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Appellate Division Upholds Oceanfront Owner’s Claim Against East Hampton Town Trustees – October 23, 2013

In a boundary-line dispute between one oceanfront landowner and the East Hampton Town Trustees, the Appellate Division, Second Department has upheld the owner’s claim that the boundary was a movable one that was based on the average beach grass line, rather than a fixed line found further inland, as had been
urged by the Trustees in Macklowe v. Trustees of the Town of East Hampton, 2013 NY Slip Op 6840.

The dispute dates back more than five years, when the Trustees first claimed that some of the dunelands adjacent to the property of Lloyd Macklowe were really owned by them. Mr. Macklowe was forced to bring an action against the Trustees. He retained Esseks, Hefter & Angel, LLP and Ackerman, O’Brien, Pachman & Brown, LLP to argue his case, which went to trial before the Hon. Thomas F. Whelan of the New York Supreme Court in 2011. Justice Whelan, after hearing both claims, found in favor of Mr. Macklowe and against the Trustees in a March 2, 2012 decision. The Trustees appealed the decision to the Appellate Division, which again found in favor of Mr. Macklowe and upheld “the Supreme Court’s determination that the plaintiffs hold title to the disputed lands north of an ambulatory line defined by the location of the average southerly line of beach grass on the beach of the Atlantic Ocean.”

“The decision is based on long-standing rules regarding title to lands adjacent to ever-changing shorelines,” explained EHA attorney, Anthony Pasca, “but it was novel to the extent that it was the first case where a court had to determine whether a boundary defined by the ‘beach grass’ line would be governed by the same rules that have been traditionally applied to boundaries defined by the ‘high-water’
line.” With respect to high-water line boundaries, New York has long recognized that the boundary is ambulatory and can change based on gradual long-term erosion or accretion, though it would not change based on avulsion, which is the sudden loss of land from storm events. “In East Hampton, some boundaries
between private property and Trustee beaches are defined by a beach grass line, which generally separates the sandy beaches from the dunelands and which acts like the high-water mark to the extent it can experience long-term changes due to erosion and accretion, and short-term changes from avulsive storm events,” says Mr. Pasca. In Mr. Macklowe’s case, the beach grass line had moved, along with the
beach, further south, and the Trustees tried to claim the benefit of that movement by arguing that the boundary between Mr. Macklowe’s property and theirs was not movable but was fixed based on the location of the beach grass lines several decades earlier. Both the trial court and Appellate Division agreed with Mr. Macklowe, however, and found that Mr. Macklowe’s southern boundary was an ambulatory one defined by the average location of the beach grass line.

Leonard Ackerman, one of Mr. Macklowe’s attorneys, offered the following comment on the decision: “By recognizing that the beach grass line was a movable boundary, the courts actually did nothing more than give effect to what the Trustees had intended more than a century ago when they decided to deed all of the
dunelands and vegetated areas to Mr. Macklowe’s predecessor while reserving the sandy beach for themselves. It is just unfortunate that Mr. Macklowe had to spend five years defending his title because the current Trustees decided they wanted to take back dunelands that their predecessors had originally conveyed away.”

Mr. Ackerman and Mr. Pasca both warned, however, that though the decision is important and has precedential value, many beach front properties in the Town of East Hampton are privately owned to the mean high water line. In those cases, the Trustees would not own any property (whether above or below the beach grass line) and the Macklowe decision would have no applicability.

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