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The Montauk Harbor Jetties Case: The case that may contribute to establishing precedent for claiming coastal erosion as a nuisance.

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A Case Summary for Lay Readers: A group of private coastal waterfront property owners sued the US Army Corps of Engineers, the town of East Hampton, the County of Suffolk, and the State of New York (and the various individuals and departments concerned) in New York State Supreme Court alleging erosion caused by the jetties had and was continuing to damage their properties, and because they said they were deprived of their constitutional rights to due process and equal protection in the matters of their property values being diminished and losing land because of government actions.

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The Montauk Harbor Jetties Case: The case that may contribute to establishing precedent for claiming coastal erosion as a nuisance.

  1. 1. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. 1 The Montauk Harbor Jetties Case THE CASE THAT MAY CONTRIBUTE TO ESTABLISHING PRECEDENT FOR CLAIMING COASTAL EROSION AS A NUISANCE. A summary for lay readers by Lisa Granquist, PhD candidate, Law & Public Policy, Northeastern University www.beachpolicy.net November 16, 2014 Figure 1, Erosion to properties west of the jetties. (Photo credit, T. Vecsey, East Hampton Patch, April 3, 2013) "The lawsuit alleges that the Montauk Harbor Jetties caused catastrophic erosion and damage to the public and private beaches, sand dunes and homes west of the jetties, and has left the plaintiffs homes vulnerable to destruction by future winter storms." Taylor Vecsey in the East Hampton Patch. Read the full text of the case: Cangemi v. United States, 939 F.Supp.2d 188 (E.D.N.Y. 2013)
  2. 2. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. 2 1 WHAT HAPPENED? In 2011, a group of private coastal waterfront property owners sued the US Army Corps of Engineers, the town of East Hampton, the County of Suffolk, and the State of New York (and the various individuals and departments concerned) in New York State Supreme Court alleging erosion caused by the jetties had and was continuing to damage their properties, and because they said they were deprived of their constitutional rights to due process and equal protection in the matters of their property values being diminished and losing land because of government actions. 2 WHAT DID THE COURT SAY? 2.1 THE COURT SAID THAT THESE PRIVATE COASTAL WATERFRONT LANDOWNERS (THE PLAINTIFFS) CAN PROCEED WITH A LAWSUIT AGAINST THE TOWN DEFENDANTS using the reasons (claims) that the Court did not dismiss. (Court ruled on March 29, 2013.) 2.2 THE PLAINTIFFS CANNOT SUE THE STATE OF NEW YORK OR THE FEDERAL GOVERNMENT entities named in this suit in the future using the reasons they alleged in this lawsuit (unless they amended specific claims against the State by a certain date). The Court dismissed all of the property owners’ claims against the State. The court ruled on the Defendants’ motion to dismiss the case; it threw out (dismissed) some reasons to sue and upheld others. In other words, the Federal, State, and Town Defendants wanted the court to “throw out” the case and tell the private property owners that they couldn’t sue for the reasons they claimed. That the Court dismissed some claims, like the takings claims and the State’s violation of the Coastal Zone Management Act, doesn’t mean that there weren’t unlawful violations. Most of the claims that were dismissed were dismissed because of issues of time in filing the claims, and in the case of the CZMA allegations, because the property owners’ claim was confusing. The Court did allow the property owners to amend some claims. The claims (reasons that a lawsuit is based on; what one party sues another party “for”) that the Court upheld, nuisance and trespass, are part of common law. There are not specific statutes (regulations) that govern these nuisance and trespass claims. So, we won’t see references to town or state regulations and ordinances. Also note that it was not in the purview of this Court to rule on the facts of this case (e.g. are the properties being damaged by erosion). The Court had to accept all of the “factual allegations as true.” This is the rule for courts of appeal. 2.3 THE PRIVATE LANDOWNERS CAN SUE THE TOWN The reasons (claims) that they can use to sue the Town in the future using the claims of private nuisance, public nuisance, and trespass.
  3. 3. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. 3 3 PRIVATE NUISANCE 3.1 WHAT IS THE PRIVATE NUISANCE HERE? The Town interfered with the property owners’ use and enjoyment of their properties because their homes are in significant danger of washing away. This is the “nuisance.” A “private” nuisance is something that negatively affects private persons or property. 3.2 WHAT ABOUT ACCRETION? The Court said that the property owners don’t have to show that their properties have interest in the accretion (addition to property area by the accumulation) of sand in order to prove that a nuisance exists. The issues of accretion, erosion, and avulsion are part of the principles of the Public Trust Doctrine which informs common law. 3.3 AN UNREASONABLE NUISANCE The Court said that the nuisance was unreasonable. This means that the property owners may be due damages (monetary compensation). For example, if a neighborhood dog barks a lot when it is outside, it is a nuisance, but is it an unreasonable nuisance? If the dog barks more than, say, 20 times in an hour for a certain number of hours in a row, that would be an unreasonable nuisance for neighbors to put up with. So, the court may remedy the situation by ordering the dog’s owner to keep it inside. 3.4 TOWN ACTED INTENTIONALLY The Court said that the plaintiffs gave sufficient evidence that Town’s actions that resulted in the conditions that caused the nuisance to the property owners could be found intentional. The Town didn’t just concede to the US Army Corps of Engineers’ plans that the Corps could build the jetties. The Town was in frequent communication with the Corps about the jetties and what was happening (the dramatic loss of property), the town also made public statements about the situation, but did nothing. The Town also agreed take the liability of the jetty project on itself by holding the U.S. free from damages that might result from the jetty project. 3.5 TOWN WAS NEGLIGENT The Court said that the property owners showed that the “Town has been involved in, and perhaps even contributed to, the alleged nuisance.” This means that the property owners can sue the Town based on “duty, breach, causation, and damages.”
  4. 4. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. 4 3.6 CAUSATION The Court did not address whether the Town via the jetties was the cause of the nuisance, although it seems clear that everyone involved accepted or assumed that the jetties were the cause of property loss. If the issue is raised in a subsequent case brought by these property owners of whether the jetties or the Town caused the property loss, it will be decided by the jury that hears the case. 4 PUBLIC NUISANCE 4.1 WHAT’S THE DIFFERENCE BETWEEN A PRIVATE AND PUBLIC NUISANCE? “A nuisance is public if "a public right or privilege common to every person in the community is interrupted or interfered with" or when it is "committed in such place and in such manner that the aggregation of private injuries becomes so great and extensive as to constitute a public annoyance and inconvenience, and a wrong against the community.” 4.2 WHEN CAN A PRIVATE PERSON SUE FOR PUBLIC NUISANCE, AS OPPOSED TO THE WHOLE COMMUNITY SUING? " A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large.” 4.2.1 The public nuisance: Potential impacts on the community include changes in beaches and effects on navigability and fishing in the Lake Montauk Harbor area; restricted access to public streets and sidewalks because of illegal parking. 4.2.2 What “special injuries” do the private property owners sustain that are different enough from what impacts the community, and so makes it possible for them to sue for damages caused by the public nuisance? There are two “special injuries”: 1) The Court said that the injury of property loss caused by the jetties (nuisance) to the private property owners is different in kind and degree from the injury to the community at large. 2) These property owners’ driveways and parking areas are blocked by illegal parking, in addition to blocked access to the street and sidewalks suffered by the community at large. 4.2.3 What gives these private property owners the right to come before the court? Asserting that the public nuisance caused a decrease in home and property values qualifies as special damages. This means that these particular property owners qualify to come before the court (have standing) to bring a public nuisance suit against the town.
  5. 5. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. 5 5 TRESPASS 5.1 WHAT IS TRESPASS? In New York, “[land] trespass is the intentional invasion of another’s property.” 5.2 DOES COASTAL EROSION CONSTITUTE TRESPASS? The Town alleged that it did not: The Town asserted that “erosion along the ocean does not affect a trespass.”1 The property owners said it is the water entering their land that constitutes the trespass: The property owners didn’t base their trespass claim on the Town’s definition of trespass using erosion as the trespass. They based it on an established version of trespass that includes entry of water onto land. 5.3 WHAT THE COURT SAID ABOUT TRESPASS 5.3.1 The Court didn’t comment on whether coastal erosion constituted trespass in this particular case because the plaintiffs didn’t use erosion as the basis of their trespass claim. 5.3.2 The Court did accept the property owners’ claim of trespass using the reason that water entered their land. 5.3.3 The Court found that the property owners’ argument was sufficient to allege that the Town had intent regarding unlawful intrusion onto their properties. 6 OTHER ISSUES There are other issues in this case that aren’t presented in this summary because they (i) are probably not interesting to this audience, and (ii) aren’t necessarily pertinent to the discussions that coastal managers and property owners and other interested stakeholders would have during initial looks at erosion nuisance and water over land trespass situations in their towns. These other issues are: Legal standards, preemption, and immunity for discretionary acts. 1 Note that federal and state takings claims were dismissed with prejudice. The plaintiffs claimed that the land loss from erosion caused by the jetties constituted a taking. The Court ruled that the takings claims were not filed in a timely fashion according to the statutes it used to determine timeliness.
  6. 6. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. 6 7 CLAIMS THAT WERE DISMISSED AGAINST THE STATE AND FEDERAL GOVERNMENTS “With prejudice” means that the plaintiffs (landowners) cannot sue the defendant(s) in the future in a different law suit using the same claim. This is a final judgment. “Without prejudice” means that the plaintiffs (landowners) can sue the defendant(s) in the future in a different law suit using the same claim. 7.1 CLAIMS AGAINST THE FEDERAL GOVERNMENT: Federal takings claim: Dismissed with prejudice (barred by the statute of limitations) Note that the court did not say that there was no taking, only that the claim by the plaintiffs was filed past the statute of limitations that the court decided to use to qualify the timing of the claim. Due process claim: Dismissed with prejudice (time-barred) Equal protection claim: Dismissed with prejudice (time-barred) 7.2 CLAIMS AGAINST THE STATE OF NEW YORK: Negligence: Dismissed with prejudice Notice: Dismissed with prejudice Statutes of Limitations: - Court agrees with defendants re: state takings, unjust enrichment State takings: Dismissed with prejudice State unjust enrichment: Dismissed with prejudice Individual Liability of Wilkinson for Section 1983 Claims: Dismissed without prejudice Reference Cangemi v. United States, 939 F. Supp.2d 188 (EDNY 2013)

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