The Day – Black Point lawsuit highlights gray area between land and Long Island Sound

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East Lyme – A waterfront property owner wants to know who is responsible for a gaping hole in the gray area between his seawall and the Long Island Sound.

Richard Willard said the deterioration of the concrete on the “scour wall” – which slopes to prevent wave action from undermining the seawall behind – is a hazard to those walking on the structure. An area below his property is collapsing into a sinkhole approximately 5 feet wide by 5 feet deep which he unsuccessfully attempted to mark with danger signs and seal off with a cinder block wall.

The big question now revolves around who is responsible for the wall and who is responsible if someone gets hurt. Is it the owner? The beach association? The State Department of Energy and Environmental Protection?

“I’m still kind of in no man’s land,” Willard said. “Looks like no one wants to take responsibility. I’ll fix it, but you have to let me know it’s my property.”

The situation is reminiscent of other jurisdictional issues in the troubled strip of coastline between landowners, beach associations, local governments and the state that are becoming all the more common as the effects of global warming hit coastal infrastructure.

The reason people use the scour wall as a walkway is because it sits at the bottom of a staircase maintained by the Black Point Beach Club Association as a public access point. This is where members can descend to a rocky outcrop from where families like to go crabbing, collecting seashells or launching their kayaks, according to Willard.

But the beach association currently only claims jurisdiction in the area of ​​its right of way near the stairs. The remainder of the scour wall extends either side in front of Willard, who owns a house at 6 East Shore Road, and another owner at 10 East Shore Road. The two owners filed a complaint against the association for non-maintenance of the expanse.

Willard’s lawsuit alleges that the deterioration of the scour wall no longer protects homeowners’ levees as it is supposed to and lowers property values.

Property manager Jim Moffett said Friday the association was not responsible for the scour wall other than the area within the right-of-way. He indicated that the State Department of Energy and Environmental Protection was the regulatory authority in this particular area.

“Everyone is responsible up to their dike, but below the dike is under DEEP’s jurisdiction, so you’ll need to get their permission if you want to do anything there,” Moffett said.

He said the city has 10 rights of way that give the public access to the Sound and a place to sit, some of which include stairs that lead down to the water. The right-of-way at the end of Bellaire Road is one of them. But Moffett said the association’s jurisdiction does not extend to the front of the Willard Seawall.

“The thing is, it’s not our property,” Moffett said.

DEEP regulates all activities conducted in tidal wetlands and in tidal, coastal or navigable state waters, according to agency spokesman Will Healey. Its jurisdiction extends to the highest predicted tide, which at East Lyme is 2.3 feet. Any activity above this altitude requires authorization from DEEP.

But this does not mean that the agency pays for the maintenance.

“While DEEP maintains some coastal infrastructure that it directly owns, we don’t have a general obligation to maintain coastal structures,” Healey said.

Neither Moffett nor Willard knew who originally built the wall.

Moffett said he was contacted by DEEP about the unauthorized cinder block wall Willard erected to keep people out of the continually deteriorating hole in front of his property. The agency planned to issue a cease and desist order, according to the property manager.

Healey said the agency is investigating a complaint about it and could not comment further on possible enforcement actions. He also did not comment on the trial.

Willard said the association took a different stance on ownership of the structure when it wanted to install stairs from the scour wall to the water in 2019. The association’s board of governors in May this year denied his request to install the stairs, according to the meeting minutes.

An email from a board member to Willard’s engineer, provided by Willard, said the association does not allow homeowners to install stairs that cross association property and are used only for individual purposes.

Middletown attorney Brian Dumeer, who represents Willard, said he commissioned a title search which shows the association took possession of land, including areas described as “reserved beach”, in the years 1930. The area in question appears as a reserved beach on land records, according to Dumeer.

He said the association’s failure to address the concerns and findings of its clients prompted the lawsuit in November 2020.

The defendants claim that the scour wall does not belong to them, according to the association’s legal documents.

To address jurisdictional issues, a Superior Court judge last month ordered plaintiffs to bring in DEEP as another defendant in the case to determine its interest in the case.

According to police call summaries, Willard brought police to the property three times last year to report Moffett for removing his signs on both the association’s right-of-way and in front of its seawall. Moffett, in one account, told police the unsightly sign prompted complaints from members.

Moffett said he started removing the panels because they were blocking the stairs.

A photo provided by Moffett showed one of the signs installed on the scour wall at the bottom of the steps. It consisted of two large stakes anchored to buckets with caution tape wrapped around them and a No Trespassing sign affixed to them.

Police declined to pursue any of the complaints because they were all part of a civil matter, according to the summaries.

Moffett recognized cracks and holes in the area of ​​the scour wall in front of the association’s right-of-way. “We had to close gaps so that no one got hurt,” he said. “We take care of our own.”

Minutes from last month’s special meeting of the association’s board of governors show that members met behind closed doors in an executive session to discuss emergency repairs to the right-of-way on Bellaire Road. After resuming the public portion of the meeting, they authorized up to $10,000 in emergency repairs to the seawall there.

Board chair Janet Bonelli said she could not comment on ongoing litigation. She also declined to specify details of the emergency repairs – including the nature and location of the repair approved – as the court case is ongoing.

Willard said he believes the association has been fighting his case for two years because of the precedent it would set if officials were to concede.

The association is empowered by state law to operate as a mini-municipality responsible for things like maintaining public beaches, roads, and flood and erosion control systems.

Association members pay a tax rate of 1.73 mills in addition to East Lyme taxes. A mill costs $1 in tax per $1,000 of assessed property value. According to the Black Point mill rate, the taxes paid on a home valued at $250,000 would be $432.50 per year. The same owner pays $7,128 in taxes to the city.

“I think what’s going to happen is anybody who’s got this type of situation is going to go after Black Point and say ‘you gotta keep it going,'” Willard said. “It’s no different from a clubhouse, it’s no different from a pier.”

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