February 9

Maine high court ruling on land access sends out tremors

When the state supreme court affirmed the rights of private property owners at a Kennebunkport beach, advocates for public use all over Maine found reasons to cheer and to worry.

By Kevin Miller kmiller@pressherald.com
Staff Writer

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click image to enlarge

Bob Scribner of Kennebunkport, a beachfront property owner, says, “The public is welcome to use the beach. But they are going to use it with respect.”

Gabe Souza/Staff Photographer

Unlike many beach access cases, the fight over Goose Rocks didn’t start with a “No Trespassing” sign suddenly warning away would-be beach-goers. Kennebunkport residents and visitors to the town have freely used the three-mile stretch of beach for well over a century and continue to use it today.

In a pre-emptive move to protect that access into the future, town leaders and non-beachfront property owners asserted that historical usage essentially gave the public a legal right – known as a “prescriptive easement” – to continue doing so.

“The public’s roots in a beach can run so deep and for so long ... that our law has said for years that, at some point, those rights cannot be taken away,” said Tchao, Kennebunkport’s attorney who works at the Portland law firm of Drummond Woodsum.

In 2012, Kennebunkport officials also negotiated access agreements with 63 other landowners along Goose Rocks Beach to ensure that the public can use the beach in front of their properties.

To qualify for a prescriptive easement under Maine law, a property must have been continually used by the public – without a landowner’s permission – for at least 20 years.

Prescriptive easements are a distinct legal tactic – and some would label it “a taking” – from the long-held tradition in Maine of “presumptive permission” that allows the public to hunt, hike, camp or sunbathe on private land that isn’t posted as “No Trespassing.”

Bob Scribner’s family has allowed the public to use the beach in front of their Goose Rocks home for more than a century. To Scribner and more than two dozen of his neighbors, however, the town’s actions went too far.

“It was an attempt by the town to exert control over our property rights,” Scribner said. Scribner said he and the other 28 plaintiffs challenging Kennebunkport’s easement claim have no intention of “privatizing” their stretch of Goose Rocks. Instead, the lawsuit was intended “to clear the title” and protect their property rights.

“The public is welcome to use the beach,” Scribner said. “But they are going to use it with respect. And they should know they are using it with permission and that it doesn’t belong to them.”

MORE COURT BATTLES AHEAD

Kennebunkport resident Nancy Viehmann has a different perspective. Viehmann and her husband, Tony, also own waterfront property that is open to the public. Unlike the oceanfront at Goose Rocks, however, the Viehmanns’ shoreline is not sandy beach.

“It has always been a resource for us, for our friends and our neighbors,” Viehmann said of Goose Rocks Beach. “We never thought of it as being restricted in any way. It is also a beach that is not crowded.”

This particular segment of Maine’s lengthy coastline has been a hotbed for legal action over beach access.

Over the past 25 years, Maine’s top court has handed down three major cases centered on a 12-mile stretch of seashore from Moody and Wells beaches in Wells and to Goose Rocks in Kennebunkport. As in the two Wells cases, the Kennebunkport case appears likely to set legal precedent for beach battles elsewhere.

Groups are currently fighting with property owners for access along Cliff Walk in York and to Cedar Beach in Harpswell.

“How much of an actual impact will it have on the public’s rights to use the beach? I’m not sure,” said Adam Steinman, an attorney for the Maine chapter of the Surfrider Foundation, which has been active in the Goose Rocks case and several other beach access cases in the state. “It clearly means that there will be more litigation when we were hoping the court would say, ‘enough litigation.’”

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