KENNEBUNKPORT — The town of Kennebunkport is challenging the Maine Supreme Judicial Court’s ruling that the public has no inherent right to use Goose Rocks Beach.
While not an appeal, lawyers on behalf of the town have filed a motion to reconsider, which could prompt the Portland-based court to remand the case back to York County Superior Court in Alfred ”“ although the chances of that happening are uncertain.
Early in February, the Supreme Court reversed the Alfred court’s determination that the public enjoys a prescriptive easement, basically meaning that the historical use of the beach would justify the public’s right to swim, have picnics and otherwise recreate on the oceanfront strip. Because that decision was overturned, property owners now technically have the ability to ask beachgoers to remove themselves from the premises.
Brian Willing, one of the town’s attorneys, said the Supreme Court decision, written by Justice Ellen Gorman earlier this month, makes it unclear whether a similar case involving Moody Beach in Wells in 1989 is now no longer considered the precedent by which similar cases are judged.
In that case, it was ruled that the public has a prescriptive easement, and therefore has a right to beach access.
“It’s a little fuzzy as to whether the court is saying that the Wells Beach case is no longer the precedent,” said Willing. “If they’ve overturned that case, well, they’re the highest court in the land, and we’ll respect that.”
If they haven’t overturned the Wells case, said Willing, then one possible scenario would be to send the case back to York County Superior Court to admit that it erred in its judgment. In such a scenario, the case would not have to be re-tried, said Willing, as testimony has already been given and considered. Instead, the presiding judge would have to make a determination on public use on a lot-by-lot basis, rather than proclaiming a prescriptive easement on the entirety of the beach.
Willing said the evidence presented at trial would be sufficient to argue for public access on that lot-by-lot basis.
“We just wish the court was clearer, and we want clarification,” he said.
Another scenario, of course, would be for the Supreme Court to simply reject the motion.
Sydney Thaxter, attorney for the Goose Rocks beachfront homeowners, thinks this may be the case.
“This has no chance,” said Thaxter. “We don’t even have to respond.
“I assume the court will make a decision on this fairly soon, because they want to move on. They don’t want to have these things out there forever. All they have to do is say, ”˜Motion denied.’”
The impact on Goose Rocks Beach will be mitigated by a beach use ordinance that was crafted by Kennebunkport in 2012 in conjunction with a contingent of litigant landowners. The ordinance established a 25-foot wide private “zone” in front of each property, extending down to the water line, in which a landowner could determine who was allowed. The ordinance will remain in effect, and town attorney Amy Tchao said earlier this month that, despite the Supreme Court’s decision, over half of Goose Rocks Beach will remain open to the public.
Willing said the Supreme Court could rule on the motion in a matter of days or weeks.
— Staff Writer Jeff Lagasse can be contacted at 282-1535, ext. 319 or jlagasse@journaltribune.com.
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