Overruling a lower court ruling that recognized a local tradition of open access to the beach, Maine's Supreme Judicial Court has upheld the exclusive property rights of beachfront homeowners in a property-rights dispute that has divided a small shorefront community. Seacoast Online has this report (see: Public's access to Goose Rocks Beach Overturned," by Jennifer Feals).
The town of Kennebunkport, joined by 29 "back-lot" homeowners who own property near the shore (but not quite on the water), had sued to prevent oceanfront homeowners along Goose Rocks Beach from denying access to the beach by members of the public. According to the town and the back-lot owners, a century and more of common practice had created a "prescriptive easement," establishing a de facto common-law right of members of the public to access the beach.
A lower court had accepted that reasoning. But Maine's Supreme Court did not, saying, "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."
Kennebunkport's attorney, Amy Tchao, was disappointed. Said Tchao: ""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. It's a radical departure from anything we've seen from this court so far."
Tchao told the Boston Globe, "This court has said that even walking in the intertidal zone is presumed to be by the permission of the landowner." (For the full Globe report, see: "Many lament potential loss of access to Maine beach," by Peter Schworm).
The ruling's direct impact on the beach in question is limited, however, the Globe reports. "While residents voiced anger and frustration over the ruling, a fairly large portion of the beach remains open to the public, about half of it by Tchao's estimate," writes the Globe. "Some property owners reached an agreement with the town last summer that allows public access to their portions of the beach; other sections are owned by the town or a conservation trust."
The town has also settled with a large group of homeowners, an agreement that allows public use within certain limits, reports the Portland Press-Herald (see: "Maine court: Public has no right to use Kennebunkport beach," by Dennis Hoey).
"In July 2012, then-Town Manager Larry Mead and the Board of Selectmen negotiated a so-called beach use settlement with 63 beachfront landowners," the Press-Herald reports. "The agreement allows the public to use the beach in front of their homes as long as the landowner can, at his or her discretion, reserve a 25-foot section from their house to the ocean for their private use."
However, critics fear that more beachfront owners will now move to close off their sections of beach. Said one resident accustomed to walking the whole beach on most days: "Now that they've won, all bets are off."