DOCKET NO. KNL-CV-18-6036493-S SUPERIOR COURT

KATHLEEN TRACEY, ET AL J.D. OF NEW LONDON
V. AT NEW LONDON
MIAMI BEACH ASSOC, 

MIAMA BEACH ASSOCIATION JANUARY 15, 2020

MEMORANDUM OF DECISION

I. Introduction

The plaintiffs, Kathleen Tracey, Jerry Vowles, Dee Vowles, and Robert Breen,
commenced this action by complaint, dated August 2, 2018, against the defendant Miami
Beach Assoc. a/k/a Miami Beach Association (the association). The defendant is an entity
created by a special act of the state legislature, approved July 1, 1949, and located in the town
of Old Lyme. The plaintiffs, respectively, own prOperties in Old Lyme, Connecticut in an area
commonly known as Sound View. The plaintiffs allege that the defendant has hindered and
violated their right of access to Miami Beach, located in the town of Old Lyme, Connecticut, in
violation of a prior judgment of this court in Vitello v. Corsino, Superior Court, judicial district
of New London, Docket No. 20902 (February 18, 1953, Troland, J.). The present case was
heard by the court on July 24, 2019. The parties subsequently ?led simultaneous post-trial
briefs and the defendant ?led a reply brief.
11. Facts and Procedures

In the revised complaint, the plaintiffs allege the defendant?s installation of a fence in
2017 restricts their access to a sandy beach, known as Long Island Avenue but more commonly

referred to as Miami Beach.1 The plaintiffs claim the association?s installation of the fence

 

1 For clarity, the beach will be referred to as Miami Beach in this memorandum of decision unless it is
in the context of the 1953 action, where it will be referred to as Long Island Avenue, because the beach
was not referred to as Miami Beach in that case.

 

 

 

violates a 1953 judgment of this court in Vitello v. Corsino, supra, Superior Court, Docket No.
20902. The 195 3 judgment provided an order for permanent removal of a similar boundary
fence installed by the defendant in 1952. The plaintiffs also claim that the prior judgment
ordered the defendant to refrain from restricting access to Miami Beach in any other way, but
that the defendant initiated a program, after the installation of the fence in 2017, requiring
persons using the beach to have permits or pay fees. The plaintiffs claim this program is an
impermissible restriction on the public?s right to free access to the beach.

The defendant denies the allegations and claims it is permitted to restrict access to
Miami Beach. The defendant recognizes the prior judgment in Vitello v. Corsino, supra,
Superior Court, Docket No. 20902, but disagrees as to (1) whether, or to what extent, the 1953
judgment is applicable to this case; (2) whether the prior judgment found Miami Beach is
dedicated for public use; and (3) claims, in the alternative, the restrictions are reasonable.

Many of the facts are not in dispute. The area of land at issue is Miami Beach,
previously known as and referred to in deeds of conveyance as Long Island Avenue. It consists
of a strip of sandy beach bordered southerly by the waters of Long Island Sound and northerly
by roadways or private residential properties located within the association. The plaintiffs own
pr0perties on Hartford Avenue, which extends down to the high water line, although the last
portion of the avenue adjacent to the high water line of Long Island Sound is a narrow stretch
of sandy beach. This beach portion of Hartford Avenue, also known as Sound View Beach,
abuts Miami Beach.

In 2017, the defendant installed a wire boundary fence along the eastern boundary of
Miami Beach, which is abutting and adjoining Hartford Avenue, to a point above or near the
high water mark of Long Island Sound. Presently, access to Miami Beach is primarily through

an attended gate in the fence, where members or employees of the association regulate

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admission to the beach. The general public has the right to traverse the area of Miami Beach
below the high water mark, which remains unimpeded by the 2017 fence.2 After 2017, any and
all persons who intend to stay on the beach for recreation, leisure, sport, or socializing are
subject to restrictions, which include possession of a permit or payment of fees.

The parties presented evidence addressing the prior judgment and the current
restrictions on the public use of Miami Beach. Accordingly, the court examines the evidence
chronologically.

A. The 1953 Judgment

In 1952, individual residents of the adjacent Sound View Beach neighborhood brought
an action against the present defendant, amongst others, claiming the erection of a fence
composed of wire by the association was intended to and restricted public access to Miami
Beach, known at the time as Long Island Avenue. As previously noted, in 1953, the court
entered judgment in favor of the plaintiffs. Vitello v. Corsino, supra, Superior Court, Docket
No. 20902.

The Vitello action was brought in three counts. (Ex. 2, Complaint, p. 1-3). In the ?rst
count, the plaintiffs claimed a wrongful interference with their free use of Long Island Avenue
resulting from the defendant?s erection of an iron fence, together with wood pilings and a wood
fence, to the mean high water mark. Id. In count two, the plaintiffs claimed a prescriptive right
of use of Long Island Avenue. Id. In count three, the plaintiffs alleged continuous and
uninterrupted use of Long Island Avenue, without abandonment of Long Island Avenue the

public way. Id.

 

2 There was credible testimony that, after 2017, persons walking on the beach were confronted by the
defendant?s security, employees, or agents and asked about their intended use of the beach. The
defendant installed a sign at the gateway to the beach, after the commencement of this action, permitting
individuals to walk through, but not stay on, the beach.

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The court entered judgment in favor of the plaintiffs on counts one and three as follows:
?The Court, having heard the parties, ?nds the issues upon the First Count for the plaintiffs
enumerated therein, and also ?nds the issues for all of the plaintiffs upon the Third Count, and
at the request of the plaintiffs specially sets forth the facts found as follows:

?That Harry J. Hilliard, formerly of the Town of Old Lyme, was the owner of the land
now known and designated as Swan Avenue, Hartford Avenue, Portland Avenue, and Pond
Road, and the adjacent streets and the land abutting on those thoroughfares, except for land east
of Swan Avenue, and that during his lifetime he developed this land laying it out in the roads
and streets mentioned, and with building lots adjacent thereto; and that in selling these lots he
created certain private rights pertaining to the land sold and the use of the strip of beach running
westerly from Hartford Avenue, so?called, and known as Long Island Avenue, and that in
addition to that during his lifetime and prior to the year 1941 he dedicated for public use the
strip of land known as Long Island Avenue, and that said Long Island Avenue is bounded as
follows . . . and that this dedication for such use by the said Harry J. Hilliard was accepted by
the unorganized public and has been continuously used and enjoyed by the public down to the
date of the beginning of this action.

?As a conclusion of law from these facts, the Court ?nds the issues on the Third Count
for all the plaintiffs.? Vitello v. Corsino, supra, Superior Court, Docket No. 20902.

The trial court entered the following orders granting injunctive and declaratory relief.
The court orders provided in relevant part: it is adjudged that the defendants
and their servants and agents be, and they are hereby enjoined . . . from maintaining and
establishing after the 29th day of May, 1953 a steel and wire fence across said Long Island
Avenue from the intersection of Long Island Avenue with the west line of Hartford Avenue in

said Town of Old Lyme; and it is further adjudged that the defendants and their servants and
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agents be, and they are hereby ordered . . . to remove from the said Long Island Avenue the said
steel and wire fence which they have erected . . . and it is further adjudged that the defendants
and their servants and agents be, and they are hereby enjoined . . . from interfering with the
rights of the plaintg?fs and the unorganized public to ?ee entry and egress, and to ?ee and
unimpeded use and enjoyment of said Long Island Avenue along its entire length and width,
?om now henceforth . . . (Emphasis added). Id. The judgment of the court was entered on
February 18, 1953, and no appeal was taken from this final judgment.

B. The 2017 Fence Installation

The plaintiff Kathleen Tracey is the owner of property on Hartford Avenue, in the town
of Old Lyme, Connecticut. For over a decade, Tracey and her family or friends frequently used
and enjoyed Miami Beach for recreation and leisure. She testi?ed that during that time, Miami
Beach was an open and unobstructed sandy beach adjacent to Hartford Avenue. Tracey testi?ed
that after the summer season ended in 2017, a wire fence with a gated entrance was installed on
the boundary line of Miami Beach. The fence restricted access to the beach. The subsequent
imposition of fees and permits restricted the types of use and free use of the beach.

The plaintiff Robert Breen, also an owner of property on Hartford Avenue, testi?ed that
he spent his summers at a family home in the Sound View neighborhood and they regularly
used and enjoyed Miami Beach. He testi?ed that from his earliest recollection, there was free
and unimpeded access to Miami Beach. He testi?ed that members of the public regularly used
the beach for recreation and leisure. He stated that during his lifetime, until 2017, there was no
boundary fence restricting access to Miami Beach. Since the imposition of the fees and permits,
he has not used or enjoyed Miami Beach.

The defendant offered the testimony of several association residents. Mark Mongiello

has served as a director, of?cer, and president of the board of governors of the association for

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many years. Mongiello explained that, prior to the installation of the fence, individuals using
the beach acted disrespectfully and abusively. The defendant also offered the testimony of
Chris Calvanese and Sandra Manafort, association residents, who similarly testi?ed that the
conduct of the persons using the beach had deteriorated over the years. The court ?nds that, on
occasion, unknown persons treSpassed onto private residential property adjacent to the beach.
In addition, some users of the beach discarded garbage and engaged in misconduct, including
public drunkenness, public urinating, ?ghting, and sexual relations on the beach. In response to
this conduct, the defendant installed the fence and began charging fees or requiring permits as
part of a ?Clean Beach Program.? Mongiello explained that the program was initiated to better
manage the conduct, cleanliness, and safety of the beach.

Pursuant to the program, there were an array of permissible admissions to the beach
contingent on the individual?s residence or intended use of the beach. Residents of the town of
Old Lyme were required to show proof of residency, and, in return, were provided admission to
use the beach. The residents of Sound View, which included the plaintiffs in this action, could
purchase a pass for a fee. Members of the general public, who are not residents or owners of
property in the town of Old Lyme were required to pay a fee.3 The defendant?s new oversight
of and restrictions to access and use of the beach were part of the ?Clean Beach Program.?

In addition, Terry DeVito, a resident of the association for twenty-?ve years and the tax
collector and treasurer of the association for twenty~two years, testi?ed to the costs of the
?Clean Beach Program,? including start-up and recurring expenses. These expenses included
retention of a management consultant to initially organize and operate the program, wages for

employees working the gate verifying passes and collecting usage fees, distribution of garbage

 

3 The fees in 2019 were $10 per adult, $5 per child aged ten through seventeen, and free for children
under ten years old.

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bags to beach users, and wages for security personnel. She testi?ed that the association?s
income included funds received from the town of Old Lyme4 plus additional income produced
by the funds generated through the program from the permit and admission fees. She testi?ed
that in 2017 and 2018, the program operated at a de?cit.
111. Discussion

The plaintiffs seek injunctive relief that the defendant be ordered to remove the 2017
fence and be enjoined from charging fees and issuing permits for use of the beach, and a
declaratory judgment ?nding that the defendant?s actions preventing the plaintiffs? use of
Miami Beach are in violation of previous court orders.

A. Standard and Burden of Proof

The general burden of proof in civil actions is on the plaintiff, who must prove all the
essential elements of the cause of action by a fair preponderance of the evidence. Gulycz v. Stop
Shop Cos, 29 Conn. App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d
527 (1992). ?The [fact-?nding] function is vested in the trial court with its unique opportunity
to view the evidence presented in a totality of the circumstances, including its observations
of the demeanor and conduct of the witnesses and parties . . . (Internal quotation marks
omitted). Cavolick v. DeSimone, 88 Conn. App. 638, 646, 870 A.2d 1147, cert. denied, 274
Conn. 906, 876 A.2d 1198 (2005).

?[F]inal judgments are . . . presumptively valid . . . and collateral attacks on their
validity are disfavored.? (Internal quotation marks omitted.) Sousa v. Sousa, 322 Conn. 757,

771, 143 A.3d 578 (2016). See also Cohen v. Cohen, 327 Conn. 485, 502, 176 A.3d 92 (2018)

 

4 DeVito testi?ed that the town of Old Lyme provides grants to support beaches located in the town,
including Miami Beach. She further testi?ed that the grant to the association in 2018 and 2019 was in
the sum of approximately $19,000 to $20,000 annually.

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(stating that ?[c]ollateral attacks on judgments are strongly disfavored?). ?The reason for the
rule against collateral attack is well stated in these words: The law aims to invest judicial
transactions with the utmost permanency consistent with justice.? (Internal quotation marks
omitted.) Investment Associates v. Summit Associates, Inc. 309 Conn. 840, 858, 74 A.3d 1192
(2013). ?It has long been accepted that a system of laws upon which individuals, governments
and organizations rely to resolve disputes is dependent on according ?nality to judicial
decisions. . . . The convention concerning ?nality of judgments has to be accepted if the idea of
law is to be accepted . . . . party should not be able to relitigate a matter which it already has
had an opportunity to litigate.? (Citation omitted; internal quotation marks omitted.) Marone v.
Waterbury, 244 Conn. 1, 11, 707 A.2d 725 1998). Once a ?nal judgment has been issued, ?it is
within the equitable powers of the trial court to fashion whatever orders [are] required to protect
the integrity of [its original] judgment? including injunctive relief. (Internal quotation marks
omitted.) Racque v. Light Sources, Inc, 275 Conn. 420, 433, 881 A.2d 230 (2005). See also
Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc, 219 Conn. 657,
670, 594 A.2d 958 (1991) (recognizing that ?[c]ourts have in general the power to fashion a
remedy appropriate to the vindication of a prior . . . judgment? [internal quotation marks
omitted]).

B. Enforcement of 1953 Judgment

In the present case, the plaintiff relies on the 1953 judgment of this court that found that
Harry J. Hilliard, the defendant?s predecessor in title to Miami Beach, dedicated the beach to
public use and the unorganized public accepted this dedication. The defendant claims,
notwithstanding the 195 3 judgment, it owns Miami Beach and has the right to restrict access or

use thereto.

 

 

 

The plaintiffs rely on the well-established principles of res judicata and collateral
estoppel for the position that the defendant cannot collaterally attack the 1953 judgment. The
concepts of res judicata and collateral estoppel are intended to prevent the relitigation of legal
issues or claims. ?Claim preclusion, sometimes referred to as res judicata, and issue preclusion,
sometimes referred to as collateral estoppel, are ?rst cousins. Both legal doctrines promote
judicial economy by preventing relitigation of issues or claims previously resolved.? Ventres v.
Goodspeed Airport, LLC, 301 Conn. 194, 205, 21 A.3d 709 (2011).

?The doctrine of res judicata holds that an existing ?nal judgment rendered [on] the
merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes
of action and of facts or issues thereby litigated as to the parties or their privies in all other
actions in the same or any other judicial tribunal of concurrent jurisdiction. . . . If the same
cause of action is again sued on, the judgment is a bar with respect to any claims relating to the
cause of action [that] were actually made or [that] might have been made.? (Internal quotation
marks omitted.) Wellswood Columbia, LLC V. Hebron, 327 Conn. 53, 65, 171 A.3d 409 (2017).
?[T]he purposes of res judicata [are] promoting judicial economy, minimizing repetitive
litigation, preventing inconsistent judgments and providing repose to parties . . . Lighthouse
Landings, Inc. v. Connecticut Light Power Co., 300 Conn. 325, 350, 15 A.3d 601 (2011).

?Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if
rendered on the merits, is an absolute bar to a subsequent action on the same claim.? (Internal
quotation marks omitted.) DeMilo Co. v. Commissioner of Motor Vehicles, 233 Conn. 281,
292, 659 A2d 162 (1995). Under res judicata, ?a ?nal judgment that is rendered by a court of
competent jurisdiction is conclusive of the rights of the parties in the same or any other judicial
tribunal.? (Emphasis in original.) Seaboard Surety Co. v. Waterbury, 38 Conn. Supp. 468, 471,

451 A.2d 291 (1982).

 

 

 

?Res judicata bars the relitigation of claims actually made in the prior action as well as
any claims that might have been made there. . . . Public policy supports the principle that a party
should not be allowed to relitigate a matter which it already has had an opportunity to litigate.?
(Citation omitted; intemal quotation marks omitted.) Wheeler v. Beachcroft, 320 Conn. 146,
157, 129 A.3d 677 (2016). ?Generally, for res judicata to apply, four elements must be met: (1)
the judgment must have been rendered on the merits by a court of competent jurisdiction; (2)
the parties to the prior and subsequent actions must be the same or in privity; (3) there must
have been an adequate opportunity to litigate the matter fully; and (4) the same underlying
claim must be at issue.? (Emphasis added.) Id., 156-57.

Collateral estoppel operates against either the same parties as previously litigated the
issue or those in privity with them. Ventres v. Goodspeed Airport, LLC, supra, 301 Conn. 206.
?In determining whether privity exists, we employ an analysis that focuses on the functional
relationships of the parties. Privity is not established by the mere fact that persons may be
interested in the same question or in proving or disproving the same set of facts. Rather, it is,
in essence, a shorthand statement for the principle that collateral estoppel should be applied
only when there exists such an identi?cation in interest of one person with another as to
represent the same legal rights so as to justify preclusion.? Id., 207.

In this case, the judgment was rendered based upon ?ndings of fact by a court of
competent jurisdiction. The parties do not need to be identical, but rather in privity. Girolametti
v. Michael Horton Associates, Inc, 332 Conn. 67, 76, 208 A.3d 1223 (2019) (stating that
privity is an element of res judicata de?ned as ?such an identi?cation in interest of one person
with another as to represent the same legal rights? [internal quotation marks omitted]); Wheeler
V. Beachcroft, supra, 320 Conn. 156~57. The defendant is the same in the 1953 judgment and

the pending action. The plaintiffs in the 1953 action were residents of Sound View, as are the

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plaintiffs in this action, and respectively claim their access to Miami Beach has been restricted
by the defendant?s installation of a fence on the boundary. There is no evidence that the parties,
particularly the defendant, were not presented an opportunity to litigate fully the controversy in
1953.

?To determine whether claims are the ?same? for res judicata purposes, this court has
adopted the transactional test.? Wheeler v. Beachcroft, supra, 320 Conn. 159. To determine
whether the cases are the ?same? the court must determine ?[w]hat factual grouping constitutes
a transaction, and what groupings constitute a series, [which] are to be determined
pragmatically, giving weight to such considerations as whether the facts are related in time,
space, origin, or motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties? expectations or business understanding or usage. . . .
[E]ven though a single group of facts may give rise to rights for several different kinds of relief,
it is still a single cause of action. . . . In applying the transactional test, we compare the
complaint in the [present] action with the pleadings and the judgment in the earlier action."
(Citations omitted; internal quotation marks omitted.) Id., 159-60.

In the 1953 action, the plaintiffs claimed a wrongful interference with their free use of
Long Island Avenue, now known as Miami Beach, in count one and alleged continuous and
uninterrupted use of Long Island Avenue in count three. The court found in favor of the
plaintiffs on both counts. In this action, the plaintiffs claim the right to unrestricted use of the
same beach as previously determined in 1953. In sum, present controversy is substantially
similar to the 1953 litigation; the facts and claims for unrestricted use of Miami Beach, as a
public beach, are identical. The only distinction between the cases is the defendant?s recent
additional restriction on access to the beach by imposition of fees and permits. The court ?nds

the permits and fees to be an equivalent restriction to access to or use of the beach. Under the

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present circumstances, the permit and fee requirements, as a condition of admission, are as
restrictive as a physical boundary fence.

As applies to both res judicata and collateral estoppel, trial courts have some discretion
in determining the application of the doctrines. Our Supreme Court has said, and this court
recognizes, that ?[t]he doctrines of preclusion . . . should be ?exible and must give way when
their mechanical application would frustrate other social policies based on values equally or
more important than the convenience afforded by ?nality in legal controversies.? (Internal
quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light Power Co, supra,
300 Conn. 345. See also Isaac v. Truck Service, Inc, 253 Conn. 416, 423, 752 A.2d 509 (2000).

The defendant offers no evidence of any substantive legal change in the terms of the
dedication of Miami Beach since the 1953 judgment. The evidence presented in this case fails
to convince the court that the exercise of discretion should apply in order to reconsider the
issues determined in the 1953 judgment. The claims by current association members that there
was increased disrespectful and potentially criminal misconduct by persons using the beach do
not warrant the defendant?s unilateral restrictions on the use of the land dedicated for public
use.5 The misconduct of some users does not, however, warrant the defendant?s restrictions on
access to and use of Miami Beach. The defendant?s installation of the fence, gated entrance,
fees, and permits are restrictions on the public dedication of the beach that violate the 1953

judgment.

 

5 There is no evidence with regard to the identity of the persons engaging in misconduct. There is no
evidence whether such persons are members of the general public, residents of the town of Old Lyme,
residents of Sound View, or even members or guests of residents of the association.

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C. Prior Deeds of Conveyance

The defendant argues that, notwithstanding the 1953 judgment, the pertinent deeds of
conveyance demonstrate that the public use of Miami Beach is limited to foot passengers and
bicycles only. The defendant claims that the prior judgment did not consider the deeds of
conveyance, which limit the public use of the beach to ?foot passengers and bicyclists.?6 The
court rejects the defendant?s claim that the deeds of conveyance prior to 1951 provide authority
to restrict access to the beach by a boundary fence, where the same issue involving the same
defendant was litigated and decided in the prior judgment.

It is the defendant?s position that the dedication to the public was limited to use as a
public highway. The defendant claims that, given the limitation on the dedication, it has the
right to impose any other restrictions on the use of Miami Beach that do not impede foot

passengers and bicyclists. Simply stated, the defendant claims it can restrict the public?s use of

 

6 While Hilliard was alive, he laid out a plan for what is now known as the Miami Beach community.
(Ex. 8, Ex. Z). The properties along the beachfront were all bound by the northerly boundary of Long
Island Avenue. There is no claim or evidence that any beachfront property was conveyed to the high
water mark of the Long Island Sound. Two earlier conveyances of property by Hilliard, to Henry A.
Neivert and Edw. G. Sissarsky, by warranty deed recorded June 19, 1925, and to Geo. Angelo and Peter
Gagliardi, by bond for deed recorded September 4, 1925, describe the southerly bounds of the conveyed
property as bound southerly by Long Island Avenue, ?another private road of said Hilliard.? (Ex. W, Ex.
Y). Hilliard also conveyed to Peter Gagliardi, by warranty deed dated recorded on April 23, 1930, real
property similarly bound southerly by the northerly boundary of Long Island Avenue. (Ex. X). Each
conveyance included the following: ?The southerly boundary of Long Island Avenue, is the line of the
mean Floodtide of the waters of Long Island Sound, and the said Hilliard hereby agrees for himself, his
heirs and assigns [sic] that the land compromising the said avenue shall not be sold but be retained as an
open way for public use as above described.? Id. The preceding sentence provides, in pertinent part, that
?[t]he said Gagliardi shall have the right of way through Pond Road, the road between Lots Bl and B2,
through Lot (which is now dedicated for road purposes) and for foot passengers and bicycles only,
through Long Island Avenue.? Hilliard?s remaining property at the time of his death was conveyed by
his estate by a certi?cate of devise dated December 7, 1942, and recorded with the town clerk of Old
Lyme, and contains a similar description pertaining to Long Island Avenue. (Ex. T). Thereafter, Long
Island Avenue is included in a quitclaim deed from Nunzio Corsino to the association recorded on
November 29, 1951, with the town clerk. (Ex. V). For one dollar consideration, the releaser conveys all
interest ?in or to the private roads known as Long Island Avenue, for foot passengers and bicycles only,
the road between Lots B1 and through Bl 1, Pond Road . . . as shown on the map of Miami Beach,
Old Lyme, Connecticut, on ?le in the of?ce of the Town Clerk of the Town of Old Lyme.?

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Miami Beach for purposes of recreation, leisure, sport, picnics, and the like. The court
disagrees.

First, for all the reasons set forth in part A and of this Opinion, the court rejects
this collateral attack on the 1953 judgment. The relevant deeds and conveyances are dated prior
to the 1953 judgment. The Hilliard deed of conveyance of Long Island Avenue to the
association occurred in 1951, and any claims as to the limitation of use could have or should
have been raised in the 1953 action. Most signi?cantly, the court expressly found that
?[Hilliard] dedicated for public use the strip of land known as Long Island Avenue . . . and that
this dedication for such use by the said Harry J. Hilliard was accepted by the unorganized public
and has been continuously used and enjoyed by the public down to the date of the beginning of
this action.? Vitello v. Corsino, supra, Superior Court, Docket No. 20902. Based on its
?ndings, the court ordered the permanent removal of the boundary fence.

There is an additional reason to reject the defendant?s claim. The necessary elements of
dedication and acceptance are set out in Meshberg v. Bridgeport City Trust Co., 180 Conn. 274,
279, 429 A.2d 865 (1980), as follows: ?Dedication is an appropriation of land to some public
use, made by the owner of the fee, and accepted for such use by and in behalf of the public. . . .
Both the owner?s intention to dedicate the way to public use and acceptance by the public must
exist, but the intention to dedicate the way to public use may be implied from the acts and
conduct of the owner, and public acceptance may be shown by proof of the actual use of the
way by the public. . . . Thus, two elements are essential to a valid dedication: a manifested
intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance
by the proper authorities or by the general public. . . .No particular formality is required in
order to dedicate a parcel of land to a public use; dedication may be express or implied. . . .

Whether there has been a dedication and whether there has been an acceptance present

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questions of fact.? (Citations omitted; internal quotation marks omitted.) In the prior judgment,
the court made ?ndings on Hilliard?s dedication and the acceptance.

In the intervening years from 1953 to 2017, the general public had free and open access
to Miami Beach consistent with the dedication found by the court in the prior judgment. The
court rejects the defendant?s claim that the defendant voluntarily allowed public access. The
fence in 1953, and similarly in 2017, restricted the dedication of Miami Beach to the public. A
fence is erected for the purpose of de?ning boundaries and to keep persons from crossing the
boundary line. By its innate characteristic, it restricts access. The 1953 judgment concluded any
controversy on the defendant?s restriction of the public?s access by installation of a fence on the
boundary of Miami Beach, then Long Island Avenue, both then and now. Vitello v. Corsino,
supra, Superior Court, Docket No. 20902.

In this case, the judgment was rendered based upon ?ndings of fact by a court of
competent jurisdiction. The parties do not need to be identical. Wheeler v. Beachcroft, supra,
320 Conn. 156?57. The defendant is the same in the 1953 judgment and the pending action. The
plaintiffs in the 1953 action were residents of Sound View, as are the plaintiffs in this action,
and respectively claim access to Miami Beach has been restricted by the defendant?s installation
of a fence on the boundary. There is no evidence that the parties, particularly the defendant,
were not presented an Opportunity to litigate fully the controversy in the prior action.

D. The ?Clean Beach Program? was Reasonable

Finally, the defendant claims the ?Clean Beach Program? is reasonable under the
circumstances. Here again, the defendant?s only evidence of any change in circumstance from
the prior judgment is limited to the current misconduct by some users of Miami Beach. The
defendant, whatever laudable intentions it may have, does not have the right to restrict access to

Miami Beach to permit holders or paying users in order to remediate such conduct. Similarly,

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fences, gates, and the imposition of permits or fees on users are unreasonable in light of the
public?s right to access to Miami Beach and the alternatives available to address the types of
issues presented by the association residents. The defendant relies on user conduct to justify the
association?s ?Clean Beach Program? to enforce restrictions on access to Miami Beach. Simply
stated, from the date of Hilliard?s dedication, Miami Beach has been dedicated for public use.

In its post?trial brief, the defendant argues that the implementation of the ?Clean Beach
Program? was a reasonable restriction on entry to Miami Beach and does not unduly limit the
rights of any persons granted an easement to use the public right of way. For the reasons set
forth in part of this opinion, the court rejects the defendant?s position that the public
dedication herein is limited to use as a public highway or is an easement granting a right of way.
The cases to which the defendant cites in support of this argument, however, discuss this
principle solely in the context of an easement granting a right of way rather than a dedication for
public use, as in the present case. See Kelly V. Ivler, 187 Conn. 31, 48, 450 A.2d 817 (1982);
Orchard Place Associates, LLC v. Briggs, Superior Court, judicial district of Stamford-
Norwalk, Docket No. CV-01-0182302 (February 22, 2002, Adams, J.) (31 Conn. L. Rptr. 465);
ighe v. Berlin, Superior Court, judicial district of New Britain, Docket No. CV-97-0575028-S
(August 9, 2000, Rittenband, .l Furthermore, in Kelly, on which the defendant relies most
heavily, the disputed fence infringing upon the easement extended only seven and one-quarter
inches into the six foot wide right of way, which supported the court?s decision that the fence
was reasonable. Kelly v. Ivler, supra, 48. In contrast, the fence erected by the defendant in the
present case blocks substantially all of the boundary of Miami Beach. Therefore, Kelly is
inapplicable to the present case.

Finally, the defendant cites to Kempner v. Greenwich, 562 F. Supp. 2d 242 (D. Conn.

2008), to support its argument that, even if Miami Beach were dedicated as a public beach
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rather than a right of way, the implementation of a permit or fee program is permitted under
state and federal law. Kempner, however, addresses the imposition of a fee for beach access
only in the context of that plaintiff? argument that the charge of a fee at a town-owned, public
beach infringed on his ?rst amendment rights and involves no discussion of easements. Id. The
present case, in contrast, involves a beach dedicated for public use from private property rather
than a town-owned beach; therefore, the first amendment considerations of Kempner do not
apply-
IV. Conclusion

The court ?nds the issues in favor of the plaintiffs and grants their claims for relief as
follows.

Wherefore, the defendant is ordered to remove the fence installed on the boundary of
Long Island Avenue, commonly known as Miami Beach, now and hereinafter; the defendant is
enjoined from maintaining or establishing any other fence on the boundary of Long Island
Avenue, now and hereinafter and the defendant is further enjoined from charging fees and
issuing permits for use of the Long Island Avenue by the public. The defendant shall comply
with the prior judgment which bears repeating as follows; the defendant is further enjoined
?from interfering with the rights of the plaintiffs and the unorganized public to free entry and
egress and to free and unimpeded use and enjoyment of Long Island Avenue along its entire
length and width, now and hereinafter.?

The plaintiff shall be entitled to costs.

 

 

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