The Inconsistent Rulings of The Second Department: You Can Drive on the Beach – No You Can’t!

The Second Department handed down a decision dealing with driving on the beach in Southampton, Thomas v Trustees of the Freeholders and Commonalty of Southampton, ____ AD3d ____ (February 9, 2022).

The Southampton Village Code prohibited the driving on ocean beaches between 9:00 am and 6:00 pm during summer months.  However, the Village Code provides an exception to this general prohibition for a portion of the beach that includes the Thomas’s property, among others.  Plaintiffs alleged several causes of action including a per se unconstitutional taking.

One fact stated by the Court was that Plaintiff owned her property which was bounded by the high-waterline of the Atlantic Ocean.  The Court affirmed the trial court’s determination that the Village’s regulation of driving and parking on the subject beach area did not constitute a taking in light of the existence of a public easement over the subject beach area.

This decision is completely in derogation of the same court’s decision in Seaview at Amagansett, Ltd. v Trustees of Freeholders & Commonalty of Town of East Hampton, 191 AD3d 717 (2d Dept 2021). In Seaview, the trial court dismissed the action brought by property owners.  The Appellate Division reversed and granted the homeowners injunctive relief relating to driving and parking on the East Hampton beach at Napeague.  In Thomas, the court stated, “the claimed fishing and fishing-related purposes” was claimed as authority for driving and parking.  Having tried and argued the appeal, I can say this is dishonest.  We did not rely on a reservation in a deed.  There were many more reasons given by the Trustees and Town as to why driving and parking was permissible.

These are the points we made in Seaview.

Point I: Because the original Dongan Patent conveyed the subject beach to the trustees under a public trust, it was not validly conveyed under the Benson Deed and never entered the chain of title.

Point II: Alternatively, a prescriptive easement for public use has arisen with respect to the subject beach by operation of law.

Point III: The effect of the subdivision plats at issue, which disclaimed any ownership interest in the subject beach area, was to offer the property dedication for a public easement.

Point IV: This Court should adopt Supreme Court’s finding – that Plaintiffs failed to establish title ownership by a preponderance of the evidence, because it more nearly comports with the weight of the evidence than the Appellate Division’s contrary finding.

Point V: The Appellate Division’s Decision is internally inconsistent and improperly impairs the town’s right to regulate a public easement for fishing and fishing-related purposes.

But there was even more dishonesty, the very same Appellate Court held in Thomas that lands seaward of the high-water line are held in trust for the public, but would not consider the public trust in the Seaview case.  Further, in extinguishing its holding in Seaview, the Thomas Court held that there was a legislatively created and judicially recognized public access easement over the subject beach.  Well, this is error.   The Seaview case also involved legislatively created public access easement over the beach.   Testimony at the trial described why the Napeague beach was selected.  The reason was because the Town of East Hampton knew that the public had historically driven cars over the beach and parked on it.

In short, the decision in Thomas v Trustee was completely in derogation of the same court’s holding in Seaview v Trustees.

Posted in Access to Beach, Per Se Taking, Title to Beach
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