PORTLAND, Maine — Both the town of Kennebunkport and a group of private property owners are claiming victory in a dispute between the two parties over public access to beach land after a Maine Supreme Judicial Court ruling on Tuesday.
The state’s highest court ruled the town could take its case back to the Superior Court level and argue, parcel-by-parcel, that the public has used the beach properties enough over the years to establish what’s known as a prescriptive easement over them.
The decision represents the latest development in a legal battle that has garnered headlines for more than five years and has reopened a centuries-old debate over public use of private beaches.
In early February, the Maine Supreme Judicial Court threw out a lower court ruling that the public and backlot owners have a prescriptive easement to access all of Goose Rocks Beach in Kennebunkport, where a string of at least 29 waterfront private property owners had claimed ownership and rights to refuse access to the sand.
But the town of Kennebunkport filed a motion urging the high court to reconsider its ruling, and the court agreed to schedule a new hearing in the case, which took place in April.
In the Tuesday ruling written by Maine Supreme Judicial Court Justice Ellen Gorman, the high court is sending the case back to the superior court level, where the town will be allowed to argue for the public’s access rights parcel-by-parcel.
“We understood that as a result of their earlier decision, the town wasn’t going to be given that opportunity,” said attorney Amy Tchao of the Portland law firm Drummond Woodsum, representing the town of Kennebunkport. “The court has certainly breathed new life into the town’s efforts to keep Goose Rocks Beach open to the public, as it has been for more than a century.”
Attorney Benjamin Leoni, part of the team from the Portland law firm of Curtis Thaxter, which represented the property owners, said Tuesday evening that while the court “opened one tiny issue” back up for the town to pursue, the panel largely sided with his clients.
“If you can even call it a victory for the town, it’s a very hollow victory,” Leoni said. “The court is creating an extraordinarily steep and uphill battle for the town. The court specifically said the town is not allowed to present any new evidence.”
Attorney Sidney “Pete” Thaxter, another member of the property owners’ legal team, told the Bangor Daily News that’s significant because the town had previously resisted arguing the case on a parcel-by-parcel basis.
“The town is only allowed to use the evidence already in the record to reargue facts for their case on a lot-by-lot basis. The problem for them is that the town never introduced any facts on a lot-by-lot basis,” Thaxter said. “Since the town consistently argued against trying the case on a lot-by-lot basis, there is nothing in the record to support such an argument. … They are now hung on their own petard.”
Leoni pointed out that the high court specifically wrote that the superior court may require the town to cover the property owners’ legal fees if it does decide to continue pursuing the case on a parcel-by-parcel basis at the lower court level.
Thaxter and Leoni have argued in the case that Maine’s system of giving private landowners the flexibility to allow the public recreational access to their lands without giving up legal authority over those lands is important to preserve.
If regular public use — by beach goers, hunters, snowmobilers or hikers — of private property would ultimately result in property owners losing rights over their properties, he argued, those owners would have to start blocking all access in order to prevent those losses of rights.
Tchao said the town has ample evidence to pursue parcel-by-parcel access if it decides to, and she noted that part of the overall legal dispute — a title trial in which the property owners must establish their ownership rights down to the lower water line — has yet to be adjudicated. The high court’s decision did not place the town in immediate jeopardy of covering the property owners’ legal fees in the title trial, which was due to take place before the prescriptive easement dispute made its way to the supreme court level.
She also said she has not yet consulted with the Kennebunkport selectmen to determine what the town will do next. Tchao said the town reached agreements in 2012 with more than 60 beachfront property owners to establish public access to about 60 percent of Goose Rocks Beach without revoking private ownership.
Tchao said the court case against the other about 30 private property owners is necessary in part to set a precedent, not only for the use of those Goose Rocks Beach lots but for all of Maine.
“Even if these plaintiffs believe that in their hearts and intend [to continue allowing most public uses of their beach properties], you cannot say the same thing about future owners of those properties,” she said. “Should we have a policy or a rule that leaves public access to our beaches, which are really important public resources, up to the whims of private property owners, regardless of the intentions of these particular plaintiffs?”
The case revives, once again, a dispute that has recurred throughout Maine history and can be traced back to the Colonial Ordinance of 1647, which established private land ownership rights all the way to the low-water mark but preserved public access for fishing, bird hunting and navigation.
More contemporary recreational beach activities were not considered by the 17th century rule.
The premises of the Colonial Ordinance of 1647 — without expansion to include walking, sunbathing or sports — were upheld by the Maine Supreme Judicial Court in landmark cases such as 1989’s Bell v. Town of Wells, which regarded public access to Moody Beach.