A three-year-old dispute over access to Viking Cove ended last week with a settlement stating property owners Michael Wald and Sally Andersen may restrict access to their three-acre, beachfront property.
Resident Fred Einspruch sued Wald and Andersen in state Superior Court in July 2012, asking the court to recognize a public right of use on a section of beachfront owned by the couple.
Einspruch maintained that longtime use of the property by recreationists established a public right to continued use, while Andersen said she didn’t mind allowing others to use the strip of land to access the beach as long as they didn’t leave their vehicles or boats on her land.
The two parties signed a settlement Wednesday, April 8, stating Andersen and Wald “may restrict the uses of their property by users, including restricting parking on Rutzebeck Road.” However, it also stipulates members of the public may “occasionally” access Viking Cove beach across their property for kayak/canoe launching and/or garden seaweed gathering.
“That use, by pedestrians only, can continue so long as the access is only occasional and so long as the access is limited to those uses, and so long as those uses do not unduly block traffic on Rutzebeck Road and so long as they remain in attendance with their vehicles, and so long as the use does not result in waste, damage or injury to the property,” the settlement said. “Any other use must be by express approval of Andersen/Wald.”
It’s unclear what constitutes “occasional,” as there is no definition in the settlement. Andersen and Wald’s attorney Charlie Cole said the definition is “largely discretionary,” meaning it is up to Andersen and Wald.
“In the final analysis the court would decide it, but it’s a matter of common sense,” Cole said.
Andersen said she and Wald would “likely be more permissive” than the settlement stipulates. “It was important for us, however, to be able to control the activities on our own property, which is why we fought this lawsuit.”
Cole said he “positively” considered the settlement a victory for his clients.
In a phone interview, Einspruch said: “I tried to save public access at Viking Cove,” and declined further comment.
Andersen said Einspruch was not just seeking pedestrian access to the beach, but wanted approximately 12 percent of the property to be made public with unlimited parking and other uses.
Cole said Einspruch’s legal team approached him after Judge Phil Pallenberg denied Einspruch’s motion for summary judgment on April 6. A person who applies for summary judgment is attempting to avoid the time and expense of a trial when he or she believes the outcome is obvious.
It took the two parties less than an hour to hammer out the settlement document, Cole said.
Other stipulations of the settlement include users must park their vehicles at the end of Mud Bay Road and must immediately return to their vehicles after using the area to launch their kayak/canoe or gather seaweed.
In the event there is “more than occasional public use,” Andersen can seek immediate injunctive relief from a judge, which would prohibit access.
“The settlement states that we have every right to control all use and access on our property,” Andersen said. “We will continue to allow occasional pedestrian access on our property, as we have since we purchased it in 2010. Access is at our discretion. Parking on our property, including Rutzebeck Road, will not be allowed,” Andersen said.
Andersen called the lawsuit “stressful” and “unnecessary.”
“The only good to come of this episode is that the court concludes that allowing people to cross private property does not confer any ownership or easement rights,” she said.
Each party is responsible for bearing its own costs and attorney fees, according to the settlement.
“We would have liked to have seen Fred Einspruch pay our legal fees,” Andersen said. “The law does not support his claims, as the judge has clearly stated elsewhere in this case. This frivolous lawsuit has only wasted time and money and caused considerable hard feelings.”