2018-04-13 / Front Page

Goose Rocks access upheld

By Duke Harrington Staff Writer

KENNEBUNKPORT — It took nine years and about $1 million of taxpayer money, but the town of Kennebunkport has finally prevailed in the case of public access to Goose Rocks Beach.

Finally, that is, unless there is an appeal, which appears likely.

“It’s certainly in the cards,” said Benjamin M. Leoni, of Portland law firm Curtis Thaxter, on Tuesday. “We have not made a final decision, but I expect that to come in the next week or so.”

Leoni represents 23 beachfront property owners still in the case, which began in 2009, and centers on whether they, or the town, own all the way to the waterline. Previous rulings in the case, in 2012 and 2014, have famously involved interpretations of the public’s right to access private beaches between the high and low water makers for “purposes of fishing, fowling and navigation.”

The decision handed down in York County Superior Court by Justice Wayne R. Douglas on Friday takes the tidal water lines out of it.

In his 274-page ruling — based on 11 days of testimony and nearly 700 exhibits, going all the way back to the original 1684 deed from Massachusetts to the “town of Cape Porpus,” as it was then known — Douglas said 22 of the 23 property owners have failed to prove “through preponderance of evidence” that they own anything beyond the seawall.

The one exception is the easternmost lot, closest to the Little River, whose owners Douglas said were able to prove deeded rights to the low water line.

“The property owners have a big decision in front of them, such as will any of them be willing to sever a good part of their property off from what is described in the language of their deeds and are they willing to accept that what they own are now, in essence, no longer beachfront properties,” Leoni said.

Although such a filing is years away, depending on what happens next in the legal realm, property abatements are not out of the question, given the court’s assertion is that 22 of the lots are now considered “up- land” properties.

To date, the Goose Rocks lawsuit has been a potential precedent-setting case where Maine shorelands are concerned, but Leoni says Friday’s ruling could have a chilling effect for landowners statewide.

“I’ve been fielding calls since Friday from property lawyers around the state who are pretty darned concerned about what this means,” Leoni said.

“It means to us that you can’t rely on decades or even centuries of the property descriptions found in your deeds. What the court decided is that in order to establish title, you now have to go all the way back to the 1600s, to colonial times, when most people weren’t even literate. And if you can’t do that, then you can’t prove you own your own property. I think that’s the most problematic aspects of this case.”

Others, of course, see this ruling as a vindication of sorts.

“I am very happy and pleased with the court’s ruling,” Selectman Stuart Barwise said on Monday. “It’s been a long haul, but the townspeople, and anyone who loves Goose Rocks, should feel really great about this.

“The town made it really clear from the beginning that we really didn’t care who owned what, we simply wanted to preserve the public’s right to access Goose Rocks from end-to-end, along all two miles, in the way it always had been done,” Barwise said. “There was never any intent or interest in taking anyone’s property.”

In 2012, Kennebunkport reached an agreement with roughly 60 Goose Rocks property owners, recognizing their rights to the first 25 feet of dry sand past the sea wall. The public can still generally use that strip, but can be shooed off by a property owner, who does not necessarily have to give reason to compel local police to support the expulsion.

“They have to take an affirmative action to tell you that you’re not supposed to use that space. It’s not automatic, because it would be very hard for police to zero in on each individual parcel,” Barwise said.

The resulting beach use agreement also led to the formation of the town’s Beach Advisory Committee, which not only advises on access issues, but has been instrumental, Barwise says, in preservation of the beach, including protection of piping plover habitats.

The recent decision effectively means that the 22 remaining property owners —who Barwise said, “elected to see this lawsuit through to its conclusion” rather than join in the settlement — have lost even that 25- foot stretch.

“In retrospect, it really confirms that these 60 property owners made the right decision,” said town attorney Amy Tchao, on Monday.

“What’s important about this case is that the court, through an incredibly rigorous analysis, concluded the town’s claim that it actually has ownership of these beach areas going back to colonial times, is correct, and the landowners, by contrast, could not prove that they had title to the beach,” Tchao said. “But the town has never been in it for a land-grab. The town has always wanted to preserve the public’s longstanding history of use and enjoyment of the beach.”

Still, Barwise sought to strike a conciliatory tone.

“I can tell you this, the town is in no way interested — in my understanding and I’m just one guy — in perpetuating animosity between the parties,” he said. “We want to see everyone enjoy the beach from end-to-end without any difficulty or negativity. We are very happy to move forward as we always have wanted to, which is to respect each other and be good neighbors, and have a great day at the beach. Looking ahead, the beach use agreement is the model for how we hope and intend to operate the beach.”

Town Manager Laurie Smith told the Post Tuesday that the town has spent $1.25 million on the lawsuit.

“Yes, I do believe that was absolutely worth it,” Barwise said of the cost. “Goose Rocks is a resource that is unique in the world, certainly unique in Maine. It is a very special place. I can tell you that, apart from the geography, I am friends today with people from all over the world that I met there on the beach as a young child. It’s a place that really connects people and I can tell you I am looking forward to a time when, once again, Goose Rocks only has happy memories and happy connotations.”

As to how the lawsuit started, Barwise said, “I don’t believe there was a single precipitating event. “They sued us. There was a group of property owners who wanted to get the town to post no trespassing signs. They wanted us to exclude people in a way that had never been done before and, so, the town responded that they did not have the right to exclude people, that the public had a right to access the beach from endto end.”

However, Leoni says “there certainly was a trigger.”

There was a problem with several “very disruptive” beach-goers, he said, and when the residents complained selectmen ordered police to not intervene.

“There was a letter from the town attorney at the time that acknowledged the town did not own the beach and said the only way to preserve the public’s ability to go where it wanted was to not enforce private property rights in the area,” he said.

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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