2014-02-14 / Community

Town ‘baffled’ by court’s beach ruling

By Alex Acquisto
Staff Writer

KENNEBUNKPORT — The Maine Supreme Judicial Court on Tuesday, Feb. 4 revoked the public right to access Goose Rocks Beach in Kennebunkport, ending a court battle between 29 owners of property fronting the beach and the public that dates to 2009.

The recent ruling overturned a previous decision made by the York County Superior Court in October 2012 that awarded the public “a recreational easement over both the intertidal and dry sands portion of the Beach,” according to the decision.

Goose Rocks Beach spans two miles of coastline and has five access points. The beach has been used by the public for more than a century. The decision states, “In colonial times, the Beach was used as a public highway as well as for harvesting seaweed, clamming, driving livestock and providing access to marshland for cutting hay. Starting in the 1800s the Beach became a popular tourist destination, resulting in the construction of hotels and guesthouses, a bowling alley, a casino, restaurants, and ‘auto-trailer’ camps on the land abutting the Beach. The court found that from the late 1800s through the 1940s, the Beach was used ‘for a full range of recreational activities, including walking, swimming, sun bathing and a variety of beach-related games.’”

The York County Superior Court, in 2012, found that “from the early 1990[s] the Town has consistently encouraged and facilitated the use of the Beach by the general public.”

In conjunction with public use, the town has enforced regulations and subsidized services on the beach.

Historically, the public has not been required to seek permission from residential abutters to access the beach for general use.

The decision made on Feb. 4 made national news because it set a precedent.

“Public use of beaches is at stake as a result of this decision. We are now making the public use of beaches at the whim of private property owners,” Kennebunkport town attorney Amy Tchao said.

Tchao cited the 2000 Maine Supreme Judicial Court decision in Eaton vs. Town of Wells. It granted a prescriptive easement to the public based on “a long history of continuous public use and continuous town presence and control,” Tchao said.

Similarly, in the case of Goose Rocks Beach, the town of Kennebunkport has maintained the beach monetarily by providing lifeguard services for more than 40 years — from the 1950s to the 1990s. The town has maintained cleanliness of the beach and Goose Rocks Beach ordinances demand town-subsidized police patrol.

In recent years, said Kennebunkport Police Chief Craig Sanford, “Goose Rocks Beach ordinances have required us to have someone on the beach from June 15 to Labor Day.”

Typically there are several officers — one on a bike, one monitoring the parking lots and issuing parking tickets, one officer on the beach, and revolving patrol units.

Sanford said he doesn’t know what this new ruling will demand of the police department insofar as enforcement. “Right now, I think we’re going to be business as usual. We’ll wait to hear from the town elders and sit down with our legal advisors and see where they’re going to go with us,” Sanford said.

“I do think what’s very troubling about this case is that it could set precedence on other beaches in Maine and I think it very likely will,” said Tchao. “It is a radical departure from anything this court has done. It’s a radical departure from prior court precedents that grant public beach access in the state of Maine. The town is certainly disappointed with the decision.”

A handful of property owners on Goose Rocks Beach, who own about 60 percent of the beach, will allow the public to use what is now their portion of the beach.

“Public prescriptive easement isn’t taking ownership away from property owners,” Tchao said. “All it says is, there are rights in the public to use that private property in certain ways depending on how deep the roots are and how long the public has used it.”

Allen Daggett, vice chairman of the board of selectmen, said, “All I can say is we are really disappointed. The decision really baffled us.”

The board of selectmen was scheduled to go into executive session on Tuesday, Feb. 11 with Tchao to discuss the court’s ruling.

“I can tell you this much, the beach is very important to us,” Daggett said. “And it’s very important to the town.”

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