In a rare decision, the Maine Supreme Judicial Court has agreed to hear oral arguments next month from attorneys who will ask the court to reconsider its ruling that the public does not have the right to use Goose Rocks Beach in Kennebunkport.
The ruling has raised questions in southern Maine’s beach communities about how to protect public access to sand beaches that the court says are privately owned.
On Feb. 4, the state’s highest court vacated a lower court’s finding that the Goose Rocks Beach neighborhood, the town and the public have the right to use the beach between the low-water mark and beachfront property owners’ sea walls and lawns. The Supreme Judicial Court ruled that private property owners control use of the beach all the way to the low-water mark.
The town of Kennebunkport and the state filed motions earlier this month asking the court to reconsider its ruling, which was unanimous. Town attorney Amy Tchao has asked the court to clarify the ruling and whether it intended to overturn previous rulings about beach access.
Matthew Pollack, clerk of the Supreme Judicial Court, said it is “very rare” for the court to hear oral arguments on a motion to reconsider a ruling. It last did so in October 2011, he said.
Tchao said she is glad that the court decided to hear the arguments.
“This is a decision that leaves the public use of the beaches to the whim of private beachfront owners regardless of how long the public has used the beach,” she said. “Is that a good decision, for the state to leave our most precious natural resources completely in the hands of private landowners who come and go and can change their mind on a whim?”
Ben Leoni, an attorney representing property owners at Goose Rocks Beach, said that although the beach is private property, the owners have and will continue to allow reasonable recreational uses.
“The town repeatedly says that public access is lost. It is not. This is a scare tactic,” he said. “Private landowners continue to allow reasonable recreation uses over private property, just as they do all over Maine for walking, hiking, fishing or any other recreational use.”
Oral arguments are scheduled for April 9.
Goose Rocks Beach is a 2-mile-long beach bordered by 110 parcels of property with 95 separate owners. Nine of the lots are owned by the town or by the Kennebunkport Conservation Trust.
A section of beach a little wider than two football fields is now used by the public.
The court case is the latest in a series of disputes to test the high court’s interpretation of Maine’s 370-year-old “Colonial Ordinance.” The ordinance, adopted when Maine was part of Massachusetts, protects public access to the state’s intertidal zone for “fishing, fowling and navigation,” but says nothing about sunbathing, swimming or surfing.
Kennebunkport argued that the public had effectively earned access to the beach after decades of uninterrupted use for all kinds of recreation.
A York County Superior Court ruling in 2012 supported public access, and said that the town, the public and hundreds of back-lot owners in the Goose Rocks Beach neighborhood have the right to use the beach. The Supreme Judicial Court ruling in February overturned that decision.
In response, other coastal towns have been re-evaluating their own shorelines and ways to preserve public access to beaches that draw tourists and serve as the foundation of local economies. In York, for example, one of the selectmen has proposed that the town buy sections of the beaches that aren’t already owned by the public.
Gillian Graham can be contacted at 791-6315 or at: