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Black Point lawsuit underscores gray area between land and Long Island Sound

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East Lyme — A waterfront homeowner wants to know who's responsible for a gaping hole in the gray area between his seawall and the Long Island Sound.

Richard Willard said deteriorating concrete on the "scour wall" — which slopes to prevent wave action from undermining the seawall behind it — is a hazard for those who walk on the structure. One area below his property is crumbling into a roughly 5-feet-wide by 5-feet-deep chasm that he has tried without success to mark with danger signs and cordon off with a cinder block wall.

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

"I'm still kind of in no man's land," Willard said. "It seems like nobody wants to take responsibility. I'll fix it, but you have to let me know this is my property."

The situation is reminiscent of other jurisdictional issues in the murky shoreline area among property owners, beach associations, local governments and the state that are becoming all the more common as the effects of global warming batter coastal infrastructure.

The reason people use the scour wall as a walkway is because it's at the bottom of a set of stairs maintained by the Black Point Beach Club Association as a public access point. That's where members can descend to a rocky outcropping from which families like to go crabbing, collect shells or launch their kayaks, according to Willard.

But the beach association currently claims jurisdiction only in the area of its right of way near the stairs. The rest of the scour wall extends on either side in front of Willard, who owns a house at 6 East Shore Road, and another property owner at 10 East Shore Road. The two homeowners have filed a lawsuit against the association for not maintaining the expanse.

Willard's lawsuit alleges the deteriorating scour wall no longer protects the homeowners' seawalls like it's supposed to and is diminishing property values.

Property manager Jim Moffett on Friday said the association is not responsible for the scour wall other than the area in the right of way. He pointed to the state Department of Energy and Environmental Protection as the regulatory authority over that particular area.

"Everyone's responsible up to their seawall, but below the seawall is under the jurisdiction of DEEP, so you'd have to get permission from them if you wanted to do anything down there," Moffett said.

He said the town has 10 rights of way that give the public access to the Sound and a place to sit, some of which include stairs that go 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 doesn't extend to the front of Willard's seawall.

"The thing is, that's not our property," Moffett said.

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

But that doesn't mean the agency pays for upkeep.

"While DEEP maintains certain coastal infrastructure it directly owns, we do not have a generalized obligation to maintain coastal structures," Healey said.

Neither Moffett nor Willard knew who originally built the wall.

Moffett said he was contacted by DEEP regarding the unpermitted cinder block partition Willard put up to prevent people from crossing the continually deteriorating hole in front of his property. The agency was planning to issue a cease and desist order, according to the property manager.

Healey said the agency is investigating a complaint regarding the matter and cannot comment further on potential enforcement action. He also did not comment on the lawsuit.

Willard said the association had a different stance on ownership of the structure back when he wanted to install stairs going from the scour wall into the water in 2019. The association's Board of Governors in May of that year denied his request to install the stairs, according to meeting minutes.

An email from a board member to Willard's engineer, provided by Willard, said the association does not allow homeowners to install staircases that cross over association property and are used solely for individual benefit.

Middletown-based attorney Brian Dumeer, who represents Willard, said he commissioned a title search that shows the association took ownership of land, including areas described as "reserved beach," in the 1930s. The area in question shows up as reserved beach on land records, according to Dumeer.

He said the association's failure to respond to his clients' concerns and findings prompted the lawsuit in November 2020.

The defendants argue the scour wall does not belong to them, according to legal filings from the association.

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

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

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

A photo provided by Moffett showed one of the signs set up on the scour wall at the bottom of the steps. It consisted of two tall stakes anchored in buckets with caution tape wrapped around them and a No Trespassing sign tacked on.

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

Moffett acknowledged cracks and holes in the area of the scour wall in front of the association's right of way. "We've had to fill gaps so no one would get hurt," he said. "We take care of our own."

Last month's special meeting minutes from the association Board of Governors show members met behind closed doors in executive session to discuss emergency repairs in 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 Chairwoman Janet Bonelli said she could not comment on pending litigation. She also declined to specify any details about the emergency repairs — including the nature and location of the approved fix — because the legal case is ongoing.

Willard said he thinks 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 statute to operate like a mini municipality responsible for things like maintaining public beaches, roads and flood and erosion control systems.

Members of the association are charged a tax rate of 1.73 mills in addition to East Lyme taxes. A mill is $1 tax per $1,000 of assessed property value. Under the Black Point mill rate, taxes paid on a home assessed at $250,000 would be $432.50 per year. The same homeowner pays $7,128 in taxes to the town.

"I think what will happen is that everybody that has this type of situation, they're going to go after Black Point and say 'you need to maintain it,'" Willard said. "It's not different than a clubhouse, it's no different than a jetty."

e.regan@theday.com

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