Thursday, June 20, 2013
PORTLAND – One chapter in the complex legal battle over Goose Rocks Beach in Kennebunkport drew to a close Tuesday as lawyers for the town, beachfront property owners and other parties argued about what rights the public has to use the beach.
This July 2011 file photo shows a small public path that leads to a small section of public beach at Goose Rocks Beach in Kennebunkport.
John Patriquin / Staff Photographer
This July 2011 file photo shows Goose Rocks Beach homeowner Mic Harris, who is one of many plaintiffs suing the town of Kennebunk for trying to expand the public's access to the beach.
John Patriquin / Staff Photographer
The central issue of the hearing in Cumberland County Superior Court was not ownership but whether the public has established the right to use the beach because of longtime continuous use.
The case also presents an opportunity for the state to revisit a landmark decision and argue for the public's recreational rights on beaches.
The adversaries in the dispute each contend they are trying to maintain the status quo.
Beachfront property owners say they are trying to protect property rights that the town suddenly threatened several years ago.
The town and a group of lot owners whose property isn't on the water maintain that Goose Rocks Beach has long served as a public beach and they are fighting to protect public access.
Melissa Hewey, a lawyer for Kennebunkport, said the best scenario would be a court ruling that a "public prescriptive easement" has been established for all of the beach -- the entire length and width.
"That would mean that people can continue to use the beach as they always have. Worst case is that the court rules the town hasn't proven that, and that means ... people could potentially kick people off the beach," Hewey said.
The dispute, which involves dozens of people and a countersuit, has its roots in a lawsuit filed by beachfront property owners in 2009. Their lawyer, Sidney "Pete" Thaxter, said Goose Rocks Beach has always been private but the town forced his clients into litigation by trying to assert control of beach property through the easement.
"It's like if somebody came and said, 'I own your front yard, and you can't mow it or sit on it unless I tell you you can.' It is their front yard," Thaxter said.
Tuesday's hearing followed a three-week bench trial over whether an easement has been established. The burden was on the town to show that the public has used the beach continuously for 20 years without permission from beachfront property owners while the property owners realized the use was happening.
The evidence presented during the trial included testimony about how people used the beach and postcards, photographs and other items documenting the scene on the 2-mile strand.
Thaxter said the town cherry-picked its evidence. He said much of the photographic evidence was taken of a section known as the "public beach," which is made up of lots owned by the Kennebunkport Conservation Trust.
The case provides a potential opportunity for the Maine Supreme Judicial Court to revisit a key decision about the public's right to use the intertidal zone, the area between the mean high- and low-tide marks.
The state is an intervenor in the case so it can argue for the public's right to use the intertidal zone for general recreation. Based on a Colonial-era ordinance, the public has the right to use the zone for "fishing, fowling and navigation."
Because of a 1989 supreme court case involving Moody Beach in Wells, those uses are still the standard for determining the public's rights to the intertidal zone.
"For the last 25 years, we've been trying to remedy that problem," said Deputy Attorney General Paul Stern.
Justice G. Arthur Brennan said he will try to issue his decision about the easement part of the Goose Rocks Beach case next month.
The ruling is unlikely to end the case. Another trial, dealing with ownership and titles, may be held, and appeals are expected.
Staff Writer Ann S. Kim can be contacted at 791-6383 or at:
Correction: A photo caption accompanying this story was revised at 10:58 a.m., Oct. 3, 2012, to correctly identify the subject as Mic Harris.