Battle On The Beach

As frequently as the Southampton Town Trustees have been in court over the years, and as rulings have come down in dribs and drabs during that time, the court ruling by the State Supreme Court’s Appellate Division in April might feel like just another chapter in a long saga. But this is a jaw-dropping plot twist, and while the true impact is yet to be determined, the stakes cannot be overstated. This legal question strikes at the heart of the region’s uniqueness, focusing on its most valuable resource, and who gets to manage it. It’s a battle fought on the beaches.

In a nutshell, the Town Trustees sued the Village of Quogue when it permitted the use of sandbags, buried in artificial dunes, to protect several properties after severe erosion in the winter of 2011. The Trustees maintained that the project required their permission. But, back in 2012, the court rejected that idea, saying that, no, the Trustees could regulate activities between the dunes and high water mark, but not farther inland. The Trustees appealed—and perhaps ironically, saw their position even further eroded. This time, the court concluded that the Trustees actually did not have the right to regulate construction on the beaches, either.

The Appellate Division’s four judges agreed with Quogue’s position: that the Town Trustees’ long-touted authority, going back to the 17th century Dongan Patent, was restricted to the kind of activities envisioned at the timewhaling, gathering seaweed, and landing and launching boats for those purposes. Seawalls, geotubes and other tools for protecting properties were outside their purview. In essence, the courts agreed that the Trustees claimed those powers in recent years with no basis in law.


or now, the Trustees are said to be talking with village

representatives about a compromise. That’s new: The

Trustees, for the past decade or so, have been defensive and antagonistic when it comes to their authority. But after such a severe setback in court—and some new Trustees in the mix—the time for tactical negotiation seems long overdue. Also, there likely will be an appeal. Certainly, it’s a case of remarkable importance, and one with a tangled web of legal roots that snake back to well before the United States existed, to colonial writs that first created local government on the South Fork.

Perhaps that’s the key point: The Trustees have for years been stumbling along an ever-shifting legal path, subject to the whims of interpretation in the same way the shoreline is subject to Mother Nature’s inconsistencies. Maybe it’s time to settle the matters once and for all—with new, modern legislation.

What makes the region special? In some coastal communities, those who can afford beachfront properties own all the way to the water: it’s their beach. That’s never been true in Southampton Town: The Trustees are, after all, “trustees” of the land on behalf of the “freeholders and commonality”—everyone. The Trustees have long argued, passionately, that protecting access to the beaches for all residents of the town is their raison d’etre, and that includes not just seaweed and whales: it also includes the right to “pass and repass” (as stated in the Dongan Patent). At one time, that was wagons and horses; today, it’s four-wheel-drive vehicles. But the right remains.

It also seems to follow that protecting access to the beaches includes making sure the beaches are there. That’s where hard structures on the beach come into play: There are “experts” who will argue the point, but a seawall, bulkhead or similar hard structure parallel to the beach tends to make the sand in front of it disappear. It protects an individual property, but at the cost of a commonly held beach.

Do the Trustees have a right to reject hard structures in this light? Can they say that a seawall built, say, 20 feet inland from the dune is still a potential risk, since water might one day reach it and wash the beach away? Should villages, which seem to have tunnel vision when it comes to protecting properties within their borders, be permitted to regulate the structures if it affects all town residents? Does that responsibility fall instead to the town, villages and State Department of Environmental Conservation, or some combination? How can a regional strategy be recognized?

These are complicated legal matters—and it’s time to stop parsing 300-year-old language, full of seaweed and whales, to settle them. State legislation should be drafted to clarify this mess, and to acknowledge the need for clarity when it comes to shoreline policy and who sets it. Is that the Town Trustees? There’s no reason it shouldn’t be. But they must be given a clear, modern mandate—and ironclad jurisdiction—as the front line protection of the beaches on behalf of the populace, not just those wealthy enough to build on its edges.

The battle of the beachfront has been fought with muskets for far too long. It’s time for modern firepower.