Sunday, March 9, 2014
If people were to set up a tent on the beach in front of Robert Almeder’s oceanfront home in Kennebunkport, Almeder would be within his rights to ask them to move.
This aerial view shows Goose Rocks Beach in Kennebunkport, where beachfront property owners have won greater rights over allowing public use of the beach.
John Patriquin/2012 Press Herald file
A ruling Tuesday by the Maine Supreme Judicial Court vacated a lower court’s finding that the public has the right to use Goose Rocks Beach. Kennebunkport’s attorney said the ruling could influence other disputes over public access rights in Maine.
Almeder was among 29 beachfront property owners named in the ruling, who now have the right to decide who can use Goose Rocks Beach – from the high-water mark to the low-tide mark – in front of their properties.
“We are very disappointed,” said Amy Tchao, the town’s attorney. “Everyone in the state should be disappointed. The court seems to be saying that it is impossible to establish a public prescriptive easement on any beach in Maine. This a radical departure from anything we’ve seen from this court.”
Tchao said the ruling appears to have overturned the decision in Eaton v. the town of Wells in 2000, in which the court said the town and the public have a right to use the dry sand portion of Wells Beach and the intertidal zone.
“This decision seems to be saying that even if you have established a century-long history of public use, all it takes is for one landowner to say, ‘No, you can’t use the beach,’ ” Tchao said.
The Supreme Court overruled a judge in York County Superior Court, who in 2012 ruled that back-lot owners in the Goose Rocks Beach neighborhood, the town and the public have the right to use the beach.
Goose Rocks Beach is a 2-mile-long beach bordered by 110 parcels of property with 95 separate owners. Nine of the oceanfront lots are owned the town or by the Kennebunkport Conservation Trust.
A section of the beach estimated to be a little wider than two football fields is now used by the public.
In October 2009, Almeder, who lives at the end of the beach, and other beachfront owners initiated proceedings against the town in Superior Court, affirming their ownership rights to the low-water mark.
About 200 other owners of property in the Goose Rocks Beach neighborhood, called back-lot owners, intervened in the case and filed counterclaims.
The Superior Court judge ruled in 2012 that the town, back-lot owners and the public have the right to use both the wet- and dry-sands portions of the beach.
But the Supreme Court ruled that the back-lot owners should not have been allowed to intervene and vacated the lower-court ruling.
Sydney Thaxter, the attorney for Almeder and the other 28 plaintiffs, said Tuesday’s decision doesn’t mean that the public won’t have access to Goose Rocks Beach.
Thaxter said the town-owned section of the beach will remain open, and beachfront areas, even those in front of his clients’ homes, will probably remain open to the public, provided the land is used in a reasonable way.
Thaxter, a Portland-based attorney, said it was the town of Kennebunkport that instigated the court battle, after it tried in 2009 to assert public-access rights over the entire beach.
“The town insisted on demonizing (his clients),” Thaxter said Tuesday night. “But they have a right to control some level of the activities that occur in front of their homes. They are not mean or nasty people.”
Thaxter said that, historically, beachfront owners have allowed public access to the property in front of their homes.
“They don’t want to fight. They love their neighbors. It was the town that started this,” Thaxter said. “Things won’t change at the beach this year, but it will if these property owners get abused.”
Tchao said there is some good news for the town in the Supreme Judicial Court’s decision.
In July 2012, then-Town Manager Larry Mead and the Board of Selectmen negotiated a so-called beach use settlement with 63 beachfront landowners. The agreement allows the public to use the beach in front of their homes as long as the landowner can, at his or her discretion, reserve a 25-foot section from their house to the ocean for their private use.
Mead, who is now Old Orchard Beach’s town manager, could not be reached for comment.
“As a practical matter, Goose Rocks Beach is a beach that will continue to see public use,” Tchao said. “It is truly the silver lining in this decision. I have to give kudos to the town for being creative.”
Dennis Hoey can be contacted at 791-6365 or at: