Goose Rocks Beach Access Case Comes Before Maine High Court

Apr 10, 2014

Goose Rocks Beach, which is the focus of a court battle over public access.
Credit Tom Porter/MPBN

The dispute goes back nearly 10 years.  But two months ago, the Maine Supreme Court sided with the property owners,  overturning an earlier lower court decision, which found that the public had established an easement to the beach "by custom," - that is, by having used it consistently over the last 100 or more years.

In the latest development, the Supreme Court granted a request by town and state officials to reconsider the motion, and oral arguments were heard on both sides.

Amy Tchao is an attorney for the town of Kennebunkport. "The beach has been used for over a century, and has been maintained and controlled by the town through lifeguards and police officers on the beach for decades. And we wouldlike the court to find that there is a public prescriptive easement on Goose Rocks Beach."

Tom Porter at Goose Rocks Beach: "Well, I'm standing here at the end of Goose Rocks Beach. It's a long sandy beach and you can see what all the fuss is about - it's a beautiful spot, and no doubt a very nice place to own a home, if you can afford it."   

And much of the beach is hard to access without walking through people's private property - though there are a number of public access points, and Tchao admits that property owners have, so far, been amenable to having well-behaved members of the public use the beach.

But - and here's the rub - the property owers want public access to be, effectively, with their permission. "It may be that they won't kick people off, but they want the right to be able to do that," Tchao says.

"Long after the court case, we are all going to need to live and work together," says Laurie Smith, the town manager of Kennebunkport, a community where this dispute has, in some cases, turned friends and neighbors against each other.
The position of the town, she says, is that residents whose homes back onto the seafront need to come to terms with the fact that they don't own any of the beach.

"I would say that we don't have any evidence at this point that it is their property," Smith says. "And that's part of what the court decision will be about, eventually."

"I have a deed to this property. Somebody's saying they want to take rights away from me. What am I going to do? This is America. I"m going to go fight for it, and I'm going to fight it in the courts," says Bob Scribner, whose family has owned a property on Goose Rocks Beach for over 100 years.

Scribner says that while it is technically the case that a beachfront property owner may bar the public from accessing the sea, this has never happened. The court case, he says, is a needless argument that has left a bitter taste in the mouth for many residents.

"I'm upset. I've lost  a couple of really good friends through this ordeal - people that I grew up with that I have known my whole life, and we don't even socialize any more," Scribner says.

Ben Leoni, the attorney representing the propery owners in the case, says the legal implications reach far beyond Goose Rocks Beach. "What the town is arguing is that longstanding public use of somebody's private property can turn that property into public property," Leoni says. "And that's bad in Maine for a number of reasons."

Maine, he says, has a tradition of encouraging private landowners to allow public access to their private property.

He admits it's a grey legal area, but is concerned that a decision against the beachfront property owners has worrying wider implications:  It could, he says, dissuade major property owners like paper companies from allowing reacreational activities on their land. And that, says Leoni, could create serious problems for tourism in Maine.

"So I think in this case, even though the town is heralding this as a case to benefit public access, the reverse could actually be true," Leoni says.

Now that oral arguments from both sides have been heard, the final decision on the Goose Rocks Beach case now rests with the Maine Supreme Court.

View the Maine Supreme Court Feb. 4 Goose Rocks Beach decision.
 

Photos: Tom Porter