JERRY GARGUILO, Judge.
Plaintiffs commenced this action on September 2, 2009 to quiet title pursuant to RPAPL article 15, for permanent injunctions, and for a declaratory judgment concerning disputed beachfront land.
Defendant Town of East Hampton ("Town") enacted Local Law No. 21 on September 24, 1991 which was codified as Chapter 91 of the Town Code to regulate beach areas within the boundaries of the Town. Based on the definitions contained therein, the subject property is a Trustee beach, owned and managed by the Trustees (see Town Code § 91-3). Chapter 91 authorizes the Town to issue beach vehicle permits to Town residents free of charge and to non-residents for a fee of $275 (non-resident permits expire yearly on December 31), allowing the operation of vehicles on ocean beaches, including the subject property (see Town Code §§ 91-2, 91-5). It also contains regulations for vehicular beach use (see Town Code § 91-5). Notably, beach vehicles are required to maintain a distance of no less than 50 feet seaward of the beach grass line, if possible, and are prohibited from operating over or upon any dune, bluff or vegetation (see Town Code § 91-5 [C], , ).
Plaintiffs claim that prior to the enactment of Chapter 91 of the Town Code, net fisherman used the subject beach area and that it was not accessed by vehicles and used by the public for recreational purposes in its current nature and intensity. They also claims that defendants Trustees and Town grant to beach vehicle permit holders rights to use the subject property to park and drive their vehicles and to congregate thereon during "summer season" daytime hours resulting often in more than 200 vehicles being parked at any one time by members of the public who then erect tents, picnic, cook food, let their dogs run free, and bathe in the ocean waters without any lifeguards. They argue that the vehicular use of the beach area is dangerous as the vehicles often speed, placing plaintiffs and other pedestrians in danger; the vehicles are often driven or parked on the beach grass in environmentally sensitive areas within and adjacent to the beach area thereby destabilizing the sand dunes that provide protection to plaintiffs' property against upland flooding; and members of the public frequently light bonfires and set off fireworks creating the risk of, or resulting in, beach grass fires that endanger the upland property and houses including those owned by plaintiffs. Plaintiffs also argue that such use constitutes a nuisance in the form of loud truck and car motor noise and trash and debris from members of the public and their animals polluting the beach, dunes, water and air, thereby substantially and unreasonably interfering with plaintiffs' quiet enjoyment of their homes and beaches. They further argue that defendants, through their Town Code provisions and "Beach Driving Ordinances," have created a defacto parking lot and bathing beach on the subject property and are allowing activities unauthorized by the Benson deed.
Plaintiffs allege that vehicles access said beach area through a natural gap in the dune of less than ten feet in width located at the eastern end of Marine Boulevard. According to plaintiffs, on certain summer weekends, said access point has 600 or more entries and exits by vehicles. Plaintiffs also allege that the right to use said access point was granted to the Trustees by the predecessor in title to plaintiff Dunes at Napeague Property Owners Association, Inc. by a document entitled "Dune Associates Declaration of Covenants and Restrictions" ("Covenants and Restrictions") dated June 26, 1981 and filed in the Suffolk County Clerk's Office on June 30, 1981, and by a document dated in 1996 between additional defendants Irving C. Marcus and Harriet Marcus ("Marcus") and the Trustees. The Covenants and Restrictions limited the use of the access point to the use in existence in 1981 and prohibited lot owners like the Marcuses from using lots on the map of Dunes at Napeague to access adjoining property. Plaintiffs argue that the current use of the access point by public vehicles for recreational use of the beach is different from, and substantially greater and denser (particularly during piping plover season), than the use by net fishermen in 1981.
By their first cause of action, plaintiffs The Seaview at Amagansett, Ltd. ("The Seaview"), Dunes at Napeague Property Owners Association, Inc. ("Dunes"), The Tides Homeowners Association, Inc. ("The Tides"), Whalers Lane Homeowners Association, Inc. ("Whalers Lane"), and The Ocean Estates Property Owners Association, Inc. ("Ocean Estates") seek a determination that they are the lawful owners of a portion of the subject beach area and are vested with absolute and unencumbered title in fee to said property subject to an easement for the benefit of plaintiff Robert Higgins and non-party Judith Higgins. The second cause of action alleges that the reservation in the Benson deed does not inure to the benefit of current Town inhabitants, has been terminated or is terminable by the fee owner, and the Trustees and Town have no right or authority pursuant to said reservation to issue beach vehicle permits or to grant anyone permission to use the subject property to drive and park their vehicles. The third cause of action sounds in trespass and plaintiffs seek a permanent injunction against the Trustees and Town enjoining them and any persons acting under them, or pursuant to their authority, from entering into or interfering with plaintiffs' property.
By their fourth, fifth and sixth causes of action, plaintiffs seek a determination of the parties' rights and obligations with respect to the access point to the beach area and a permanent injunction against the Trustees and Town from using the access point in a manner inconsistent with the Marcus documents. The eighth and ninth causes of action allege that the Trustees and Town have created a private and public nuisance and plaintiffs seek a permanent injunction against the Trustees and Town to abate the nuisances and to restrain them from issuing beach vehicle permits. By their tenth and eleventh causes of action, plaintiffs seek a declaration that Chapter 91 of the Town Code violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1, Section 11 of the New York State Constitution by discriminating against plaintiffs in favor of beachfront owners in other areas of the Town and vehicular beach users and bears no rational relationship to any legitimate interest of the Trustees and the Town. The twelfth cause of action alleges that the Trustees have breached their fiduciary duty to plaintiffs.
Defendant Trustees now move (004), and defendant Town now moves (005), for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint. They seek summary judgment based on, among other things, the defenses of laches and lack of ownership of the disputed beach area. They assert that the action seeks to disrupt 131 years of settled public use of the beach. They agree for the purposes of their motions that plaintiffs derive title through mesne conveyances from the Benson Deed. Defendants Trustees and Town also assert that said title was never full fee title but was limited by an exception for public use of the beach, that the Trustees' rights to sell lands in East Hampton, including the subject property, derive from the Dongan Patent, and that the Trustees hold the fee of the land and certain beaches granted by the Dongan Patent in public trust for use by the Town's inhabitants. They argue that each of the filed subdivision maps/plats from the 1960's onward contain inscriptions in which plaintiff's predecessors in title, the subdividers, expressly disclaimed any title to the beach presumably in return for approval of the subdivisions by the municipality, that said inscriptions constituted public acknowledgment of said disclaimer and acceptance of public use of the beach, and that plaintiffs cannot rely solely on the contents of the deeds recorded after the filing of the subdivision maps/plats to demonstrate ownership of the beach. Their submissions in support of their motion include deposition transcripts of the individual plaintiffs and officers of plaintiff homeowners or property owners associations, subdivision plats/maps of plaintiff homeowners or property owners associations, and deeds of the individual plaintiffs.
Plaintiffs contend that the subject property was lawfully conveyed by the Trustees to Arthur Benson in 1882 solely with a reservation in the deed for the extremely limited purpose of landing fishing boats and caring for the catch; and that the "public trust doctrine" is inapplicable inasmuch as the subject property is not located underwater and is not designated parkland or recreational property. They argue that defendants cannot rely on inscriptions contained in the subdivision maps, and that defendants offer no title expert testimony, title abstracts or other title instruments demonstrating that the subject beach area is not owned by plaintiffs. Plaintiffs assert that their submitted chains of title and certified deeds clearly establish that they are the owners in fee of the subject property and that the notations on some of the subdivision maps and language in certain deeds referred to by the Trustees and Town are not relevant. Plaintiffs' submissions include the affidavit of their real property title expert, Lance R. Pomerantz, Esq., who provided chains of title to the subject property from the Benson Deed onward, and chains of title containing certified copies of the deeds in said chains of title.
By his affidavit, Mr. Pomerantz avers that he has been actively engaged in land title examination since 1979 and has been examining land titles in Suffolk County, New York since 1986. He states that in 2005 and 2006 he personally searched the chains of title by identifying deeds and other title documents for all parcels forming the subject property starting with the Benson Deed while searching the records of the Suffolk County Clerk's Office and the Suffolk County Surrogate's Court. He informs that the Benson Deed is the source of title for all of the parcels comprising the subject property and that he provided plaintiffs' counsel with the prepared chains of title and deeds and related documents identified by him.
Initially, the Court notes that the introduction of the Journal of the Trustees for the years 1870 to 1897 submitted herein indicates that "Arthur W. Benson bought all of the common land on Napeague below the highlands between a strip of land left for a road eight rods wide starting at the foot of highland on the Montauk road and running to the Ocean at right angle with Montauk road and Montauk for $1,375."
Plaintiff Robert Cristofaro testified at his deposition that he is treasurer of Dunes and is the owner of Lot 14 on the map of Dunes at Napeague. Plaintiff Robert Cooperman testified at his deposition that he is an officer of The Tides and that he owns a lot depicted on the subdivision map of Mitchell Dunes. At his deposition, plaintiff Marc Helie testified that he is an officer of Whalers Lane, that he owns a lot on the map of Whaler's Cove, and that additional defendant David Stuart Tyson is his adjacent neighbor. Plaintiff Robert Higgins testified at his deposition that he owns 32 Marine Boulevard, which is immediately west of The Seaview subdivision but is not located within a subdivision, and that he does not claim any ownership interest in the beach area seaward of the dune on the Atlantic Ocean other than an easement of five feet for walking to the water.
The subdivision map of Seaview at Amagansett approved by the Town in 1967 indicates the southern boundaries of the lots closest to the Atlantic Ocean to be the "Foot of Beach Banks." The subdivision map of Dunes at Napeague approved by the Town in 1981 indicates that the southern map limit line follows the "Edge of Beach Grass" and that "The Developer does not purport to hold or to convey title to lands south of map limit line." The subdivision map of Mitchell Dunes (The Tides) approved by the Town in 1982 indicates the southern boundary to be beach grass. The subdivision map of Whaler's Cove at East Hampton approved by the Town in 1985 indicates the southernmost boundary to be north of the "Approx Line of Beach Grass" and that "The Developer does not purport to hold or to convey title to lands south of Beach Grass Line." The subdivision map of Ocean Estates approved by the Town in 1981 indicates the southernmost map limit line to be slightly north of the "Line of Beach Grass" with the qualification that "The Developer does not purport to hold or to convey title to lands south of the map limit line."
However, the deeds in the chains of title of plaintiffs The Seaview, Dunes, The Tides, Whaler's Lane, and Ocean Estates expressly indicate that their properties extend south to the mean high water mark or line of the Atlantic Ocean. The Court notes that the deeds of additional defendants David Stuart Tyson, Stephanie Bitterman and June Merton also clearly show that their properties extend south to the mean high water mark or line of the Atlantic Ocean.
"[A] purchaser takes with notice from the record only of incumbrances in his direct chain of title. In the absence of actual notice before or at the time of his purchase or of other exceptional circumstances, an owner of land is only bound by restrictions if they appear in some deed of record in the conveyance to himself or his direct predecessors in title" (
In determining the boundaries of described property various descriptive elements such as monuments, courses and distances, adjacent lands, and area or quantity may be relied upon (1 Rasch, Real Property Law & Practice, s 1153; see
Real Property Law § 334 provides that no real property subdivided into separate lots can be offered for sale to the public without the filing of a map in the Office of the County Clerk or Register of Deeds where the property is located (see
As the moving party, defendants Trustees and Town bear the initial burden of presenting competent admissible evidence demonstrating the absence of any triable issue of fact as to the location of the southerly boundary lines of the properties of plaintiffs The Seaview, Dunes, The Tides, Whaler's Lane, and Ocean Estates (see
Here, the movants, defendants Trustees and Town, failed to demonstrate that the notations or inscriptions concerning the southern boundaries on the submitted subdivision maps/plats are enforceable either as zoning restrictions or as deed restrictions that run with the land, and that plaintiffs The Seaview, Dunes, The Tides, Whaler's Lane, and Ocean Estates do not hold title to the subject beach area based on said subdivision map/plat notations or inscriptions. Defendants failed to submit any expert evidence to support their assertions. Instead, the certified chains of title of the deeds submitted by plaintiffs indicate that plaintiffs The Seaview, Dunes, The Tides, Whaler's Lane, and Ocean Estates hold unbroken chains of title starting from the Benson Deed to the subject beach area, that is, to the high water mark or line of the Atlantic Ocean. Based on the foregoing, defendants Trustees and Town are denied summary judgment dismissing the first cause of action to quiet title to the disputed beach area. Plaintiffs' third cause of action for trespass through twelfth cause of action for breach of fiduciary duty also survive as they relate to interference in plaintiffs' right to use and enjoy their properties and to the endangerment of their properties, health, safety and comfort by the public's use of the subject beach area (see
Inverse condemnation, or a de facto taking "is a permanent ouster of the owner or a permanent physical or legal interference with the owner's physical use, possession, and enjoyment of the property by one having condemnation powers" (
The Court also notes from its review of the submitted deeds that they contained the following general appurtenance clause concerning easements of the inhabitants of the Town of East Hampton:
Said easement was appurtenant and passed to all subsequent purchasers of the dominant estate through the general appurtenance clauses until approximately the late 1960's when the clause no longer appeared in the deeds (see
The properties of plaintiffs The Seaview, Dunes, The Tides, Whaler's Lane, and Ocean Estates may continue to be burdened by said easement. The nature and extent of use of an easement may be enlarged or changed (see
Moreover, the doctrine of laches has no application when plaintiffs allege a continuing wrong as they do herein with respect to the ongoing use of the subject beach area by members of the public with "beach vehicle permits" (see
Accordingly, the motions (004, 005) by defendant Trustees and Town, respectively, for summary judgment dismissing the complaint are denied.