Old Lyme — Kathleen Tracy, whose Hartford Avenue cottage is a stone's throw from Sound View Beach, has taken the first step to legally challenge a fence and fee program that the neighboring Miami Beach Association instituted this summer.

Last fall, the Miami Beach Association erected a fence between what its leaders say is the boundary between Sound View beach, which is a public beach, and what they say is their private beach. The association has hired security staff and is charging a $10 "clean beach fee" to members of the public who want to spread their towels on Miami Beach sands.

Tracy, a retired school principal who maintains the fence is illegal and divisive, retained attorney William W. McCoy and filed a motion to intervene in a 1953 case in which a Superior Court judge issued an injunction prohibiting Miami beach representatives from interfering with the rights of the public to "free entry and egress and free unimpeded use and enjoyment" of the entire length and width of both beaches. Judge Thomas E. Troland had ordered the Miami Beach Association members of 64 years ago to remove its fence or pay a fine of $5,000.

Standing in the doorway of her cottage Monday morning as beachgoers walked by on foot with their towels and bags, Tracy said she did not want to comment on the legal filing and would leave it up to the court to decide.  Mark Mongillo, president of the Miami Beach Association, could not be reached to comment.

New London Superior Court staff will be retrieving the case file in the 1953 case, called "Rose Vitello et. al., v. Nunzio Corsino and Miami Beach Association" from the state library, where it is being stored, and will schedule a hearing before a judge once the Miami Beach Association has been served with a notice of the legal filing, according to David S. Gage, chief clerk of the New London Judicial District.

Because all of the original plaintiffs appear to be deceased or cannot be located, Tracy is seeking to join the lawsuit as a plaintiff "to enforce this court's orders and the sanction on the defendant, Miami Beach Associaton, for its current and continuing violations of the orders in this matter," according to the motion filed by McCoy on Aug. 8. 

The area's original developer, Harry Hillard, deeded the beach to the "unorganized general public" in the 1880s, according to legal documents. Tracy and others say a concrete walkway in front of the homes along Miami Beach was known as "Long Island Avenue," and that land records indicate anything in front of it is public beach.

Earlier this summer, Mongillo, the Miami Beach Association president, said that over the past few years, some beachgoers have become increasingly disrespectful, cutting through private properties, sitting on homeowners' patios and taking their furniture and putting it on the beach. Also, he said, beachgoers have had sex on the beach and have left behind everything from pizza boxes to dirty diapers and dog feces.

He said the association had done its homework and was confident that the Clean Beach Pass program would stand up to a legal challenge. He said the past efforts by Miami Beach failed because the association attempted to totally restrict access to the beach.

In 1988 or 1989, the association had put up another fence, and the town promptly removed it.  But town officials now say it would be up to members of the public to challenge the fence, just as they did in the 1950s.

First Selectwoman Bonnie Reemsnyder said the town has concerns about the fence, but its attorneys have advised the town against taking legal action.

"The Miami Beach Association feels they have the right to do that. From my reading of the decision in 1953, the injunction was to provide free and unimpeded access to that beach. To me that's clear."

Meanwhile, as summer winds down, Reemsndyer said the town continues to pay overtime to state troopers to help maintain order at Sound View, particularly on weekends when the beach and its two beachfront bars are more crowded. The town's five active police officers — a sixth is out on disability — could not cover all of the shifts, she said. The town also employs a staff of rangers to help patrol the beaches, but their authority is limited.

k.florin@theday.com