After a controversial fence erected adjacent to Old Saybrook’s Town Beach was knocked down by Tropical Storm Isaias, the property owner told the state’s Department of Energy & Environmental Protection (DEEP) that she is unsure whether she will put up a new one.

If the 99 Plum Bank Road property owner, Carol P. McCurdy, does erect a fence in the same location, she will obtain prior authorization from DEEP, she said by email to DEEP environmental analyst Kevin Zawoy on Aug. 7.

The statement by McCurdy came after she and her husband, Bruce McCurdy, hired a surveyor to newly survey the property. The location of the fence, which was frequently doused by high tides, had been the subject of public protests.

“The survey seems to show that the previously installed fence was located waterward of the [Coastal Jurisdiction Line or] CJL but not waterward of [the Mean High Water mark or] MHW,” Zawoy wrote in a reply to Carol McCurdy.

The fence had been positioned beyond the CJL, meaning that a permit was required to erect it. A permit was neither applied for nor obtained by the McCurdys.

DEEP was investigating whether the fence had been installed without a necessary permit as well as whether it cordoned off beach that was part of the public trust.

The new survey, conducted in late July, indicates that the fence was not beyond the MHW. Zawoy described the fence as being “very close” to it.

The 2020 survey shows dramatic change from the previous survey, which was conducted in 2015, Zawoy said. The McCurdys had been basing their claims about the legality of the fence on the earlier survey.

“They’ve lost a considerable amount of property” since the 2015 survey was done, Zawoy said. Although “one good storm” could conceivably bring sand back to the property, it’s more likely for storms to cause further erosion.

“Usually, it keeps getting worse” from a property owner’s perspective, Zawoy said. The erosion “happens on a yearly basis.”

Bruce McCurdy told Harbor News in July that he had erected the fence in attempt to impede erosion of the property. However, Zawoy explained, such fences are not effective on wet sand.

The snow fence, often used on sand dunes, is “not something you put in the water,” he said.

An Area of Contention

The issue was brought to light by a local Facebook group called the Connecticut Coastal Public Access Defense (CCPAD) that describes itself as committed to defending “legal public access rights to Connecticut’s beaches, parks, rivers, land trusts, and other designated public access areas.”

The group staged at least two demonstrations in July with members sitting in the fenced-off area, claiming that the McCurdys were impeding access to beach that the public has a right to use.

On July 21, Old Saybrook native Bart Gullong filed a lawsuit against the McCurdys, alleging illegal interference with the public right of access to and from Old Saybrook Town Beach and seeking damages in the amount of $2,500 or more as well as a permanent injunction to prevent the McCurdys from maintaining the present fence or installing a new one on public land.

The town determined that the fence extended too far toward the town jetty and demanded that it be moved. The McCurdys complied, but the fence otherwise remained in place until Isaias arrived on Aug. 4.

Bruce McCurdy said he has no idea what happened to the fence, saying it could be buried under the sand or could have been taken away by someone else.

Gullong plans to proceed with his lawsuit, saying that among other issues it alleges, the harassment is ongoing.

Beachgoers have claimed that the McCurdys routinely yell at people walking across or sitting on the beach in front of 99 Plum Bank Road. In a video reviewed by Harbor News, a woman shouts obscenities from the house at Saybrook resident Natasha Simes-Vandersloot and her children, telling her child directly to “[g]et the f— out.”

Bruce McCurdy told Harbor News that he doesn’t believe the video exists. People who do not comply when asked to remove themselves from his family’s property “might get addressed in a more abrupt manner,” he said, but he insisted that the description of the video was fabricated.

Allegations of aggressive behavior on the part of himself or his family members are from “a bunch of people who are annoyed that we own property next to the Town Beach,” he said. “They don’t like that.”

The McCurdys have been known for years to call the Old Saybrook Police Department (OSPD) to have people they deem trespassers removed. Simes-Vandersloot is among a number of beachgoers who’ve said that, before this summer, the police have always sided with the McCurdys, demanding that beachgoers move to another part of the beach.

OSPD Chief Michael A. Spera denied this in a July phone call with Harbor News, saying that police records show that police officers called to the scene by the McCurdys have never demanded that beachgoers move. The records Spera provided in response to a request were from 2020 only and did not include any from previous summers.

Among other recollections, Simes-Vandersloot said that she was on the beach about five years ago when an Old Saybrook police officer demanded that a man in a wheelchair leave the beach in front of 99 Plum Bank Road. She argued with the officer and had difficulty explaining to her children why the police would do something that was so clearly unjust, she said.

“We were outside the fence there that year,” she recalled. “We were outside what they claimed to be their property.”

The Survey Says...

Gullong, for his part, does not believe the survey is accurate.

“We are going out to mark off exactly where the HWM is,” he said.

“In general, if an area is regularly wet by the tides, you are probably safe to assume that it is in the public trust,” according to the DEEP website. Several photos from this summer show the tide extending well beyond McCurdy’s fence.

Gullong is “very suspicious of the survey submitted” by the McCurdys. “It shows beach grass where there hasn’t been beach grass for years.”

This indicates that the surveyor used an earlier survey and updated it, rather than creating an entirely new one, he said.

Indeed, the new survey shows “dune grass” extending from the seawall all the way to the fence. Photos from this summer show some grass, but it does not extend to the fence.

CCPAD founder Kathryn Lee Cannon agreed with Gullong, saying that the survey “is not worth the paper it’s written on” and does not accurately reflect the MHW mark.

“Virtually all the sand in front of...McCurdy’s property with the exception of a tiny corner is what they call ‘wet sand’ on a regular basis,” she said. “Connecticut state law indicates that any sand that gets wet with regular tides or is below the line of washed-in debris is safe for the public to legally use.

“My understanding is that the police are now supporting the public right to this area but I’ve had individuals tell me that in the past the OSPD has not done so and have often asked the public to leave the beach in front of 99 Plum Bank more to keep the peace than because it was a legally enforceable issue,” she continued. “CCPAD is encouraged that the local police department understands and is now defending the public right to access.”

Zawoy, who planned to meet with the homeowner on Aug. 19, said he planned to raise the issue of the dune grass, although also said that it is “typical to update an old survey.”

“However, the dune grass may have been an oversight by the surveyor, who was paying attention more to the tide lines,” he said. “I do not have any reason at this point to think that the MHW line is wrong.”

Bruce McCurdy maintained that the town groins are accelerating the erosion of his property as well as others along the beach.

“Those groins that stick out [into Long Island Sound] build sand on one side and erode sand on the other side,” he said, and this is clear from Google aerial photos.

His neighbors agree, McCurdy said.