SOUTH PORTLAND, Maine — Attorneys on opposing sides of the Goose Rocks Beach lawsuit have differing opinions on the broader effect the litigation could have, as well as the plan of action for moving forward at the beach.
Kennebunkport Town Attorney Amy Tchao and Ben Leoni, an attorney for the plaintiffs, discussed the case as part of the Maine Beaches Conference, held on the campus of Southern Maine Community College on Friday, July 12.
In a session of the daylong conference titled “Private Property, Public Rights: Ownership and Public Use of the Maine Coast,” Tchao and Leoni reviewed the Goose Rocks Beach lawsuit — a case in which a York County Superior Court judge sided with the town’s claims regarding prescriptive easement from the water to the seawall, ruling that the public has rights to use the beach for recreation.
The attorneys also shared their thoughts on the pending appeal before the Supreme Judicial Court, which has been filed by plaintiffs who seek to protect their property rights, and the first summer following the town’s implementation of a beach use agreement and ordinance, both approved by voters last August.
“The agreement was about beachfront owners trying to strike a balance between respecting private property rights and also preserving public use of the beach,” said Tchao, an attorney with the Drummond Woodsum Law Firm. “It allowed for public use under certain circumstances of portions in front of these lots. For those who signed on, everyone was agreeing that they would follow the ordinance, they would talk about management, there were town obligations to enforce the ordinance so that they use of the beach would be peaceful and respectful to the owners and the community. It is a process that very much was a community building process.”
One of the pieces of the agreement is that the more than 60 beachfront owners who have signed it will have a 25-foot reserve area — a stretch of sand adjacent to their seawall or grass edge. If the tide enters the reserve area, it is reduced to 10 feet. While beach visitors are always permitted to walk through a reserve area, under the agreement a beachfront owner has the right to request that visitors sit or play outside of it.
While Tchao called the town’s agreement and ordinance a “community-based solution” that acts as a blueprint for use of the beach, Leoni, an attorney with Curtis Thaxter Attorneys at Law, said it is “a real mess.”
Though more than 60 property owners support the agreement, there are 110 beachfront property owners.
“In terms of an ordinance that police have to enforce, that private property owners have to abide by, that vacationers have to try to figure out, this is a real mess and I don’t know how you enforce that,” he said. “When stakeholders strive for an agreement, they need to strive for consensus.”
Leoni criticized the process and said while the lawsuit spanned over three years, the settlement discussions, which led to the beach use agreement and ordinance, were done just over a month before the three-week trial was set to begin, and that the beachfront property owners who signed on to the agreement were not a part of the litigation, but began to fear for their own property rights.
Argued Tchao, while “not perfect,” the agreement and ordinance provide a roadmap for how the beach should be used.
“When you’re done with a trial and one party wins and one loses, it’s how do you pick up the pieces,” she said. “This is trying to balance the rights of property owners while maintaining the right of the public, which has had a longstanding relationship using this beach.”
Many are watching the case closely as the appeal before the Supreme Court moves forward. Among those concerned, Leoni said Friday, is the Maine Snowmobile Association, which fears that, if upheld, the case may affect where snowmobiles are allowed to travel.
The town of York is watching the case as it could have implications for a battle over whether York’s historic Cliff Walk will remain open to the public. Property owners along the walk have blocked access with a fence and by filling in steps with cement. Voters in May approved setting aside $50,000 to cover legal fees for the town to fight to keep the path open.
Leoni said it is important to note that the case is not just about beach use, but applies to land throughout the state.
“In this case, you don’t have property owners saying ‘We’re going to privatize the beach, this is my slice of heaven you’ve all got to get off.’ That’s never happened. They’ve only objected to objectionable behavior,” he said. “This is a property rights case that applies to all of Maine. This property rights issue just happens to be, in this case itself, on a beach.”