August 2000 Fire Island Association Newsletter

Also in this Issue

• Bob Spencer Opinion Article

• Absentee Ballots for School Votes

• Some Notes on Flood Insurance

• What FIA Has Accomplished

Those who attended the FIA Summer Meeting on July 29 at the Community House in Ocean Beach saw the mood swing from deep concern over the future of the Fire Island Interim Project (FIIP) to renewed resolve that it not be abandoned. An almost full house was greeted by Norma Daniels, co-president of the Ocean Beach Association, and Natalie Katz Rogers, Mayor of the Village of Ocean Beach.

Carpenter Leads Off

Suffolk County Legislator Angie M. Carpenter began the program with her customary straight-from-the-shoulder approach. As a county lawmaker in whose district a large part of Fire Island resides, Ms. Carpenter continues to be a staunch advocate of the project. She has arranged and attended many meetings with officials of the involved agencies and has worked hard to see that the media also understand s what is at stake.

Perhaps Legislator Carpenter’s greatest contribution to the quality of Fire Island life is in her steadfast support for and participation in the Fire Island Law Enforcement/Safety Council, a group of safety and security professionals that meets monthly to discuss protection of people and property on Fire Island. In this connection, Ms. Carpenter welcomed Robert G. Cassagne as the new Deputy Inspector in charge of the Suffolk County Police Marine Bureau. Inspector Cassagne was congratulated on the quick work of one of the Bureau’s patrol officers, fortuitously also a paramedic, who very likely saved the life of a Kismet resident who had been taken seriously ill a few days before the meeting.

Legislator Carpenter said Inspector Cassagne’s experience in the 3^rd Precinct (Bay Shore) has led to a close working relationship there on island-related issues. Unfortunately, there seems to be an element of society whose preferred form of recreation is to come to Fire Island late on weekend nights, get drunk, and beat each other into insensibility, followed by lachrymose reconciliation. This pastime has caused major problems to police and ferry operators, as well as to Fire Island communities. The police seem to have a handle on this now and the situation seems to be improving, Ms. Carpenter said.

Ms. Carpenter also reported on her successful effort to secure funding for the boardwalk between Robert Moses State Park’s Parking Field 5 and the Lighthouse, and a grant to aid in the revitalization of downtown Ocean Beach.

Editor’s Note: It wasn’t discussed at the FIA meeting, but in other community meetings this summer the problem of noise complaints has come up frequently. Apparently, conditions have become intolerable for some located within 200 years of noisy group rentals and some island restaurants. The latter are supposed to have their doors closed to prevent noise from disturbing their neighbors, but this is a hard rule to enforce (other than in Ocean Beach, apparently) on warm summer nights. The Marine Bureau advises calling 911 to register the complaint, even if it is not, strictly speaking, an emergency. When asked for his or her name, the complainant should not hesitate to give it. Anonymous complaints may be checked out, but if no one will come forward with specifics, the restaurant owner or group house leader can’t be ticketed, removing the incentive to modify behavior. Only when it becomes clear that individual community members, and community associations, will not tolerate extreme behavior can it be expected to stop. It may require some being willing to go to court. But if that is what it takes, that is what it takes.

Report From the Seashore

Ms. Carpenter was followed by Constantine J. Dillon, Superintendent of the Fire Island National Seashore. Mr. Dillon began by discussing a study the National Park Service is doing, with the cooperation f the ferry companies, on modes of access to Fire Island. The objective is the development of a new ferry transportation plan. A more efficient ferry service should reduce demand for automobile transport. The study will also look at marina/docking availability for private boats.

The Superintendent also reported that the House Appropriations Committee had approved funding for the renovation of Barrett Beach. FINS received title to that facility from the Town of Islip, which concluded it could not afford to maintain it. The Senate Interior Appropriations bill, however, does not contain funds for Barrett Beach. Unless the House Committee prevails in Conference, it will be back to drawing board, Costa says.

FINS has trapped and tested pounds of mosquitoes and found none that carry either the West Nile or Eastern Equine Encephalitis virus. Suffolk County Vector Control and the National Center for Disease Control are participating in the effort. He noted that the West Nile mosquito travels only a few hundred yards in its lifetime, so dealing with it is practical on a neighborhood and individual homeowner basis. Standing fresh water is the culprit – garbage can lids, kiddy pools, bird baths, etc. If there must be small fresh water receptacles, be sure they are changed daily.

Mr. Dillon said FINS has still not had action in Washington to approve the Negotiating Rule Making Advisory Committee for Off Road Driving Regulations. The Committee Charter has to be printed in the Federal Register and thirty days allowed for public comment. This means the October 6-7 meeting is now anticipated to be the first, not the second, meeting of the group.

In response to a question, Mr. Dillon said this year’s deer bating/immunocontraception effort will begin in mid-August and continue through September. As usual, a lively discussion about deer ensued.

Corps of Engineers Now Pessimistic on FIIP

Joseph R. Vietri, Deputy Chief of Planning for the New York District of the Corps of Engineers, cast something of a pall over the meeting when he speculated that the state of New York would soon send a letter to the Corps and refuse to participate in the long-delayed Fire Island Interim Project for beach nourishment. He said he expected the state would opt instead to fold the interim project into the ongoing Reformulation Study of the underlying Fire Island Inlet to Montauk Point project. Mr. Vietri said he believed a likely reason for the state’s expected position was the perceived cost of the project. He acknowledged that $70 million is a hefty price tag for a six-year project and those opposing it can use this as a reason for doing so.

FIA president Jerry Stoddard, who introduced the speakers at the meeting, said this reaction fails to account for the fact that any cost of sand during the interim project would serve to reduce the cost of any project recommended as a result of the Reformulation Study. Further, any sand added to the barrier would lessen the chance that a breach would open in the barrier between now and the time the Reformulation Study results in a project. Mr. Vietri noted that the Reformulation Study has already been officially pushed back by a year as more studies are demanded by opponents of the project. The Corps has estimated that if the Interim Project is made part of the reformulation effort, it will be at least ten years before any sand nourishment occurs on Fire Island. With the island eroding at a rate estimated at one to three feet per year a breach would seem highly like to have occurred before then.

Bob Spencer Sees Fire Islanders Deprived of “Sand Civil Rights”

FIA’s 1^st Vice President, Chair of the Finance and Membership Committee and leader of the Dunes Guardians, stirred the audience with remarks that made it clear he feels that some latecomers to Fire Island have not followed through on what their predecessors and Congress promised. It was the home-owners who insisted that the Fire Island National Seashore be created, he said, and it will be the homeowners who will see to it that the promises are kept.

Mr. Spencer’s remarks tracked his recent New York Times op-ed piece, which is reproduced nearby.

On a Brighter Note

Lawrence R. Liebesman, FIA’s Environment Counsel, accentuated the positive in his remarks. Mr. Liebesman, of the Silver Spring, Md. Law firm of Linowes & Blocher, sees much progress over the past year. Last summer, he noted, the Environmental Impact Statement for the project was still on the horizon. Now, the public hearings on the EIS have been completed and the public comments were overwhelmingly positive.

Mr. Liebesman stressed that the Corps of Engineers proposal fully complies with the National Environmental Policy Act process. He feels the risks of further delay are enormous – a breach could lead to mainland property losses of over $40 million, according to Corps studies. With four category three hurricanes expected to hit the continental United States this season, the chance that one will not hit Long Island and cause a breach in the Fire Island barrier should not be taken lightly. “The ‘no action alternative’,” he said, “poses severe risks to the mainland, which receives over 80 percent of the project benefits in flood damage reduction.”

Quoting the Environmental Protection Agency to the effect that the project will not cause environmental harm, Mr. Liebesman noted that project opponents had changed their minds about what concerned them about the project. They shifted from a concern about the environment to one focused on “new building on the dunes.” He called this argument a red herring. (See previous newsletter.) Indeed, when told that the number of lots at issue might be as few as seven, a senior Interior Department official told FIA he felt that would be “de minimus.”

Mr. Liebesman concluded his remarks by asking all members to continue their letters, to our representatives in Congress and Governor Pataki, urging a prompt go-ahead for the FIIP. “The future is ours,” he said, “if we persist.”

Another Lawyer Heard From

The final speaker before a general discussion was Irving Like, of Dunewood. Mr. Like is a prominent class-action litigator with causes such as Agent Orange and the Shoreham Nuclear Power Plant under his belt. He appeared as counsel to the New York Coastal Partnership, a not-for profit charitable organization that funded a study of the economic implications of a breach in western Fire Island a few years ago.

Mr. Like, noting that he understood that FIA would not participate (so it can continue to work with government agencies), outlined a legal theory under which he feels a federal court might force the interim project on the reluctant bureaucrats now opposing it.

He began by discussing the basic statutes affecting Fire Island, saying “It is my opinion that these laws taken together either explicitly or implicitly, impose upon the government agencies statutory duties, including their duties as public trustees, to consider and balance conservation and private property interests, coordinate their activities, and to proceed with the Fire Island Interim Project.” He sees the Secretary of the Interior, Secretary of the Army and state of New York as “public trustees” who are obliged to carry out this duty.

The beneficiaries of the trust, Mr. Like believes, are the communities and individual property owners who have lost adjacent beaches through avulsion. (Avulsion is the sudden and forcible separation of land from other land of which it was a part by a flood, earthquake or extreme event such as the storms of 1992-93. Title to such land is not changed.)

Mr. Like believes a court could be convinced that the Secretary of the Interior breached his duty to protect Fire Island against erosion damage by unreasonably delaying implementation of the FIIP.

He presented the dilemma that results from Interior saying it need not issue a special use permit until New York State agrees to sponsor the project, while the state is mired in “bureaucratic infighting.” For a brief history of this, see the article on the FIA web site ( which reaches a similar conclusion.

He continued, “There is only one way left to extricate ourselves from this morass. Sue the Interior and Department of State bureaucrats for breach of their statutory duties to move forward with the FIIP. Prove in court that their breach of injures the public interest and the property rights of Fire Island oceanfront owners. Consider also suing personally, under the Constitutional Tort Doctrine, for money damages, any individual bureaucrat whose conduct caused injury to the property rights of Fire Island property owners.”

Mr. Like concluded: “I will end with this warning. If Interior doesn’t issue its permit within a reasonable period of time, New York Coastal Partnership, Fire Island and mainland property owners will prepare to file a class action litigation against the Secretary of the Interior, and any others responsible for stalling or impeding the FIIP.”

As might be expected, the discussion that followed was animated.

ABSENTEE BALLOTS FOR SCHOOL ELECTIONS AVAILABLE

The previous Newsletter urged Fire Islanders to register at least one family member to vote from Fire Island, in person, if possible, but by absentee ballot if not. A form for registering with the Suffolk County Board of Elections was enclosed. Several members have since asked if absentee ballots are available, too, for school board elections and budget approvals. They are, but registration for these elections is separate.

Kenneth A. Lanier, Sr., Superintendent of the Fire Island School District, wrote to FIA to say that “Any island resident currently registered as a Suffolk County voter simply has to call [(631) 583-5626] or write [Box 428, Ocean Beach, NY 117709-0428] the school office, in care of the District Clerk, to obtain an application” for an absentee ballot. He attached an excerpt of a Public Notice to that effect.

It is appropriate for summer residents to show an interest in the school, its curriculum and other matters, if they propose to vote on decisions affecting the school. All should bear in mind that Fire Island school taxes, while substantial, are far lower than they would be if the district were merged with one on the mainland, so the school itself has great value to all Fire Islanders.

All around the country, owners of vacation homes are complaining about the fact that they often pay the bulk of local taxes, for police and other things as well as schools, while expenditures are made that primarily benefit the community’s year-round residents. Thankfully, there is very little of that on Fire Island. The reason may be that most of the summer residents are from relatively nearby – the metropolitan area, predominantly, with a growing number from mainland Long Island. It isn’t unusual for “summer people” to visit their island homes and friends over the winter. Many are in close contact in the off-season.

This may give rise to a sense that everything is okay and be a reason that few go to the trouble of re-registering to vote from Fire Island. But if all of us want to be heard by mainland government on important, pocket-book issues, it is essential that summer people join the year-rounders – and VOTE!

One of the FIA “accomplishments” Bob Spencer included on the enclosed list refers to the struggle over the National Flood Insurance Program (NFIP) in the early 1990s. Some will recall the lop-sided vote in 1991 in favor of a House bill that would have ended flood insurance, as we know it, for coastal properties. FIA, by no means alone, was in the thick of the fight.

Six years later, the forces that tried to convert this very successful insurance program into federal land-use control of the nation’s coastlines are back at it. The guise in 1993 was a mapping program that would determine “average annual erosion rates,” and put special rules in effect that would have denied flood insurance to most coastal homeowners. All that has changed in 2000 is that the term is now “annual erosion rates.” It is equally unmeasurable, and certainly can’t be a basis for denial of flood insurance.

Newsday published FIA’s response to an editorial entitled “Don’t Subsidize Homes Built on LI’s Shifting Sands.” We noted that, “Use of the dreaded word “subsidy” is supposed to make turning over coastal land-use planning to the feds more palatable.” (Newsday, July 13.)

Coastal property owners support the NFIP, not because it provides a subsidy but because it is a rational, self-supporting insurance program that requires communities to impose common-sense building standards that reduce flood damage in return for affordable insurance to cover catastrophic events.

Here are some facts you will not read in the media blitz put on by the anti-beach house wing of the environment lobby following the release of the Heinz Center Study commissioned by the Federal Emergency Management Agency (FEMA). Edward J. Pasterick, its Director of Finance, who spoke to the American Coastal Coalition’s Second Coastal Summit in June, says that NFIP collects $1.3 billion in annual premiums. The program is self-supporting for the average historical loss year and no federal dollars have been appropriated for the program since 1986.

Annual claims average $700 million. When losses are greater than that, the program can borrow up to $1.5 billion from the Treasury. Right now the program owes the Treasury about $740 million.-- but it has paid from premiums some $7 billion in claims since 1986. NFIP pays its operating costs, including some $700 million expected to be needed for new Flood Insurance Rate Maps, and all staff costs, out of premium revenue. Over the entire life of the program, 88 percent of costs have been met from premiums.

In the period from 1968 to 1986, the emphasis was on qualifying communities and getting them to join the program. In that period, NFIP regularly had to borrow from the Treasury. Most originally insured properties were not built to FEMA standard but were entitled to up to $35,000 of insurance anyway at a below-full-risk rate. It is in this sense only that the program “subsidized” property owners. The subsidy was planned to, and did, serve as inducement to get communities into the program so that better construction standards would eventually reduce the risk faced by properties in the floodplain.

The subsidy continues for the 30 percent of structures insured by the program that are pre-FEMA standard. The owners of some 1.2 million properties pay, on average, only about 38 percent of the true cost of their insurance. Again, this subsidy was built into the program because the owners of the insured property could not afford actuarial rates. The underlying purpose of the program, however, was to require that new properties be built to standards that would result in far fewer flood losses, and that has been the case.

Congress is expected to reduce any subsidy on second homes and non-residential property to address the shortfall and minimize federal costs. Any reduction is likely to be phased in over a period of years. Also, the owners of 10,000 houses (out of 4 million insured) are expected to be given an opportunity to improve to standard or to relocate. If they decline to do either, they may expect to pay the full actuarial rate.

This kind of common sense adjustment in the program will continue. But it will not satisfy those who want the program, not to insure houses, but provide a rationale for their removal from the shore. In the meantime, some beaches will erode, some will accrete and some will do neither in any given year.