Old Lyme — The Miami Beach Association is continuing its fight to keep in place a black chain-link fence it erected next to Sound View Beach.

A judge earlier this year ordered the fence to come down, but it will continue to legally stand for the foreseeable future while an appeal to that order is pending.

The beach association may not, however, continue to charge non-Miami Beach members to use its beach this summer, after a judge also recently decided that doing so while the case is on appeal would impede the “general unorganized public” from using the beach the way it was deeded in the late 1800s.

"The defendant’s claims about a clean beach fail to tip the scales of equity when considered against the plaintiffs and the public’s interest,” New London Superior Court Judge Kimberly A. Knox wrote in the May 17 order to a motion the Beach Association made arguing to keep its fence and Clean Beach Pass Program in place while the case is on appeal.

Since the summer of 2017, the clean beach fee has required non-Miami Beach residents to pay between $5 and $10 to sit on the beach's 800-foot stretch of sand, allowing the association to collect fees that its members testified last summer are needed to keep the beach clean.  

Kathleen Tracy, a Sound View resident, brought the initial lawsuit against the association in 2018, arguing the fence and fees hindered public use of Miami Beach from the way it was deeded in the late 1800s by Harry J. Hillard, who once owned the land.

The Miami Beach Association, founded in 1949 and composed of more than 250 households, owns Miami Beach and describes it as "one of the largest (and nicest) privately owned beaches open to the public in the State of Connecticut."

Association members argued last summer that Miami Beach was their private beach maintained by members of the association much like a road the group also owns. The public may cross the beach, Attorney Kenneth R. Slater Jr. said, but laying towels on it was rather a privilege, and not a right.

In January, Knox ruled in a 17-page memorandum of decision that Miami Beach is to remain open to the public and ordered the association to take down the fence, writing that nothing has changed since 1953, when a judge heard the same issue and issued an injunction prohibiting fences and making the entire length of Sound View and Miami beaches open to the public. 

Miami Beach members had erected a fence in that case also, and Knox said the only distinction between the 1953 case and the current action is the association's "recent additional restriction on access by imposition of fees."

With the judge’s new May 17 order, association Vice President Dan Montano said his association would not continue to charge non-members using Miami Beach this summer. Prior to the judge's order, however, both Montano and First Selectman Tim Griswold said the beach association had intended to keep charging nonresidents a clean beach fee this summer to help the association manage beach cleanliness throughout the summer.

Neither association President Gary Fox nor attorney Slater, who has represented the Miami Beach Association throughout the lawsuit, returned calls to The Day last week, nor did Federation of the Old Lyme Beaches President Scott Boulanger.

Montano, describing last week what beach management would look like this summer amid the COVID-19 pandemic, said that besides having four security guards on duty during the weekends, the association planned to cap the number of visitors allowed on the beach, similar to how the town is handling its beaches. 

Griswold has stated that in an effort to keep its beach numbers low as part of safety precautions amid the pandemic, the town would allow only around 70 people onto Sound View Beach at the end of Hartford Avenue and about an additional 30 people at the end of Swan Avenue.

Montano said based on the same calculation the town used, the association would allow around 635 people on its 800-foot beach at any given time.

But while town beaches will be open to both residents and non-residents on a first-come, first-served basis, Montano and Griswold told The Day last week that Miami Beach plans to reserve a percentage of its 635-person capacity for association members in an effort to ensure members can use the beach as much as possible.

Both said they were not clear on what the exact percentage will be, but Montano estimated 75% to 80%, or around 500 people, of the 635-person capacity would be reserved for association members. Security guards with clickers will check IDs and count the number of residents and nonresidents coming onto the beach, Montano said. When guards deem the beach has reached its nonmember capacity, or about 135 people, guards will then turn nonmembers away.

Montano said the decision to reserve 75% to 80% of the 635-person capacity was based on “historical percentages” tallied last summer of how many association members and nonmembers used the beach at any given time. He reasoned it was “the fairest solution” because he said Miami Beach Association members pay large amounts of money each year to both secure and clean Miami Beach, despite receiving $20,000 annually from the town to help with both security and cleaning costs.

Montano said the $20,000 given to the association by the town barely covers security costs and that association members must front the rest to maintain the beach.

As an example, he said the beach association paid to cut and remove a “very large” tree that had washed up on the Miami Beach this past winter, which he said was very costly.

“If you have a house here that you pay for — we are already paying association fees and town property taxes — yeah, you want to be able to use your beach,” Montano said. “We are not trying to keep anybody out, but we can’t let the world in because then we would have to sit in our front yards and can’t use the beach we are paying to maintain.”

m.biekert@theday.com