must drive on the beach and ultimately park on the beach. This is no different from what was used in 1882 when they used wheeled carts and wagons.”

The state Appellate Division, Second Department, the Brooklyn court that issued the ruling in the homeowners’ favor, has weighed in on other centuries-old local easements in recent years with a very literal reading, saying they apply only to the conditions that existed at the time they were created. The court has ordered the town to actively prohibit all vehicles from the beach, but has yet to weigh in on the exact extent of the reservation to the deed that it left intact.

With the conditions that created Truck Beach gone this summer, a confrontational testing of the new owners’ will may be the bolder approach, but perhaps not be the easier one.

“If there’s somebody who feels that there’s something the public should have, they should talk to us — that is one one-thousandth of the issue in this,” said Ken Silverman,a member of one of the homeowners associations that brought the lawsuit, who has been the lone public spokesman for the plaintiffs since the 2016 trial. “If there is an active fishing crew that wants access, they should talk to us.

“We are not privatizing anything,” Mr. Silverman added. “The people who privatized this were the Trustees — when they sold it. All we did was object to the town claiming they owned something they didn’t own.”