Court’s decision about accessing Kennebunkport private beach is good news for landowners, organizations say

People walk on Goose Rocks Beach in this November 2013 file photo.
Jennifer Feals | York County Coast Star | York County Coast Star
People walk on Goose Rocks Beach in this November 2013 file photo.
Posted Feb. 09, 2014, at 2:35 p.m.
Last modified Feb. 09, 2014, at 3:28 p.m.

PORTLAND, Maine — The Maine Supreme Judicial Court’s decision last week in a case about the public’s access to a Kennebunkport beach was good news for landowners around the state, representatives of two organizations that filed “friend of the court briefs” said last week.

By overturning a lower court decision about the public’s right to recreate on Goose Rocks Beach, the justices “reaffirmed the long-standing principle of Maine law allowing private landowners to permit public recreational use without concern that they will lose their property rights,” said Patrick Strauch, executive director of the Maine Forest Products Council.

“The Maine Forest Products Council joined the case as a friend of the court because we were concerned about the broader policy implications of these issues and their possible effect on small and large forest landowners,” Strauch said last week in an email.

In essence, the court said that nothing will change, according to attorney Brian Winchester of Augusta, who represented the Maine Snowmobilers Association. It also filed a “friend of the court” brief in the case.

Property owners still have the legal right to give relatives, friends, neighbors and strangers permission to use their land for recreational purposes. If people behave badly, landowners may rescind that permission, Winchester said.

The concerns expressed by both groups stemmed from the 2012 decision issued in York County Superior Court by Justice G. Arthur Brennan that appeared to grant the public an easement on Goose Rocks Beach without specifically stating that was his intent, Winchester said. If the law court had not reversed that decision, it might have been more difficult for landowners to refuse to allow people to use their property for recreational purposes if the land traditionally had been used that way.

An easement is a legal term that means a right to use the property of another for a specific purpose, according to Black’s Law Dictionary. For example, easements legally allow two property owners to share a road or driveway, allow a municipality to install sidewalks and allow people who do not own waterfront property but live close to a lake or pond to access the water across private property. To dissolve an easement often requires the approval of a judge.

Snowmobile trails in Maine often are built over private land with the owners’ permission and an understanding that the club will maintain the trail and people using the trail will behave respectfully, according to Winchester, who belongs to a snowmobile club in central Maine. A landowner would be within his or her rights to rescind that permission if the trails weren’t properly maintained or snowmobile riders littered or behaved badly.

“Often times these agreements are made with a handshake, although a better practice would be to put something in writing,” the lawyer said. “An easement would take away or limit the rights of that landowner. If there were easements on someone’s property and, then, there were problems, the people using the land disrespectfully could say, ‘There’s an easement, you can’t kick us off.’ Landowners don’t want to have to worry about that.”

The Conservation Law Foundation also filed a “friend of the court” brief in the case but its concerns are about access to the ocean. The organization wants the court to broaden the types of activities allowed in the intertidal zone — the part of the shore above water at low tide and underwater at high tide, Portland lawyer Ivy Frignoca said last week. The state supreme court sent that question back to the lower court.

The Conservation Law Foundation had hoped the justices would address directly the Colonial Ordinance of 1647. It created a public easement on privately owned oceanfront property for fishing, fowling and navigation but not walking, running, swimming or picnicking. Maine and Massachusetts, which were one colony when the law was written, are the only states in the nation that allow such broad public access to the ocean across intertidal land.

“Common law has always allowed the public do other things in the intertidal zone,” she said. “We are disappointed the justices didn’t address this. We can only hope that in the future, the law court will resolve what the public rights are because right now, it’s pretty unclear what the public can do on the beach.”

 

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