KENNEBUNKPORT, Maine — The Maine Supreme Judicial Court on Tuesday handed down a ruling vacating the public right to Goose Rocks Beach in Kennebunkport.
In a decision issued Feb. 4, the supreme court states that it has vacated “the judgment awarding the town and backlot owners a prescriptive easement over Goose Rocks Beach, and deciding that the public has a right to engage in ocean-based activities in the intertidal zone pursuant to the public trust doctrine.”
Kennebunkport Town Attorney Amy Tchao of the firm Drummond Woodsum said the decision is “very disappointing for the town.”
“Everyone in the state should be disappointed. As the court has written the decision, it appears to spell the end for prescriptive recreational easements on any beach in Maine,” she said. “It’s a radical departure from anything we’ve seen from this court so far.”
For the plaintiffs, attorney Pete Thaxter of Curtis Thaxter Attorneys at Law said the decision is a confirmation.
“Basically, the court has confirmed that for these owners, these 29 plaintiffs, that they own their properties. That there are no public rights on them,” said Thaxter. “What they said at the beginning was we owned the land. We have a right to control it. We allow our friends and neighbors access it, and that will continue.”
The state’s highest court has remanded any remaining courses of action relating to the lawsuit to Maine Superior Court for decision. The supreme court’s ruling says there were 63 claims related to the case and only 16 were decided during trial.
Tchao said she imagines that the court will set up a scheduling conference with attorneys to determine a future course of action.
The lawsuit began four years ago. While plaintiffs argued they were protecting their property rights, the town, backlot owners and the state argued for public access that they claimed has existed for years.
A judge in York County Superior Court ruled in October 2012 — in the decision that has now been vacated — that backlot owners in the Goose Rocks Beach area and the public have a right to use the beach, citing a longstanding history of the beach being used for a full range of recreational activities and the town’s involvement in facilitating the use of the beach by the general public.
In its ruling, the supreme court states that the lower court erred in concluding that the public has a prescriptive easement over Goose Rocks Beach.
“As a matter of law, generalized testimony regarding walks along the entire length of the beach and findings about use of the beach ‘from river to river’ cannot establish the elements of a prescriptive easement specific to any beachfront owner or any specific parcel of beach property,” the decision states. “Thus, the lack of evidence or findings of use specific to each beachfront owner’s parcel is an alternative basis on which we vacate the judgment, both as to the town and as to the backlot owners.”
The decision is sure to have precedent-setting ramifications for access to the Cliff Walk in York.
“It is not the result we were looking for,” Town Manager Rob Yandow said Tuesday.
The Friends of the Cliff Walk were trying to determine how the ruling will affect public access to York’s oceanfront path, according to Friends spokesman Jim Smith.
“The group as a whole needs to sort this out,” Smith said. “We’re waiting to hear from our attorney.”
Friends attorney Jeff Clark could not be reached for comment. Neither could Geoffrey Hole of Bernstein Shur, the town’s attorney for the Cliff Walk issue, nor David Ballou, who has represented York oceanfront property owner Milton Peterson.
Peterson became the catalyst for the formation of the grassroots Friends when in 2010 he suggested the town give up any legal interest in the Cliff Walk right of way across his Milbury Lane property in exchange for a pedestrian easement on the side of his land.
Peterson has since erected a fence barring passage across his lawn. Neighbor Richard Rubin filled in concrete steps at his property. Both property owners admit the former existence of the Cliff Walk, but claim there is no longer public access and storms have eroded the path.
The Friends claim the public has historically held the right to walk the Cliff Walk from Harbor Beach to Cow Beach near Long Sands Beach. The path currently stops at Peterson’s fence less than halfway to Cow Beach.
There is no legal case in York. In May, voters approved $50,000 for the town to legally defend in court, if necessary, the public’s right to walk the entire oceanfront path in front of York Harbor homes. The Board of Selectmen put the legal fund question on the ballot as its first step toward action.