PORTLAND — Anyone who has followed the lawsuit over public rights at Goose Rocks Beach would likely agree on a few things: It was extremely divisive, protracted and extraordinarily expensive.
Although some believe this decision is bad for public access, the Maine Supreme Judicial Court unanimously reaffirmed the long-standing principle of Maine law that encourages private landowners to permit public recreational use without concern that they will lose their property rights.
Public recreational users like the Maine Snowmobile Association as well as large landowners in northern Maine joined beachfront owners in this lawsuit for that very reason: concern over the town of Kennebunkport’s position that recreational use of private property could lead to acquisition of a public easement, thereby galvanizing owners into posting their property in order to preserve their rights.
But the bigger impact of the lawsuit may be to expose what is at stake in disputes over private rights and public access, and to encourage communities, municipalities and landowners to explore collaborative alternatives to court. Collaborative solutions cost less than litigation, bring a community together instead of driving it apart, and present opportunities for more creative solutions.
In 2010, I authored an extensive legal article on resolving complex land-use disputes through cooperative agreements. The most basic elements are to include stakeholders with divergent interests, engage in an open and respectful dialogue and strive for consensus.
The Goose Rocks lawsuit provides some valuable lessons:
• Be proactive. Parties must openly address potential disputes between private landowners and public users before sides are chosen.
In 2005, a dispute arose at Goose Rocks over certain public conduct on private property. Instead of engaging in an open dialogue with all those concerned, the town of Kennebunkport strategically changed its long-standing policy of recognizing private property at the beach.
The reason, as evidenced in a 2005 town document, was to create a stronger “claim for a public prescriptive easement right in Goose Rocks Beach if the Town were to undertake litigation to establish one in the future.”
After discovering this document, which showed that the town was preparing for a lawsuit and no longer recognized private property rights, landowners had few choices under Maine law but to go to court to defend their property. The document also had the effect of destroying trust between landowners and the town.
The lesson? Staking out positions and preparing for a lawsuit before attempting to explore a collaborative solution will lead to a lawsuit, not a solution. Collaborative efforts – which rely on trust and mutual respect – should always come first.
• Keep it civil. The lawsuit generated a lot of discord in the community, which led to personal attacks and lost friendships. Negative public comments directed at other stakeholders can unravel trust and respect built at the negotiating table.
• Strive for consensus. Goose Rocks Beach comprises close to 110 individual properties. Notwithstanding court-mandated efforts on the eve of trial to work out an agreement, consensus was not a fundamental goal. And after three years of litigation, trust was hard to come by.
The result was a partial agreement between the town and some beach owners, leaving Kennebunkport with a “checkerboard” beach. This is not a workable solution for town regulators, landowners or recreational beach users.
Striving for consensus forces all involved to listen, understand and satisfy each party’s underlying concerns, and leads to a uniform result.
The reality in Maine is that owners of beach property own legally recognized private property. Arguing that private individuals should not own the beach is not going to change the law. Demanding that the court change the law so that recreational use of private property could ripen into a public easement would encourage landowners to block public access to preserve their property rights.
The clear alternative is to use the Goose Rocks experience as a chance for private landowners and municipalities to search for a more constructive solution.
Fortunately, many examples exist where collaborative, consensus-built solutions have resulted in communities that grew together instead of apart. Here in Maine, collaborative negotiation has resulted in public access to beaches in Kennebunk, Scarborough and other towns.
It may be that Maine needed the Goose Rocks lawsuit to force us to take another look at how we handle disputes over public access to private property. When we look back at the Goose Rocks case in 20 years, I sincerely hope that its biggest impact will not be the legal principles it upheld but the collaborative efforts it encouraged.
– Special to the Press Herald