2012-10-26 / Front Page

Judge favors public access

Goose Rocks Beach ruling made after extended court battle
By Tracy Orzel
Staff Writer


Robert and Mary Kelley often visit Goose Rocks Beach on weekdays, arriving at 8:30 a.m. after driving an hour and a half from their home in Massachusetts. (Tracy Orzel photo) Robert and Mary Kelley often visit Goose Rocks Beach on weekdays, arriving at 8:30 a.m. after driving an hour and a half from their home in Massachusetts. (Tracy Orzel photo) KENNEBUNKPORT – Superior Court Justice Arthur Brennan has ruled Goose Rocks Beach in Kennebunkport will remain accessible to the public.

The opinion came Wednesday, Oct 17 after a three-week trial, during which 66 witnesses testified the beach has been used for recreational purposes for decades.

Although a significant win for the town of Kennebunkport, the judge’s ruling doesn’t necessarily bring an end to the case.

The lawsuit was filed in 2009, when 29 beachfront residents sued the town of Kennebunkport, claiming ownership of the beach to the low-water mark.

“The town is very pleased with the results,” said Amy Tchao, the attorney who represented Kennebunkport.

The town has regulated use of Goose Rocks Beach since the 1700s, establishing parking regulations, maintaining public access the beach and providing extra police presence in the summer.


Kennebunkport Town Attorney Amy Tchao said she didn’t know why the plaintiff’s brought the 2009 lawsuit after decades of public use. “From the town’s perspective nothing had changed,” she said. (Tracy Orzel photo) Kennebunkport Town Attorney Amy Tchao said she didn’t know why the plaintiff’s brought the 2009 lawsuit after decades of public use. “From the town’s perspective nothing had changed,” she said. (Tracy Orzel photo) “What I can tell you is, this community has had a long history, going back generations, at least 100 years of harmonious use of this beach” said Tchao. “In fact, a judge quoted that it was only this litigation that has undermined the tranquility of the beach.”

The lawsuit has created tension within the community between beachgoers and several beachfront property owners.

“Thank goodness we can access it,” said Mark Fabian, a resident of Montreal who visits Goose Rocks Beach with his wife every few years.

“They have beautiful homes and they want the beach, but the beach is everybody’s,” said Mark. “Then they could say the water is theirs. It keeps going,” referring to the beachfront owners.

Though most local residents were pleased with Brennan’s decision, many understood the property owners’ concerns.

Robert and Mary Kelley travel an hour and a half from Massachusetts to Goose Rocks Beach 15 times a year.

“We come here a lot. It’s a beautiful beach,” said Robert Kelley, adding that the beach gets crowded in the summer.

The couple said they were pleased with the judge’s decision.

According to the court’s opinion, no trespassing signs were used, but they were generally placed to prevent people from walking on private property or using private ways to and from the beach, not to prevent public use.

Ben Leoni, an attorney representing the property owners, has been working on the case for more than a year. He said they plan to appeal once the title dispute portion of the trial is over, during which beachfront owners hope to establish property rights.

According to Leoni, the lawsuit is not about trying to prevent the public from accessing the beach, but rather establishing and enforcing private property rights. Leoni cited cases such as beachfront owners not having room to sit on the beach due to crowds and beach goers throwing sand and playing loud music.

“The beachfront owners simply want to ask them to move or leave or to turn down the music,” Leoni said.

“There were a lot of claims that the court is dealing with, both for the plaintiff and for the town,” said Brian Willing, lead trial counsel for the town of Kennebunkport.

Previously, 63 beachfront owners entered into a settlement regarding a Beach Use Ordinance adopted by the town. Pursuant to the Beach Use Agreement, the ordinance protects wildlife, regulates regulations for recreational use and maintains the beach, while respecting private property rights of beachfront owners. Elections will be held for a Beach Use Advisory Committee. Kennebunkport Town Clerk April Dufoe confirmed the committee will have eight members: four elected by beachfront owners; two by back lot owners; one chosen by the Kennebunk Board of Selectmen; and one voted at-large in the November election.

According to Willing, once the advisory committee is elected, members will address all beach-related issues going forward.

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