In an area of shifting sands, the Suffolk County Supreme Court in Semlear, et al. v. Albert Marine Construction, Inc., delineated property rights landward of the crest of the dune, the “line of demarcation”, and the rights of the Southampton Town Trustees to regulate the placement of shoreline protection structures along the beaches of the Atlantic Ocean.  The Town Trustees have historically claimed the authority to regulate any such work along the oceanfront.

As a result of a patent issued by the King of England in 1686 (the “Dongan Patent”), the Trustees have long defended their right to regulate the use of the shores and beaches of the Atlantic Ocean in the Town of Southampton.  The Dongan Patent granted the Trustees an easement over the “Ocean Beach Area” and title to the lands underwater.  This easement, the Trustees claim, gives them broad powers to regulate the placement of structures along the shoreline.  In recent decades, based on this presumed authority, the Trustees have banned the installation of erosion protection structures (i.e., bulkheads and rock revetments) on the basis that their placement could accelerate erosion, effectively erasing the public’s easement to the shoreline.

Albert Marine Construction, Inc. and several other defendants refused to acknowledge the Trustees’ right to regulate the shores and beaches of the Atlantic Ocean and installed “Geotubes,” which are large sandbags buried beneath the dunes to protect the shoreline, without a Trustee permit.

The Trustees commenced an action for an injunction seeking to enjoin the defendants from placing Geotubes in the “Ocean Beach Area” without a Trustee permit.  The Trustees contended that the installation of the shoreline protection structures violated their right to regulate such activities in the Ocean Beach Area and sought a declaration that they possess the right to regulate the beach and associated dunes to protect their easement over the ocean beaches.

Justice Peter Mayer acknowledged that, by virtue of the colonial grant, the Trustees have the right to regulate activities to protect their easement over the ocean beaches, but only as to those areas of the beaches that lie south of the crest of the primary dune and north of the high water mark of the Atlantic Ocean.  He then granted summary judgment in favor of the defendants and dismissed the Trustees’ action in its entirety on the basis that the complaint failed to sufficiently limit the allegations to the area over which the Trustees have jurisdiction and contained no allegations that the defendants’ actions affected the land or waters below the crest of the primary dune.

If this decision is upheld on appeal, its effects could decide how property owners may seek to protect their waterfront homes in the Town of Southampton.