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07/28/2020 12:00 AMYears of conflicts and a month of protest are now joined by a civil lawsuit filed against the owner of the property abutting Old Saybrook’s Town Beach who has fenced off—illegally, according to the town and state—a portion of the public beach.
The beach adjacent to the house, at 99 Plum Bank Road, has been the site of peaceful protests throughout July by beachgoers who say that, for as long as they can remember, the owners have been aggressive in demanding the removal of people on the beach in front of the house.
On July 21, Old Saybrook native Bart Gullong filed a complaint against Carol McCurdy, the owner of 99 Plum Bank Road, and her husband, Bruce McCurdy. The complaint alleges illegal interference with the public right of access to and from Old Saybrook Town Beach and seeks damages in the amount of $2,500 or more as well as a permanent injunction to prevent the McCurdys from maintaining the present fence or installing a new one on public land.
The plaintiffs were served with the complaint on July 19. The case has been filed in the Middlesex Judicial District of the Connecticut Superior Court.
Gullong alleges in his complaint that the defendants installed a fence on the waterward side of the mean high water mark and that it cordons off property belonging to the public trust. By doing so, the defendants have restricted access both to and from Town Beach and to and from the public lands west (on the Long Island Sound side) of their property, he alleges. They have “taken actions which have a chilling effect on the rights of the public...to the Old Saybrook Town Beach and to the public trust lands to the west of 99 Plum Beach Road,” according to the complaint.
The argument in the complaint did not originate with him, Gullong said in a phone interview, but with the state’s Department of Energy & Environmental Protection (DEEP). The state agency sent a letter to Carol McCurdy dated July 8 stating that the fence erected on the beach “is anticipated to be located waterward of the Coastal Jurisdiction Line (CJL) and potentially waterward of Mean High Water (MHW) blocking public access to Town Beach. Such activity appears to have been conducted without authorization required pursuant to the Connecticut General Statutes (“CGS”) section 22a-361.”
Differing Definitions
There is much confusion as to the differences between and applications of CJL and MHW. According to Adapt CT, “[t]wo separate types of boundaries exist at the shoreline: the MHW mark, which divides private coastal property from public trust lands, and the CJL, which determines if a permit is needed for work within tidal waters.” Adapt CT is a partnership of the Connecticut Sea Grant Program and the Center for Land Use Education and Research at UConn.
“The CJL is about construction,” Gullong said. “It’s about the place at which the DEEP gets involved in construction. If you want to build a dock, then the CJL becomes important. As concerns property, it’s the MHW” that determines where the property line ends.
The fence is an erected structure, which is why DEEP is applying the CJL standard. If the fence extends beyond the CJL, it was erected without proper authorization, according to DEEP’s July 8 letter.
“Any work...waterward of the state’s CJL...without proper authorization is a violation of state law and is subject to enforcement actions by the DEEP and the Office of the Attorney General,” the letter warned.
“The CJL is always landward of the MHW,” said Kevin Zawoy, an environmental analyst at DEEP’s Land and Water Resources Division.
The letter presents McCurdy with “two options,” Zawoy said by email earlier this month. Remove the fence or “submit a recent site survey which shows the MHW and CJL.” A compliance statement indicating which of the two actions McCurdy plans to take was due by July 15.
“If they fail to comply...[a] state surveyor and I will survey the property,” Zawoy continued. “If the fence is waterward of the CJL, based upon the survey I can issue a unilateral order from the [DEEP] commissioner which requires the removal of the fence. This is an order of the commissioner and will go on their land records.
“Having an order on the land records is significant,” he explained. “[I]t can prevent the sale or even refinancing of a property. I have other enforcement tools—they just all take a lot of time and work.”
Fearing that this process could extend past the summer season, Gullong worked with his lawyer to present his case in court.
“In part, why we did this is because the DEEP has to move according to its procedures,” he said.
Records on File
According to First Selectman Carl Fortuna, Bruce McCurdy visited the town’s Parks & Recreation department on July 8, telling staff there that he has a recent survey that proves the beach is part of his wife’s property.
Bruce McCurdy explained to Harbor News by phone that the survey in question was produced around five years ago.
“I paid for a Connecticut land surveyor and that survey was given to the town,” he said.
The Planning Office confirmed that it has a survey of the property on file.
“We’re having the survey updated to show the fence is on our property,” McCurdy said.
According to Gullong, beachgoers have recently seen a surveyor on the beach near the house.
Of Gullong’s lawsuit, McCurdy said “the complaint is groundless.” Asked if the McCurdys had responded to DEEP, he said, “I have not.”
But Harbor News has seen an email sent by Bruce McCurdy to Zawoy on or before the July 15 deadline for submission of the compliance statement. In it, he references their “discussion on Monday morning,” presumably referring to Monday, July 13.
“I think that the only point on which we now disagree is whether or not the CJL may have moved since the last survey of our property,” McCurdy told Zawoy in his email.
In his conversation with Harbor News, McCurdy said that the only part of the fence that extended beyond his wife’s property has been moved—that’s the part that abutted the town jetty.
Photographs taken by Saybrook resident Natasha Simes-Vandersloot on July 22 confirm that the fence has been moved away from the jetty in compliance with the town’s request.
As for DEEP’s concerns that the fence appears to cross the CJL and thus is unauthorized, McCurdy said the agency is wrong.
“[W]e have to apparently show them that they’re wrong by their own information,” he said. “Their own website will prove them wrong.
“The website’s a bit confusing but it does state what the rules are,” he continued. “There is something called the CJL. There is a rule that says you’re not allowed to violate that or cross that without a permit. The fence in question has never crossed that—ergo, no permit has been required.”
McCurdy said that because the CJL is calculated using the North American Vertical Datum of 1988 (NAVD88), and NAVD88 is still in effect, the CJL cannot have changed since his last survey of the property in 2015.
The NAVD88, which was adopted in 1991, establishes “vertical control datum,” which is “a surface of zero elevation to which heights of various points are referenced,” according to the National Oceanic and Atmospheric Administration. The NAVD88 standard pertains to Canada, Mexico, and the United States, with some exceptions.
In a July 27 telephone conversation with Harbor News/Zip06.com, Zawoy said that McCurdy's interpretion of the law is not correct and that he has had multiple telephone conversations with McCurdy about this.
"I've had to him to explain to him that that is not the way [DEEP] nor the court system has interpreted the statutes," Zawoy said.
The Structures, Dredging, and Fill Act [Connecticut General Statutes 22a-361] specifies certain "activities" that can be regulated by DEEP if they take place waterward of the CJL, Zawoy explained. Those activities, which include erecting a fence, require an application to the DEEP for a certificate or permit in advance.
McCurdy's claims that the standards haven't changed since his most recent survey was conducted in 2015 are not correct because DEEP uses MHW to determine the CJL, according to Zawoy.
"Yes, the numbers are the same," Zawoy said, but the land changes and some of those changes occur because of sea level rise.
When someone is "developing a project or when constructing something along the shoreline, they need an updated survey" conducted within a year of that activity, he explained. In this case, the owners erected a fence based on a survey that was five years old.
"Within that five-year period," said Zawoy, "the land under which the tide exists has significantly changed, thereby altering the CJL."
Zawoy is aware that McCurdy is conducting a new survey, but if it's not completed by the July 30 deadline, "we're just going to have to do it ourselves," he said.
“McCurdy is trying to intersperse or mix the high water mark with the CJL,” Gullong said. “He’s trying to stall until the end of the” summer in order to fend off DEEP enforcement. “It’s just not going to happen. We’re going to press on this. If the end of the [season] comes and we haven’t been successful, that’s okay. We’ll keep going.
“[F]or years and years [McCurdy] has put up a fence or put up signs that said or implied that” the family owns the beach adjacent to their house, said Gullong.
McCurdy acknowledged that the current fence is by no means the first his family has erected on the property and claimed that the purpose of the fence was to fight erosion, not to keep people out.
Yet he maintained that even those who sit on the beach below the fence are trespassing on the family’s property. Adjacent to the jetty, the property line extends around 75 feet from the seawall, whereas near the steps leading from the house down to the beach, the property line extends roughly 35 feet, he said.
“It’s not a square property,” he said.
As for yelling at those who cross or sit on the beach, McCurdy denied only yelling at those crossing it.
“To the best of my knowledge no one has ever been yelled at for crossing,” he said. “That’s to the best of my knowledge. I can certainly say that I have never yelled at anybody for crossing.
He said sitting on the beach is a different matter.
He justified yelling at those sitting on the beach “Because it’s private property. Which will be shown,” he said. “Which is shown on the registered survey stamped by a licensed surveyor of the State of Connecticut, which is my property, our property.
“I put a fence at what amounts to current high water to try to get the sand to come back down toward mean high water,” he said. “And everybody gets fussed because they don’t understand...There are rules, regulations, etc. and it’s very important in cases that are far bigger than ours—hotels and large properties.
“I just want to follow the rules. I’m being attacked for something that is not in violation of the rules,” he said.
The issue of beach access has been important to Gullong since he was a little boy and was yelled at for walking along the beach by a man he believes to be one of Carol McCurdy’s forbears.
Gullong, who recently sold his Cornfield Point house and moved to Waterford, said he has lived in Saybrook “off and on all my life.
“My grandfather built one of the first cottages on Cornfield Point in the early 1900s,” he said.
“I want to bring this issue to the fore and I want to do this as a service to the normal people, the people that don’t have a cottage, the people who aren’t in a position to buy [one], who live a day’s trip to the water and want to ‘go down the shore,’ as they say,” he said.
“You can restrict access to” the beach, he continued. “You can restrict parking. But once people get out there, you can’t restrict them.”
The owners of 99 Plum Bank Road have “made the life of the kids who are at town beach miserable,” he said. “It’s time that ends.”
Editor's note: This story has been updated to include expanded information from Kevin Zawoy, an environmental analyst at DEEP's Land and Water Resources Division.