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DEEP to allow homeowner to put beach-obstructing fence on state-built groin

I should say right up front here that I am not a lawyer nor a land surveyor, and I have no professional expertise in either field.

I have been around long enough, though, to know that when you get into a property dispute with a neighbor who comes at you with a fresh survey and an aggressive lawyer, it's time to have your own survey conducted.

Unfortunately, that obvious wisdom has seemed to escape some high-ranking decision-makers at the state Department of Energy and Environmental Protection, who say they have agreed to let the owner of a new 5,900-square-foot mansion next to Seaside State Park in Waterford keep a fence on a state-built groin — a stone structure perpendicular to the shore — that reaches into Long Island Sound.

One fence generated complaints over the summer to DEEP from members of the public who say it has impeded their ability to walk freely from the beach area at the state park to the beach in front of the home of David Mortimer of Shore Road. A prominent no trespassing sign on the fence warns: "POLICE TAKE NOTICE."

In its first pass at the issue, DEEP smartly issued Mortimer a notice of noncompliance and ordered him to move the fence 6 feet and take down the no trespassing sign.

Then Mortimer's lawyer, Drzislav "Dado" Coric, and his surveyor entered the picture. The latest deal proposed by the surveyor and lawyer will be accepted, according to a DEEP spokesman, and a new fence will move very little from the location of the one that led to public complaints.

A state surveyor reviewed what was submitted by Mortimer, according to the DEEP spokesman. But the state has not conducted its own survey, which strikes me as incredible, given the enormity of what's at stake: the public's right to pass freely along the tide line of state beaches.

It seems the Mortimer proposal would create precedent for any similar situation where a beach groin exists.

How in the world can a stone groin built by the state decades ago, to minimize sand migrating across the public beach, be considered part of Mortimer's property?

Even more outrageous to me is that the Mortimer survey shows the mean high water mark — the average of high tides over time, a line generally marking the boundary between public and private property — extending far out on the stone groin.

Can you really measure high tide on a manmade structure? Couldn't you then claim a dock as your own property in the same way?

Is it possible, as the survey suggests, that Mortimer's property extends well out into Long Island Sound just because that state-built groin has a high tide line?

When I raised these issues with Kevin Zawoy, the DEEP senior environmental analyst who prepared the initial notice of noncompliance issued to Mortimer, based on the line of seaweed left on the sand in front of his house, he agreed the Mortimer survey raised complicated issues and suggested the state might need to conduct its own survey, maybe done by someone other than the state surveyor who signed off on the Mortimer interpretation.

It was Zawoy who told me the groin was built by the state decades ago.

He told me he would talk to his boss, Brian Thompson, DEEP director of Land and Water Resources Division of the Bureau of Water Protection and Reuse, to discuss the offer by Mortimer.

He said he would get back to me. I never spoke to him again.

Instead I got an email from the DEEP spokesman saying all further communication about the Mortimer matter was to go through him. In a subsequent email, he said DEEP was accepting the results of the Mortimer survey.

I heard from attorney Coric when I left messages for Mortimer, and in our only conversation he shouted and interrupted me so often, I had to end the call. He subsequently sent me a letter and a copy of one he had sent to DEEP, arguing the fence is not below mean high water and that his client has a constitutional right to mark and protect his property.

Again, I am not a lawyer, but Mortimer's own attorney noted in his letter to DEEP that the law empowers town selectmen to remove "all obstructions and structures from the shores, beaches or other land in such town ... Which the public has been accustomed to use, occupy or enjoy."

Maybe Mortimer is right, and he owns enough of that state-built beach groin to erect a fence on it. But I doubt it, and the state needs to do more than accept the interpretation of the landowner's surveyor and lawyer and do its own research. And if the conclusion is that Mortimer can indeed legally fence off an area long open to beach walkers, DEEP needs to provide answers as to how that can happen, with its own survey and legal opinion, not just issue a statement saying the agency is siding with a beachfront homeowner and not the members of the public who complained.

I hope those concerned citizens keep complaining. I would start with the legislators who represent Waterford as well as the town selectmen, whom attorney Coric notes have power here.

The selectmen and lawmakers are every bit as responsible as DEEP for explaining how a private fence can be erected on a state-built groin, below a tide line on a sandy beach marked by seaweed. Not only does the existing fence block some access to the beach, it is located at the bottom of some concrete steps that make it safer to pass over the groin.

The public is reasonably frustrated by the new obstruction to its rightful access to a beach long available to walkers.

This is the opinion of David Collins.

d.collins@theday.com




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