Suit Filed To Remove West End Dunes
A Neponsit man whose case was dismissed in State Supreme Court in March of last year, has filed once again in that court seeking to have the dunes between Beach 138 Street and Beach 142 Street removed by the city’s Department of Parks and Recreation.
James Agoglia, who was one of the plaintiffs on the original 2006 lawsuit brought against city and state agencies for putting the dunes in place, now seeks a judgment under Article 78 of the Civil Practices and Rules. A win for Agoglia would force the city to remove the dunes that they put in place nearly 13 years ago.
While several locals were involved with the original lawsuit, only Agoglia is pursing the issue to the State Supreme Court once again.
He argues that the dunes should be removed because they are “illegal and a nuisance.”
“The dunes have overtaken the beach, depriving neighbors of the use of beach space, and creating hazardous conditions due to the dilapidated fences surrounding the dunes, as well as having attracted garbage and vermin to the area,” the present appeal argues.
Agoglia cites a letter from the then Parks Commissioner Henry Stern, stating that the dunes were “an experiment,” and that the city would speak with locals before the dunes became permanent.
Agoglia argues that those public hearings were never held.
In March of last year, a New York State Supreme Court Justice threw out the 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.
“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 the 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.
Attorneys for the New York Law Department cheered 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.
Reacting last year to the decision throwing out the lawsuit, Agoglia told The Wave 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.”
Agoglia now has changed his mind and decided to challenge the dunes once again.
“We’re back, Agoglia said last week. “I have reinstituted the case and this time, I expect to win.”