Adirondack Express

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Saturday, February 04, 2012

Old Forge, NY ,

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Private property is not open to public use

To the Editor:

We are writing to you concerning an action contemplated by the Town of Inlet which, if taken and allowed, will have far reaching effects regarding every waterfront property owner in the area.

At issue is the Town of Inlet’s proposed passage of a resolution declaring that the private property of waterfront owners along the Fifth to Fourth Lake outlet channel is open to public use.

This proposed action should be disturbing to all waterfront property owners for several reasons. First, if passed, it will be an illegal taking of private property without just compensation or due process in violation of the United States and New York State Constitutions. Second, the proposed action is based upon what the Town claims is a right of way that can be found in every title history for every waterfront property in the Towns of Webb and Inlet. Although this claimed right of way is void and unenforceable under New York State Law as shown to the Town in the past, the Town plans to try to enforce it anyway even though it has no standing to do so. Third, the Town is taking the position that all waterfront breakwalls, docks and areas filled in by waterfront property owners along the water to prevent erosion are owned by the State of New York and, therefore, open to public use. That essentially means anyone can use a private property owner’s dock and breakwalls as well as walk on the claimed right of way.

Why is this happening? Historically, with the exception of the waterfront properties deeded to the towns or retained by the State, all of the other waterfront property on the Fulton Chain and the surrounding lakes and ponds (Big Moose, Limekiln, Grey Lake, etc.) is and has been privately owned. This includes the waterfront along the channel between Fifth and Fourth Lake. The gentleman who at one time owned all of this land reserved in each deed a foot path for the public. As previously indicated, the reservation is void under New York State Law. In the mid 1980’s, the Town of Inlet contracted to lease a portion of the private property along the channel for a specific term (10 years) to install a breakwall and a walkway for Town use. Under the terms of the leases, the Town acknowledged the private ownership of the properties, contracted to build the breakwall and walkway, pay the property owners each year for the use of the properties and agreed that at the expiration of said leases, all improvements would become the private property owner’s property. All of the leases have been long expired, yet the Town insists that it now has control over the channel owner’s private property.

What prompted the Town to act now? The Town Council has had several secret meetings over the years on the subject of what it euphemistically calls taking back the “Boardwalk.” In the early part of this decade, the Town spent several thousand dollars to secure a legal opinion which ultimately concluded that the Town had no ownership interest in the “Boardwalk” nor authority to enforce the void “right of way.” Despite the legal opinion, the Town declared at a meeting on July 13, 2010 that, because it received some letters regarding what is essentially a property dispute between neighbors, it was going to take the proposed action based upon an incorrect and false report by a land surveyor and a Supreme Court decision that involves oceanfront beach property in the State of Florida.

When the affected property owners voiced objections, they were told that the Town Supervisor “welcomed” a lawsuit and, further, that the breakwall and wooden walkway was owned by New York State and, therefore, open to the public. When the affected property owners pointed out that the right of way the Town was relying upon was unenforceable, not owned by the Town and void under New York State Law, they were told that the Town disagreed. When advised that this Town position affects every waterfront owner in the Town, the answer was, the Town was only going to force it on the channel property owners. When the affected property owners pointed out that the Town’s position was a violation of their rights, they were told, in essence, that the Town didn’t care. The private property owners are being punished for protecting their property rights.

Why should others care? What stops the Town from one day deciding to declare that this void right of way will be open to the public on other private waterfront property? What stops other Towns from trying to do the same thing when it suits their personal interests?

Shouldn’t the Town uphold the Constitution and the laws that protect its private citizens and not take their property without due process of law and just compensation?

Shouldn’t the Town’s actions and meetings be open and transparent to the public so that those affected can have input instead having something shoved down their throats after the Town has made decisions behind closed doors?

One might ask, what’s the harm? The affected property owners have had property stolen and damaged as well as strangers walking onto their porches and peering into their windows. Although we have all taken steps to secure our properties, the Town government objects to our efforts and that is why it is contemplating punishing us.

What happened to Inlet’s good nature?

Very truly yours,

Donald and Donna Gerace

Inlet

Comments made about this article - 5 Total

Posted By: JMS On: 9/12/2010

Title: Public walkway along the channel

I don't know the Gerace family, so I have no opinion on whether they are or are not, as described in the other comments. Members of my family were, however, waterfront property owners, so I can identify with the concern about property being opened to the public. #1- the property owner pays taxes on the property, doesn't he? #2- what happens when a member of the public suffers injury upon that property? #3- Who 'polices' the area and cleans up after the public leaves? I think that we are all to well aware of the disgraceful manner in which some members of society act! I. also see a dangerous precedent. Please remember the initial actions of the APA on private property owners. Lastly, are there that many members of the public that would use this proposed walkway to justify unrest among neighbors? The way the fickle public is, now days, perhaps it's time to look to the local population's benefit, rather than un-needed projects.

Posted By: On: 7/27/2010

Title: Reply to the Gerace's re their mystery - "What happened to Inlet's good nature?"

The Gerace's conclude their letter asking "What happened to Inlet's good nature?" Yes indeed, what ever did happen? I might offer a suggestion towards reaching an answer. I promise to address this riddle at the end of my comment. First, however, some analagous, interrogatory musings that others might now be expected to submit to editorial staffs at some location. Bernie Maddoff will soon send a lamenting question regarding the lack of safe investments on the market. BP will put pen to paper to query what has happened to the vital waters of the Gulf. And Pigpen will lean on Charlie Brown to join in a campaign on people's poor hygiene. They might all ask, "What happened?" Maybe you have to be directly familiar with the circumstances in Inlet to understand and appreciate these analagous questions. I've been coming to the area for over 40 years. The last time I saw the Gerace's, they were screaming at, and trying to obstruct, people who were trying to assist a boat that had stalled on the channel. This doesn't appear to be an isolated issue with these people. Maybe Inlet has a need to legally RESTORE some balance to the community. But I digress. I said I would attempt to point the Gerace's towards an answer to their question. Mr. & Mrs. Gerace ... I believe your question could best be answered through your consultation with a mirror.

Posted By: Greg Wait On: 7/27/2010

Title: Mr. Gerace, your arrogance or your ignorance is showing. You pick...

Mr. Gerace's letter is laughable for the sheer audacity of the misrepresentations he makes both of the town's position in this matter and in the letter of the law as regards the channel and right of way in question. The town is neither "taking" property nor are they asserting that the "private property of waterfront owners along the Fifth to Fourth Lake outlet channel is open to public use." What they are asserting, and what has been painstakingly researched and documented by their lawyer, is that a public right of way exists along the channel that predates his title to his property, which remains in place today, and which is enforceable by the town for the good of the town and the people who live and visit there. This is not a taking of property, but rather a reasserting of a public right which existed before Mr. Gerace and others along the waterfront sought to take it away from the rest of us.
In this matter, it is the town that is acting in good faith, and Mr. Gerace who seeks to deprive others of rights they have held and should continue to hold. No one's property rights are in danger here. Mr. Gerace--a lawyer who probably knows better and most certainly should--thinks he should have the right to take what is yours, and that the town is wrong in trying to prevent him from doing so. Mr. Gerace is not the victim here; the people who live in and visit Inlet are, and the town leaders are to be lauded for standing up to this bully with a law degree in an effort to take back the rights he has worked to take from you.
Understand this... legally, if Gerace can simply persist in preventing you from using this right of way for a few more years, once he has prevented its use for TEN years, he will have set a legal precedent that will make it virtually impossible for anyone ever to enforce the right of way again. He knows this, and has been taking steps to quietly run the clock out on your right to walk along the channel between the park and South Shore Road. The town is acting now because they understand this too, and do not want him to win simply because no one was willing to stand up to him. They are standing up to him for you. Back them up. Stand up for your rights and don't let Mr. Gerace take them from you.

Posted By: Peter On: 7/23/2010

Title: one persons view

A little one sided aren't we? Aren't there always two sides to every story? From what I understand Mr. Gerace is a cantankerous blow hard that complains about everything. Nothing is ever good enough for him ( a come lately I might add). My advice Mr.Gerace is simply this, if you don't like it, move. I'm sure there would be very little tear shedding when you put your house up for sale, but I'm sure there would be plenty of takers on "your" property.

Posted By: M. Kilcher On: 7/20/2010

Title: Responder

The "heavy hand" of government strikes again. Everyone should be outraged by this, not just those who may be directly affected by this notion. Ahh, you say; how nice it would be to have a walking path along the channel. That's all well and good for you but, where will you stand when the government comes for a piece of your property? Ready to defend your rights, I hope........