2009-04-17 / Front Page

Court Dismisses 2006 'Illegal Dunes' Lawsuit

By Howard Schwach

A New York State Supreme Court Justice has thrown out a 2006 lawsuit brought by a group of Belle Harbor residents against the City's Department of Parks and Recreation and Department of Environmental Protection charging that the two agencies illegally allowed dunes to be placed on their beachfront.

In May of 2007, Agoglia led a group of residents to Rockaway's beach opening and was able to persuade representatives from Parks and the Mayor's Office as well as local elected officials to tour the dune area after the ceremony.
"It is well settled that, in order for the petitioners to prevail in this action [they] must assert that they live within close proximity to the sand dunes, that they suffer some harm which is different than the harm suffered by the general public and that the alleged injury falls within the zone of interest sought to be protected or promoted by the statute under which the governmental action was taken," said Justice Janice Taylor in her March 13 decision.

Taylor ruled that the plaintiffs had no standing to sue and that they missed the statute of limitations.

"The petitioners have failed to prove that they have standing to continue this action. Accordingly, the petition is dismissed," she wrote.

The lawsuit, which targeted a series of dunes that stretch from Beach 138 to Beach 142 Street, was filed in September of 2006 in state Supreme Court in Queens.

It alleged that Parks built the dunes in 1997 at the request of seven beachfront homeowners who also funded the project — without a permit and without consulting the public first.

The residents who brought the suit, James Agoglia, Carol Ellis, Arlene Jordan, Philip Kelly, Edward Murray and Robert Tyne, say they sued on behalf of all Belle Harbor residents and beachgoers at large because the dunes, in time, have grown in size and now limit beach access and pose a threat to human health.

The dunes make it nearly impossible for residents — especially those who are elderly, handicapped or pregnant — to access the beach, the suit charges.

"Not only do the dunes deprive the local residents, and all New York City residents, of the use and enjoyment of a designated public space, but the dunes have become a safety issue," the suit reads.

The dunes are blamed for restricting emergency vehicle access, creating a place for underage drinking and attracting insects and wild animals. Wood and wire fencing used to keep people off the dunes is almost completely buried in some sections and creates a tripping hazard, the suit says.

One complaint outlined in the lawsuit makes the point that the dunes take away from the useable portion of the beach but also have the unintended effect of highlighting the dunes' value as a natural barrier. "At high tide, the water comes up to the edge of the dunes ... and there is no or very little beach for public use during high tide," it says.

Ignoring the substantive issue of whether dunes harm beachgoers and homeowners, the city fought the case along procedural grounds and won.

Attorneys for the New York Law Department praised the decision.

"We are pleased with the decision," said Haley Stein, an assistant corporation counsel in the environmental law department. "The decision supports the ability of the Parks Department to support and maintain the beaches not only for Belle Harbor residents, but for the entire Rockaway community."

"The Parks Department has to have the ability to make calls about how to use the beaches and what is best in maintaining them," she added.

She emphasized that the procedural points were most important in winning the case.

The dunes were built in 1997 and the suit was brought in 2006, she said, adding that the judge found that the suit was not timely. She added that if the plaintiffs were injured by the construction of the dunes, they were no more injured than any citizen in Belle Harbor, and therefore had no standing to sue.

Reacting to the decision throwing out the lawsuit, Agoglia told The Wave on Monday that the suit is now "water under the bridge" as far as he's concerned.

"The judge just let the case sit too long, and nobody cared," he said. "There were supposed to be dunes the length of the beach and now we have them only on our five blocks. It is what it is."

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