Old Lyme ― The state Appellate Court will reconsider a recent decision upholding the public’s right to roughly 800 feet of sand between the Miami Beach Association’s beachfront patios and the Long Island Sound.

A three-judge panel last month ruled that the trial court judge acted appropriately to “protect the integrity” of a 69-year-old decision involving the same issues brought by Sound View Beach resident Kathleen Tracy in 2018. The court in the 1953 case determined the land was dedicated for public use and that a fence erected around it needed to be taken down.

The attorneys for the association in their motion for reconsideration said the judges ignored one of the association’s foundational arguments: that the beach was deeded to the public by developer Harry Hilliard as a pass-through only.

The Halloran & Sage lawyers said the judges’ decision makes it seem like the public has “carte blanche” to use the beach even though the 1953 precedent described the right as being for “foot passengers and bicycles only.”

The beach association took the case to the appellate court after New London Superior Court Judge Kimberly A. Knox in 2020 issued a ruling requiring it to take down the fence it had erected at the end of the 2016 beach season and to stop charging people a "clean beach fee” of $5 to $10.

Tracy’s attorney, William E. McCoy of Heller, Heller & McCoy, filed an objection to the reconsideration motion. He argued the judges acknowledged but rejected the idea that the public’s right to the beach was limited to walking or biking through it. He pointed to the part of the decision stating the beach has been “continuously used and enjoyed” by the wider community since it was deeded to what the developer called “the unorganized general public” in the 1880s.

The association’s attorneys also called for reconsideration on the grounds that the appellate court’s decision was based on a legal principle not discussed during the trial, which means the parties didn’t have a chance to argue it.

But Heller countered the decision wasn’t based on the principle cited by the defendants. Instead, he said it was part of a larger principle discussed at length by all parties that a matter already decided can’t be litigated again.

The appellate panel on Tuesday agreed to reconsider the two points raised in the association’s motion. The parties have until Jan. 3 to file arguments no longer than 10 pages.

e.regan@theday.com