The Rocky Point Avenue Extension:
A Case Study in Opportunities Given, Taken and Lost

by Patricia and Edward Shillingburg © 2003

    Access to water on the Island in the early days was essential because the water was the only highway, indeed a public highway, to reach other parts of the Island or to take crops and fish to market and obtain supplies in Sag Harbor and Southold.
    Everyone on the Island before 1870 made his living as a farmer and as a mariner. Access to the sea was as important as was the land. As waterfront began to be treasured by summer visitors, developers incorporated Town Landings to provide access to the water for their inland purchasers. In addition, property owners desired water access for the fire departments who, having no access to piped water, relied on Bay water to fight fires. Town Landings for public use were an integral part of all summer home developments.
    In his 1889 prospectus, John Lott Nostrand, for instance, boasted that “West Neck Park is most desirably laid out in 800 Villa plots of about one acre, equivalent to 20 city lots each, nearly one half of which have a water frontage.
    “The rear plots are generally at a higher elevation, overlooking the front plots, and all have an extended view of the surrounding bays, the ocean, and Long Island Sound.
    “The rear plots have water privileges almost equal to those directly on the water front, at the foot of the streets, at the proposed Beach Park, and on such plots directly on the water as will be reserved for their use and benefit...”
    This paper is about the extension of Rocky Point Avenue between Nostrand Parkway and the Bay (the “Extension”), in the Nostrand development of West Neck Park. It was the next major development after the Methodists came to the Heights in 1872 and the Bostonians to Manhansett in 1873.
    West Neck Park provided for public access to the Bay at Poplar Avenue, Rocky Point Avenue (at the north end), Forest Avenue, Belvedere Avenue, Rocky Point Avenue (at the south end), and Park Place (now Bootlegger’s Alley) and equally public access roads throughout what is now known as Silver Beach, which in 1888 was a part of the West Neck Park development. The developer wanted to make sure that his interior lot owners had ample access to the water.
   
1. The 1888 Subdivision and the Initial Deeds
    Frances Roe Kestler in her book on Westmoreland Farm, tells us that John Lott Nostrand (1830-1900) acquired 635 acres in West Neck before 1886. Mr. Nostrand was a civil engineer; he had been the City Surveyor in Brooklyn since 1854 and was prominent in business circles there.
    In 1888 Mr. Nostrand filed a development map for 230 Villas in an area he called West Neck Park with the Clerk of Suffolk County (No. 47) (the “1888 Map”) in which the Rocky Point Avenue started on the Bay at Painted Rock just south of the Stearns estate (now Camp Quinipet), crossed Nostrand Parkway at its north end, eventually turned south and ran parallel and east of Nostrand Parkway until it made a 90 degree turn west, again crossed Nostrand Parkway and  extended west to the Bay. The Extension is bounded on the south by the lot presently owned by Anne E. Schultheis and designated on the 1888 map as Lot One in Section Nine. (Exhibit 1)
    Mr. Nostrand deeded that lot to Samuel M. Meeker on December 1, 1888, describing the parcel by reference to its Lot and Section numbers on the 1888 Map and further describing it as lying south of Rocky Point Avenue and being roughly 480 feet along Rocky Point Avenue, 158 feet on the west side of Nostrand Parkway, 480 feet along lot Number Two, and 90 feet along the Bay, back to Rocky Point Avenue, about 1.28 acres. The deed went on to convey “the right, title and interest ... in and to one half of Nostrand Parkway and Rocky Point Avenue, in front of and abutting the premises herein conveyed, to the center thereof, Subject, however, to and for uses and purposes of a Public Highway for all such persons as are now, or may become owners of property at or upon the lands known as West Neck Park, and also for purposes of all Water, Sewer, Gas Pipes, Telegraphs, etc.”(Liber 314 Page 330)

 

    Anne Schultheis’s 1975 deed from Dorothy Prager (Liber 7841 Page 88) defines the borders of her property as beginning at a stake at the southwest corner of Nostrand Parkway and Rocky Point Avenue, running south along Nostrand Parkway 157.83 feet, west along the adjoining lot 434.63 feet, north along the Bay 93.36 feet, and east along Rocky Point Avenue [the Extension] 429.82 feet to the point of beginning. (Exhibit 3)
     The area to the north of the Extension is presently owned by Richard and Sandy Tarlow and is designated on the 1888 map as part of Lots 8-11 of Section 5. These lots were part of the property conveyed by John L. Nostrand to William Ulmer on October 9, 1888 (Liber 314 Page 35), consisting of the whole of Section 8 from Belvedere Avenue on the North to the Extension on the South. The 1888 deed included  “one-half of the avenues and roadways in front of, and abutting the premise herein conveyed, to the center thereof: Subject however to, and for all, uses and purposes of a Public Highway, for all such persons as are now, or may become owners of property at or upon the lands known as West Neck Park, and also for purposes of all Water, Sewer and gas pipes, Telegraphs, etc.”  Mr. Ulmer then divided the property between his two daughters and on October 25, 1900 he and his wife deeded to Caroline Weber the south half of Section 8 “subject, however, to all of the covenants and restrictions contained in deed recorded...” (Liber 500 Page 419)
    The March 2, 1983 deed to Richard and Sandy Tarlow for this property describes the southerly boundary as Rocky Point Avenue [the Extension], running 433.94 from Nostrand Parkway to a bulkhead at the Bay.
    Mr. Nostrand sold other portions of the mapped subdivision to others, and after his  death in 1900 his interest in the remaining lots at West Neck Park were inherited by his son and daughter, Peter Elbert Nostrand and Ann Nostrand Debevoise and they sold off various lots to others, as did their children.

2. Subsequent Maps
    Beginning with a 1904 USCS Map of Shelter Island, and continuing with the 1915 Hyde Map and a 1972 USGS map, the maps show Rocky Point Avenue crossing Nostrand Parkway and continuing to the Bay. (Exhibit 5) (Exhibit 6)
    A 1963 aerial map shows the Extension unpaved, but set apart from both the lots to the north and the south. The Weber/Tarlow property to the north is heavily wooded to the lot line, and the Extension is treated differently from the Prager/Schultheis property, with the driveway intruding into the Extension, but less so than today. This map suggests that Mrs. Weber to the north never considered the Extension as partially hers.  However, Prager (now Schultheis) used the full width of the Extension, including the Weber’s half, for their access to their property rather than the Town maintained Nostrand Parkway. This photograph shows straight lines, and nature does not make straight lines. (Exhibit 8)
    The 1966 Shelter Island Almanac and Guide, published by the Shelter Island Reporter, stated on page 58, “Virtually every road on the Island leads to water and more than 40 points where road and water meet are designated Town Landings. (See Chamber of Commerce Road Map.) Their purpose is to provide residents of the township access to the water...”  A random selection of Chamber of Commerce maps, 1965, 1967, and 1976 all denote Rocky Point Avenue Extension as a Town Landing.

3. The 1917 Town Board Resolution and Town Code
    The minutes of the February 2, 1917 meeting of the Town Board provide: “Resolved: that the Superintendent of Highways be authorized to file maps on West Neck Avenue, Park Place, Nostrand Parkway, Rocky Point Avenue and Poplar Avenue to the Beach Road, and Prospect Avenue, Rocky Point Avenue and Belvedere Avenue to Nostrand Parkway as town highways.” A careful reading suggests that the Town did not take possession of the Extension. Peter Elbert Nostrand was a member of the Town Board at that time and offered the resolution which was seconded by Scudder Smith. (Exhibit 9)
    The present Town Code lists Rocky Point Avenue as a Fire Zone (§126-6, B, as amended 5-9-1978). “Fire zones 20 feet wide by 50 feet long shall be maintained.” This may have been intended to refer to the northern end only, at Painted Rock.

4. The Current Tax Map
    The current tax map at the Town Assessor’s office shows the Extension continuing to the Bay, north of the Schultheis property and south of the Tarlow property.  It is treated on the map just like all other Town Landings on the Island. It is officially 50 feet wide and 429 feet long (about one half acre) between Nostrand Parkway and the Bay. In interviews with both the Town Assessor and the Town Receiver of Taxes at the Town Assessor’s Office, we were told that the Schultheis’s and Tarlow’s pay real property taxes on their respective lots but not on their interests in the Extension.

5. The 1980 Abandonment Effort
     After Anne Schultheis inherited the property in 1975 the ownership of the Extension became an issue. Dr. Daniel Schultheis, her husband, began an abandonment procedure “to close a section of Rocky Point Road (sic.) which runs along the northern part of his parcel,” as had been formally done with Forest Avenue and the Belvedere Avenue Extension in 1972.  In a letter describing the process to the neighbors from Anton Blados, chairman of the Board of Assessors, dated August 25, 1980, Mr. Blados stated that the Town had two choices, “(1) Sign the certificate of abandonment and lose the R.O.W. [right of way] to the beach [or] (2) Take the matter to court and let the courts decide the outcome. To help us make the right decision, a letter from you, expressing your views and opinions, whether we should give up your right of access to the water, will be appreciated.”
    A number of neighbors responded in disbelief that Dr. Schultheis had a right to take the right of way. Marguerite Tighe, 26 Rocky Point Avenue, expressed their point of view in a letter dated September 5, 1980, stating: “Last year the section of Rocky Point Avenue west of Nostrand Parkway had a sign TOWN LANDING and I walked down this road. Recently, the TOWN LANDING sign has been removed and a sign PRIVATE PROPERTY - KEEP OUT has been erected together with a fence across the road ... Does he presume that we have already ceded this to him because he wants it?”
    A lengthy letter appeared in the Shelter Island Reporter on September 4, 1980, in which Scudder Griffing reviewed the history of roads in the West Neck Park area and Crescent Beach and reasoned that the situation was controlled by a 1896 court decision( incidentally involving John L. Nostrand)  concluding that the Town could reopen Shore Road (along present day Crescent or Louis’s Beach) after it had been in disuse for 40 years. Mr. Griffing went on memorably to note that “The lawyers apparently cannot see the forest for the FEES,” and concluded: “Now let the Town Board and the Superintendent of Highways clear the westernmost extension of Rocky Point Avenue to the water of all signs and barriers, surface it, and continue its use by the Townspeople for what it is, was and has been always, a Town Road and Landing.”
    The Town Board sought assistance from the Town Attorney Styvesant Wainwright II, the surveyor Roderick Van Tuyl, former Supervisor Evans K. Griffing, and attorney Andrew C. Ingraham, Jr. of East Hampton.   
    Mr. Harry Hicks, in a memo to Supervisor Barbara Keyser dated January 3, 1981, suggested that the Town could not prove that it had accepted the dedication of the Extension, and therefore it was not abandoned and a certificate of abandonment could not be given.
    The Assessor did not sign the Certificate of Abandonment, and Dr. Schultheis did not pursue the matter.
     Local firemen were very distressed when the Town Board did not pursue the right to the Extension in 1980.
   
6. The 1982 Proposed Becker/Weber Subdivision
    The rights of way and restrictions in the 1888 deeds resurfaced in 1982 when a proposed subdivision was submitted for the Becker and Weber estate into four lots, A through D. Lots C and D were the southerly portion of the estate, the present Tarlow property. The developer, Alturas Realty Co., using an October 25, 1943 survey of the estate and a pencil to describe the plan, included one-half of the Extension to enable Lot D to meet the minimum two acres (80,000 sq. ft.) required by the Zoning Law. Elmer Edwards III, the building inspector, in a letter dated November 26, 1982 declared proposed Lot D to be “illegal” because the Town Code specified that “Land in the bed of any street, right of way or waterway shall not be included in the area of a ‘Lot’.”  Mr. Edwards made it clear that the Extension was a “street” or “right of way.”
    The developer petitioned the Zoning Board of Appeals to accept the undersized 69,250 square foot lot. According to the minutes of the hearing on December 28, 1982, on file in the Shelter Island Building Department, Victor McCuaig, attorney for the developer, stated: “Before making any formal presentation, I would like to say what we are not here to do. One of the things we are not here to do is to interfere in any way with Mr. Schultheis’s use of his half of Rocky Point Avenue.”
    In his fairly long presentation, McCuaig offered:
    “One way is to make the determination that Rocky Point Avenue has never been offered for dedication to the Town of Shelter Island, has never been accepted for dedication, for 94 years has never been paved, even if paved would serve only the Weber property and the Schultheis property, both of which properties have frontage on Nostrand Parkway and don’t need any frontage on Rocky Point Avenue.
    “If it were paved to its extent, you would just drive off into the water. It doesn’t go anywhere. That’s why it never has been paved. It probably shouldn’t have been put on the map in the first place, it just looked pretty ..
    “...a second possible ground for relief here in our petition, and that is the finding by this Board that you could vary the provision in your ordinance that says you cannot count the land in the bed of a street.”
    The minutes continued, “Helen Cunningham, a neighboring property owner, referring to Mr. McCuaig’s comments about ‘the Schultheis half of Rocky Point Avenue, informed the Board that she had gone to Town Hall that morning and was given to understand that never would the Town give up the right to it and that it shouldn’t be referred to as the Weber or Schultheis half.”
    Mr. McCuaig responded that the road belonged to Weber and Schultheis, the Town had never dedicated it, and the “only possible interest of the public or somebody other than Schultheis or Weber in what looks like Rocky Point on these [1888] maps is a purchaser or successor of title to one of the original lots on the old filed map. An interest or right was created in one of those purchases to walk along Rocky Point Avenue to get to the water.”
    The minutes continue: “Mrs. Cunningham stated that she thought it was access to the public for a boat landing. Mr. McCuaig said that it was access to the public, but the public in this case was limited only to the people who were purchasers of lots on the old map, if you could trace titles down, which would be an impossible thing to do.”
    Robert Morgan, a member of the Zoning Board, asked if that was opinion or fact. Mr. McCuaig said, it was fact, and if the Town brought in a bulldozer it would be a “real dust-up.” He continued, “I suspect strongly they would have to resort to condemnation or some sort of settlement procedure with the abutting owners, because the Town definitely does not have title to Rocky Point Avenue and has accepted taxes on it for over 50 years.”
    Mr. McCuaig was asked if he had statements saying that Dr. Schultheis and the Webers had paid taxes on this, and he said “yes.”
    Hugh Luddecke, attorney for the neighbors, said that none of his clients objected to the Zoning Board allowing for the Weber half of the Extension to be used to create an 80,000 square foot lot; they just all objected to a substandard lot.
    Mr. Uhnak, another neighboring property owner, maintained that Dr. Schultheis had no rights to the road. He said that the Town owns the road according to the assessor. “It is a right of way to the water although it has never been opened up.” He had copies of his deed and a survey and said that if the Webers and Schultheis’s owned the road then his deed and survey were wrong because his lot was measured from Rocky Point Avenue.
    Roger Cullen told the Board that 18 years ago he was asked to locate all the Town Landings. There were supposed to be 57 of them, but no one could find more than 31.
    The minutes continued: “Mr. McCuaig submitted to the Board a certificate from the U.S. Life Title Insurance Company of New York dated April 1979 stating that title to [the Extension] was vested in Schultheis and Weber. Also that the 1979-80 taxes and all prior taxes for 20 years had been paid on their property. Also attached was the text of the Certificate of Abandonment, and Mr. McCuaig stated that it had never gone through because the Assessor of the Town declined to sign it.”
    Following the hearing, the Zoning Board members retired to review the memoranda and other documents submitted by the attorneys. When they returned, John Thomson, the chairman, “announced that the Board had come to the conclusion that there was no possibility of doing anything about using the road, and that the application would have to be denied.”
    On February 5, 1989, John L. Kirchner of 6 Rocky Point Avenue, wrote to the Town Board: “I would like to bring to your attention that the rights of Shelter Island taxpayers have been abused for too long a time. The takeover of Rocky Point Town Landing and approximately thirty five other Town Landings has to be confronted.
    “People who take over Town Landings have no legal right to them The town was not reimbursed for the land and no taxes are paid on such. To give up these lands in any way should be put to a vote by the people.
    “I was led to believe that the Shelter Island Town Landings were originally for the use of the Shelter Island Fire Departments as a source of water for fire fighting and also for use by taxpayers on Shelter Island who owned property inland.”
    The question of ownership and public access continued to fester. A few years later, Supervisor Hoot Sherman was ready to send in a bulldozer to open the public access to the Extension but was advised by the Town Attorney not to do so.

7. The 1999 Trespass Complaints
    In 1999 several members of the West Neck Park community tried to use the Extension to reach the Bay. The Schultheis’s called the police on several occasions to complain about vandalism and to have the trespassing neighbors arrested.
    Helen Rosenthal, Town Attorney, ordered a title search of the Extension. Robert J. Wallace, First American Title Insurance Company of New York, reported to her by letter dated January 27, 2000, “that it is our opinion that fee title vests in the adjacent land owners subject to the rights established by reservation in the original deeds out of the map developer.”
    In a supplemental letter dated February 15, 2000, Mr. Wallace continued “that the area in question is burdened by the easement rights of:
“(1) All of the lot owners on Map Number One of 230 Villa Sites situate at West Neck Park filed November 3, 1888 as Map #47.
“(2) All of the property owners in the area formerly known as West Neck Park as the area was known prior to 1888.
“(3) Possible rights of the Public since the original deeds out of the map developer referred to Rocky Point Road as a Public Highway (the term was capitalized).”
    On August 9, 2000, the Town Attorney advised the police that the issue of trespassing on the Extension was a civil matter between the neighbors and that the police were to take no action until the court ruled on ownership and right of way access.

8. The 1999 Law Suit
    Anne Schultheis also started a suit against her neighbors, Erik Floyd and Christine Houston, residing at 6 Rocky Point Avenue (Anne E. Schultheis v. Erik H. Floyd and Christine R. Houston, Supreme Court of the State of New York, Suffolk County Index # 99-27568), alleging trespass and seeking damages and an injunction. The allegations of the complaint, dated November 29, 1999, and presented by Attorney William W. Esseks of Riverhead, alleged the following:
    (a) The Extension is a “paper street” the southerly half of which is owned by Mrs. Schultheis by virtue of the principle that the owner of a subdivision lot bordering a street shown on the subdivision map takes a fee ownership to the center of the street (referring to Albany v. New York, 28 N.Y 2d 352, 356 (1971);
    (b)  At no time during the past 50 years has there been any visible physical right of way along the Extension, aside from the Schultheis driveway;
    (c)  Defendants since 1999 have wrongfully entered on the Extension and caused damaged to trees, shrugs and signs;
    (d)  Defendants’ hold no right of way or easement across the Extension; any rights previously associated with their property having been abandoned prior to the filing of the Batten Subdivision Map in 1985 [an area within Section 6 of the 1888 Map], of which their property is part; and
    (e) Accordingly, Mrs. Schultheis was entitled to a declaration that the Extension was not subject to any interest of the Defendants, treble damages for damage to trees and shrubs and a permanent injunction barring Defendants and related persons from entering on the Extension or damaging signs, trees of other things located on the Extension, plus costs of the action and disbursements.
    Mr. Floyd and Ms. Houston filed an answer dated May 24, 2000, presented by their attorney, Hiram D. Gordon of New York City, basically denying the principal factual allegations of the complaint, and alleging that the Town of Shelter Island had an interest in the property and should be made a party, the Extension is burdened by the easement rights of all of the lot owners on the 1888 Map, the Extension was referred to as a “Public Highway” in the deeds from John L. Nostrand and the Extension is burdened by the easement rights of the public, and the Extension is subject to an easement by prescription in favor of the residents of the Town because of their adverse use of the Extension for more than 10 years.
    The attorney for the Defendants, now reinforced by the Southampton firm of Bennett & Read, then gave notice to commence discovery. No further action appears in the court files.
*    *    *
    And that seems to be where the Extension stands today. We offer no conclusions other than to observe that (a) Mr. Nostrand’s effort in 1888 to designate the Extension as a “Public Highway” and to reserve rights in favor of purchasers of other lots located in West Neck Park seems to have failed; and (b) the Schultheis’s make full use of a half acre of waterfront real estate, pay no taxes on it, and deny the public the use they had from 1888 to 1980.