2012-12-14 / Front Page

Motion paves way for appeal

Goose Rocks Beach property owners expected to file by Dec. 20 deadline
By Tracy Orzel
Staff Writer

KENNEBUNKPORT – Superior Court Justice G. Arthur Brennan granted a motion by the town of Kennebunkport for final judgment in the Goose Rocks Beach lawsuit, paving the way for Goose Rock’s Beach property owners to appeal his October ruling to the Maine Supreme Judicial Court.

The decision was handed down on Nov. 29.

In October, Brennan issued a partial judgment in favor of the town of Kennebunkport, finding there is an easement over Goose Rocks Beach properties, thereby ensuring the beach would remain accessible to the public.

A prescriptive easement gives someone the right to use property they do not own.

If the Supreme Judicial Court reverses Judge Brennan’s October decision and finds an easement does not exist, then there will be further litigation regarding the beachfront property owners’ titles.

However, if the Supreme Judicial Court upholds the October ruling, then the town has agreed, through a conditional stipulation, that it will not contest the property owners’ title to their beachfront property. The conditional stipulation was filed by the town and incorporated into the final judgment.

Kennebunkport town attorney Amy Tchao said, “We’re very pleased that the court granted our motion to make this a final judgment and to at least potentially avoid a title trial which would have delayed things considerably.”

“From a financial perspective the judge’s order means that taxpayer funds will not have to be expended on a title trial unless it is necessary to do so in the future,” said Town Manager Larry Mead.

Ben Leoni, one of the attorneys representing the beachfront property owners, said they intend to file an appeal by the Dec. 20 deadline.

Once a notice of appeal is submitted, then both parties will make their respective arguments in their briefs. Once the briefs are submitted, the Supreme Court will review them and set a date for oral arguments.

“Typically that’s within a year of the notice to appeal but it could take some time,” said Leoni. “Because Justice Brennan has entered final judgment, if we win the appeal now there’s going to be two appeals to the Supreme Court.”

Eleanor Scribner is one of the beachfront property owners and has a deed to the land that goes back to 1898.

Scribner said she was disappointed with the final judgment. Although she hopes it’s successfully appealed, she said she doesn’t have high hopes.

One of Leoni’s concerns is how lengthy the appeal process can be.

“If we win, this entire trial is just being delayed for a year to two years and that costs a lot of money.

“What happens is, if we win the prescriptive easement, everybody’s got to come back, and say, ‘OK, now we got to figure out who owns title.’ We’ll have a whole new trial and whatever the decision is on title, I’m sure its going to be appealed, so then we’re going to go to the Supreme Court again,” said Leoni.

Tchao said the town is anticipating an appeal.

“The law court tends to defer to factual findings made by trial courts. The standard of review is very deferential on the facts and these things are very fact driven, at least with respect to the finding of prescriptive easement, so I would say that we’re certainly cautiously optimistic.”

Tchao added that the town of Kennebunkport has never been interested in owning the title of the beach.

“The town’s goal in this litigation and defending against this lawsuit, has always been to maintain and defend the public’s right to use the beach for recreational purposes, even if the plaintiffs own it,” said Tchao.

Tchao said the case could have other implications by giving the law court the opportunity to further explain what rights exist in the intertidal zone for general recreation beyond fishing, fowling and navigation.

“Whether the high court decides to do that I don’t know,” said Tchao.

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