Maine’s high court upholds town ownership of beach in Kennebunkport

Maine’s highest court has ruled that the town of Kennebunkport owns Goose Rocks Beach, possibly ending a decade-old legal battle over ownership and control of the 2-mile stretch of oceanfront.

The 42-page ruling traces control of the beach back to the colonial period and dismisses arguments made by nearly two dozen beachfront property owners that ownership of the beach had effectively reverted to neighbors rather than to the public.

“Therefore, on the record before us, and in the absence of any evidence suggesting that the disputed land was conveyed into private ownership, we affirm the holding of the trial court that in the unique circumstances of this case, legal title to the disputed land seaward of the seawall, including the beach, is held by the Town of Kennebunkport for the benefit of the public,” the ruling says.

Goose Rocks has been one of many battlegrounds in a larger struggle between private property rights and public access to the Maine coast. While a win for public access advocates, the case is not expected to have a major influence on other beach disputes because of the unusual local history of land ownership it involves. But it does appear to end a fight that divided town residents for the past 10 years.

One of the town’s lawyers said Thursday that local officials hope the decision brings “closure and healing.”

“We’re just ecstatic that Maine’s Supreme Court has now established for all time the right of the public to enjoy this 2-mile stretch of beach,” said attorney Amy Tchao of Drummond Woodsum. “It’s really a unique coastal treasure, and all the town has ever wanted was to preserve the long history of public use and enjoyment of this beach.”

Tchao said the town has now established a management agreement with more than 60 property owners near the beach. Those people already had given up their ownership rights to that area as long as the town managed it in keeping with local ordinances, like prohibiting drinking and littering, and the town established an advisory committee to oversee that agreement. The latest appeal in this case involved 22 other property owners.

The attorney said town leadership hopes that agreement and other steps can bring the community together after the long court battle.

“We hope to remain good stewards of this for centuries,” Tchao said.

Curtis Thaxter, the Portland-based law firm representing the plaintiffs, said the property owners were disappointed by the ruling and were weighing their legal options.

“The beachfront owners’ deeds for at least the past 100 years have all described their land to include the beach, subject to the rights of the public in the intertidal zone,” Curtis Thaxter said in an emailed statement. “Now, the court essentially removes that ownership interest by describing their ownership only to the seawall as it defines the seawall based on ancient 1600s deeds.

“Thus, ownership of land that has changed hands for centuries with the common understanding as to its ownership, is now removed by this decision from these property owners.”

Attempts to reach Robert Almeder, the lead plaintiff, were unsuccessful.

The state was also a party to the case and supported the town’s position.

“I am pleased with the court’s decision affirming the town’s ownership of the disputed parcels of Goose Rocks Beach,” Attorney General Aaron Frey said in a written statement. “This is a victory for Mainers seeking to responsibly enjoy one of our state’s most precious natural gifts.”

In Maine, waterfront property owners generally own all the way to the low tide mark. But state law allows the public to engage in acts of fishing, fowling and navigation in the intertidal zone, the area between the high and low tide lines. Called the public trust doctrine, that rule dates to 1647, and its meaning has long been disputed in the courts.

But Chief Justice Leigh Saufley said at oral arguments that public trust doctrine was not the central question of the dispute. That’s because in the case of the Goose Rocks, the original private property deeds excluded the beach. The courts ruled that, because of that history, the beach was intended to be a public resource.

“Despite the lack of a specific accounting of the remaining common and undivided land or a grant concerning the same, there is no doubt that the beachfront owners in this case have not established ownership of the beach,” Justice Thomas Humphrey wrote in Thursday’s decision. Only five justices heard the oral arguments due to conflicts of interest, and they agreed unanimously on the decision.

The case began in the fall of 2009, when more than two dozen oceanfront property owners sued the town. Their complaint stated people were increasingly using Goose Rocks Beach for bonfires, picnics and boat storage. They have said since then that they do not want to close the beach to the public, but they want the right to regulate activities on the beach, such as asking people who are drinking or playing loud music to stop.

In 2012, a Superior Court judge ruled in favor of the town, saying the adjacent homeowners did not have exclusive rights to the beach. The ruling affirmed the public’s right to swim, walk and recreate on Goose Rocks Beach.

In 2014, the Maine Supreme Judicial Court overturned that ruling to side with the property owners. Later that year, however, the justices made the rare decision to reconsider the case and changed their opinion.

The new ruling allowed Kennebunkport to argue its case again in Superior Court on a parcel-by-parcel basis, rather than argue for property access for the entire 2-mile stretch of beach. The justices also clarified that their opinion was specific only to Goose Rocks Beach and did not impact beach access rights elsewhere in the state.

The plaintiffs’ law firm disagreed with that assessment.

“The ultimate implications of this decision to titles in Maine are yet to be seen, but it clearly has implications that go far beyond these property owners,” Curtis Thaxter said in its statement.

Last year, the lower court again found in favor of the town. The judge granted Kennebunkport title rights to the beach areas down to the low-tide mark in front of all but one of 23 beachfront properties. That decision was the basis of this latest appeal.