ULTRA VIRES REGULATIONS
Waterfront property issues in the Hamptons are made more complicated by the fact that Southampton and East Hampton Towns have boards which were originally established in the 1600s, under colonial patents such as the “Dongan Patent,” known as the Trustees of the Freeholders and Commonalty of the Town of Southampton and East Hampton, respectively, whose jurisdiction over waterfront parcels is sometimes questionable — or even patently unlawful. These colonial boards, which used to exist throughout Long Island, have been eliminated in every other town in the State of New York except for East Hampton, Southampton and Southold Towns. These Trustees take special interest in the regulation of waterfront property and have been known to assert regulatory powers that exceed theboundaries of their authority under New York State law.
When a governmental body exceeds its legitimate authority, the law calls such overreaching “ultra vires,” meaning “beyond lawful power.” Ultra vires acts by a governmental entity are particularly invidious because the general public has no reason to question or investigate the legal basis for the government’s assertion of power. Ultra vires regulations have, in fact, been held to violate the due process provisions of the U.S. Constitution, and they can be a serious problem for waterfront property owners and anyone else improperly subjected to their application.
In 2015, I won a landmark case entitled Semlear v. Incorporated Village of Quogue, in which it was determined that the Trustees of the Freeholders and Commonalty of the Town of Southampton did not have regulatory power to require permits for dune restorations within incorporated villages. The Southampton Town Trustees had, for years, been improperly requiring property owners within incorporated villages to apply to them for permits for dune restorations and other activities on ocean beaches. But when they sued the Village of Quogue, which was installing a new dune structure to protect its own Village beach, as well as two other private Village homeowners, arguing that the work could not be done without permits from them, it was the beginning of the end of their long era of overreaching.
When I was hired by the Village of Quogue to defend it against the Southampton Town Trustees’ lawsuit, I made it my job to learn everything I could about these archaic governmental entities. I applied my typical “scorched earth” research process and read every case that had ever been decided regarding town trustees. What I found was that the Legislature of the State of New York had enacted legislation in 1818 that drastically curtailed the powers of the Southampton Town Trustees on ocean beaches. Furthermore, the limits of the Trustees powers to regulate ocean beaches had, in fact, been previously litigated in 1900, all the way to the Court of Appeals (the highest court in the State of New York — equivalent, for state purposes, to the U.S. Supreme Court). The Court of Appeals had held that the Trustees’ powers on ocean beaches since the 1818 Act were extremely limited, and related only to the regulation of seaweed gathering and fishing. In more recent years, however, the Trustees had run amok, acting as if their powers on ocean beaches were virtually unlimited, even within incorporated villages, and requiring that property owners who engaged in almost any activity on ocean beaches and dunes get a permit from them.
I won these cases by carefully explaining to the Court the history of the Trustees and the radical reduction of their regulatory powers by the State Legislature in 1818. The Trustees fought hard, even trying to appeal to the Court of Appeals in Albany (which rejected the case), but in the end the clarity and power of the legal precedent that I presented won the day. To read my winning briefs in Semlear v. Incorporated Village of Quogue, click here. To read press articles about this litigation, click here. Because of the decision in Semlear v. Quogue, many of the Trustee regulations regarding ocean beaches in the Town of Southampton (from Eastport to Sagaponack) are now legally suspect.
The Southampton Town Trustees are not the only municipal agency that enacts ultra vires regulations. In 2012, I was part of a team that won a decision determining that the Village of Sagaponack’s Coastal Erosion Law was invalid because it was beyond the powers delegated by the State to the Village. For a news article regarding this victory, click here. This judicial decision forced Sagaponack and the Town of Southampton to change their coastal erosion legislation to bring them in line with State requirements.
My long experience in litigating disputes with municipalities demonstrates that governmental agencies on the East End cannot always be counted on to regulate within their legitimate powers, particularly when it comes to waterfront properties. If you are involved in a dispute regarding the use or development of waterfront property, or if you question whether a local governmental entity is exceeding its lawful authority, I invite you to contact me to determine whether my winning litigation experience can be of help to you.