Thanks to high passions, vague laws, and muddled court decisions, sorting out where property owners’ rights end and the public domain begins is no day at the beach.
By Rob Sneddon / Photo By Skyler Kelly
Most people do not understand this case,” says Robert Almeder, lead plaintiff in a lawsuit over public access rights to Goose Rocks Beach in Kennebunkport.
It’s a simple declarative sentence, and yet, like nearly every aspect of this lawsuit — pitting the town of Kennebunkport and the state of Maine against Almeder and 28 other beachfront-property owners — it can be interpreted in different ways. What Almeder means is that most folks don’t grasp the intricacies of the lawsuit. But it’s also true that many don’t understand why he felt the need to go to court in the first place. In fact, there’s a lot about the Goose Rocks Beach case that’s difficult to fathom.
Start with Maine’s laws regarding coastal property rights. They’re as murky as a puddle on a mudflat, and 30 years of wishy-washy, jargon-heavy court rulings have done little to clarify them. (See “Coming to Terms.”) For some, even harder to square is that nothing actually happened to Almeder to prompt the lawsuit. He contends that he is suing merely to affirm a right — to bar the public from the beach in front of his house — even though he has never exercised this right and doesn’t intend to.
Even some of the lawyers have a tough time wrapping their heads around that.
In March 2012, Almeder gave a deposition in the Goose Rocks Beach case that ran more than 200 pages. At times it veered into legal parsing as granular as the fine white sands of the beach itself, such as the exact meaning of the word tacit. After hearing the deposition, Richard Driver, a pro se attorney for the defense, told Almeder that he was still “trying to understand why the hell we are here.”
Almeder’s answer: If his side prevails, “the beachfront owners will retain their property rights and not be forced to hand them over to the town, whose interest in the beach might not be the same as yours and mine.”
In other words, he was drawing a line in the sand.
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[L]ong before Almeder gave that deposition, the lawsuit had produced hard feelings around Kennebunkport. Many off-beach residents felt that the beachfront property owners’ suit was directed not at the town but at them. “Everyone around here was talking about mean-spirited beachfront owners,” says Almeder, who’s lived at Goose Rocks Beach since 1979. “And we said, ‘Look, nobody’s closed the beach — we haven’t even talked about it.’ They said, ‘Yeah, but you could do it.’ Yes. That’s what the right to private property means.”
Almeder is a professor emeritus of philosophy at Georgia State University. He has written 24 books and once published an essay titled “The Major Objections from Reductive Materialism Against Belief in the Existence of Cartesian Mind–Body Dualism.” He is not a man who is willing to sit idly by if he thinks others are playing fast and loose with either the law or the language. “I see a wider context here that’s worth a struggle,” he says.
In some ways, the battle over Goose Rocks Beach is similar to the battle over gun control, and for beachfront-property owners, the equivalent of the Second Amendment is an edict called the Colonial Ordinance. Written in the 1640s, the Colonial Ordinance gave Maine’s oceanfront property owners title to the low-tide mark, with public access permitted only for “fishing, fowling, and navigation.” Property owners can choose to let the public use their beaches for a wider range of activities, of course — and most, like Almeder, generally do. But Almeder and his fellow plaintiffs want to retain the right to bar people from the beach if they choose — just as Second Amendment literalists will fight for the right to bear arms, even if they never actually fire them.
And just as some people think the Second Amendment can be reinterpreted in a modern context, some wonder why access to Maine’s beaches is dictated by oddly worded strictures dating back to the time of King Charles I. “I don’t understand why the [Maine] courts cling to this relic the way they cling to it,” says Larry Mead, who was town manager in Kennebunkport during the buildup to the Goose Rocks Beach lawsuit. (He has since become town manager in Old Orchard Beach.) “The fishing, fowling, and navigation language is not something you need to hang onto 350 years later. The public use that they had latched onto at that time was the use of that era, for economic prosperity. So let’s take that philosophy of this unique public resource’s economic use and apply it to the 2000s and recognize that tourism is now the economic engine of this area.”
In fact, Maine’s courts have steadily relaxed their interpretation of the Colonial Ordinance through the years. They’ve expanded the definition of fishing to include shell fishing (1854), clamming (1909), and even digging for worms (1952). And in 1900 the court tried to clarify the broad term “navigation” by declaring that the public “may sail over [intertidal lands], may moor their craft upon them, may allow their vessels to rest upon the soil when bare, may land and walk upon them, ride or skate over them when covered with water bearing ice . . . ”
Maybe that cleared things up at the turn of the last century. But since then, advances in recreational equipment have clouded the waters again. What about scuba diving, for instance? Is that covered under the “navigation” provision?
The Maine Supreme Judicial Court was asked to decide that very question in 2011. An Eastport couple had filed suit to prevent a man from crossing the wet sand on their property to conduct scuba diving tours in Passamaquoddy Bay. The court ruled 6–0 for the diver. But despite this apparent unanimity of opinion, the court was evenly divided in its reasoning. Three justices sided with the diver because they thought scuba diving was indeed a form of “navigation.” The other three sided with the diver because they believed that the Colonial Ordinance’s reach should extend beyond “the three talismanic activities to which the walk to the ocean must be tied.”
Having once again been presented with an opportunity to provide clarity, Maine’s legal system did the opposite.
[N]owhere has this waffling produced greater ramifications than at Goose Rocks Beach, where today’s high-stakes legal showdown evolved from the inability to resolve a simple — some might even say petty — personality conflict.
Barbara Rencurrel was a longtime beachfront resident who was diligent about guarding the rights to what she perceived to be her property. Although she never objected to anyone walking past her place, she would ask those who lingered to move down to the public portion of the beach, a short distance away.
Mic Harris, who lived on the other side of Kings Highway, a short walk from the beach, was equally diligent in asserting what he believed was his right to enjoy a natural resource that belonged to everybody. So Harris repeatedly made a point of planting himself on the beach in front of Rencurrel’s place. She repeatedly made a point of asking him to leave. Finally, on August 27, 2005, things came to a head. Rencurrel called the police and asked to have Harris arrested for trespassing. Harris said he was willing to be arrested if that’s what it took to prove his point.
In other words, both parties in the dispute turned to the legal system in good faith and said: Please decide which one of us is right so we can all move on.
Almost nine years later they’re still waiting for an answer.
Indecisiveness over this issue is systemic. Consider the way the response to that minor disturbance quickly climbed the chain of command. Before the responding officer even reached the scene, patrol supervisor Steven Shisler got on the phone with him “to explain the potential dispute concerning ownership of the beach,” according to Shisler’s report. Shisler then called police chief Joseph Bruni “and requested guidance.” From there, Shisler went to the beach and told Harris that “the town was in an awkward position and wanted to avoid legal action concerning ownership of the beach.”
That response didn’t sit right with Rencurrel, so Shisler assured her that Chief Bruni would call her after he had consulted then–town manager Nathan Poore. After conferring with Poore and town attorney Amy Tchao, Chief Bruni called Rencurrel. “I informed Ms. Rencurrel that we will enforce the trespassing laws above the high-water mark, but we will not at this time enforce between the high- and low-water mark,” Bruni wrote in his report. “We will change this stance when instructed to do so by the town attorney.”
Suffice to say, the police never received any such instructions. In fact, in a subsequent letter to Poore, Attorney Tchao said that she based her advice on an “understanding that the selectmen do not want the town to take any action at this point in time that would tend to defeat or diminish a claim for a public prescriptive easement right in Goose Rocks Beach if the town were to undertake litigation to establish one in the future.”
And so, effectively put on notice that the town was challenging their claim of ownership, a group of beachfront residents led by Robert Almeder filed a “quiet title” action.
Rather than proceed to trial, some beachfront owners signed a “Beach Use Agreement,” whereby the town recognized their property rights in exchange for unlimited public access beyond a 25-foot reserved zone. The remaining owners decided to see the suit through. On October 16, 2012, York County Superior Court justice Arthur Brennan ruled in favor of the town. But on appeal, Maine’s Supreme Judicial Court vacated the lower court’s verdict.
Then, this past April, the high court heard a “motion to reconsider,” a rare legal maneuver in which the losing side asks for a do-over. As this magazine went to press, the Supreme Court was still considering whether to reconsider.
[O]ne interpretation of what’s happened at Goose Rocks Beach is that the town of Kennebunkport triggered a self-fulfilling prophecy: Trying ham-handedly to avoid repeating a scenario that played out at Moody Beach in Wells 30 years ago, officials actually caused it to happen.
A belated disclosure: My wife’s parents own a cottage on Crescent Beach in Wells. This, no doubt, has colored my reporting on this emotional issue — although not in the way you might think. I’ve enjoyed Crescent Beach for almost two decades. And during that time my in-laws have never made any attempt to keep tourists off “their” beach. If anything, the opposite is true: They like seeing people enjoy it. Not that they haven’t encountered louts on occasion. For instance, there was the couple who used the landing on my in-laws’ steps as a changing station and left the dirty diapers behind. But such incidents have been rare and never nasty enough to sour my in-laws’ outlook. As far as I can tell, all the other cottage owners at Crescent Beach feel the same way.
I was surprised, then, when I heard that cottage owners at Moody Beach had once gone to court to make their beach private. Moody Beach is just south of Crescent Beach. I found it hard to believe that the dynamic there could be so different as to require such drastic measures. So my knee-jerk reaction was: What a bunch of selfish jerks.
But when I looked into the details of the Moody Beach case, my perspective gradually shifted. It turns out that what happened at Moody Beach all those years ago (the original suit was filed in 1984) was that property owners asked the town of Wells to control the beach — and Wells wouldn’t do it.
The situation was ugly. Wells had been stung by a recent divorce from the town of Ogunquit (originally a village within Wells), and that no doubt created a less than conciliatory atmosphere.
The backstory began almost a century ago. The three-mile stretch of sand that now comprises Ogunquit’s public beaches and Moody Beach in Wells was once a single entity. According to the Ogunquit Chamber of Commerce’s website, the land had no title, and a savvy developer named Charles Tibbetts acquired the entire parcel for $100,000 through a quitclaim deed. Tibbetts began selling lots on the northern portion of the beach, in Wells proper. He reportedly had plans to build an amusement park in the southern portion, so Ogunquit acquired that property through eminent domain in 1925. From that point on, the Ogunquit portion of that three-mile beach was recognized as public, and the Moody Beach portion in Wells was informally recognized as private.
This distinction became even more pronounced after Ogunquit officially seceded from Wells in 1980, taking its two-mile public beach with it, along with a parking lot and restroom that Wells mistakenly believed was on its side of the line. The split left Wells only with
Moody Beach — which lacked public facilities and was lined with private cottages. Still, tourists continued to use it as if it were public, with the town’s tacit encouragement. Buses from nearby campgrounds and motels dropped people off at public access points that the town maintained, and the situation got out of hand. Among other things, people figured out that they were less likely to be cited for drinking on Moody Beach than on North Beach because Moody Beach was unpatrolled.
Jon Carter, current Wells town manager, admits that Wells mishandled the situation. As he recalls, “What the beachfront owners were saying to the selectmen back then was, ‘Hey, you need a public bathroom down here. You need some services. If you do that, maybe it will be OK.’ And at that time the selectmen said no. That’s when the lawsuit came. So I think we’ve learned our lesson to some extent.”
[A]ttorney Pete Thaxter represented the owners in the Moody Beach case, and he represents Robert Almeder and the owners at Goose Rocks Beach today. “In both of these cases,” he says, “if the towns had looked honestly at the rights of the owners and just said, ‘Can we work something out?’ they would have had a lot better result. But when you come in and demonize the owners from the start . . . ”
Almeder says that Kenne-bunkport’s strategy was “to not make it a legal issue but a moral issue. Their claim was that it’s just wrong for people to own exclusive access to the ocean.”
That exclusivity tends to work against the property owners in the public-relations battle. “Let them eat salt water taffy” and “Nothing worse than hearing rich people whine” were among the online comments following a recent Boston Globe article about the case, which characterized the dispute as “pitting wealthy seaside owners against off-beach residents.”
But what if the property owners at Goose Rocks Beach were a tight-knit group of retirees living on fixed incomes? What if their homes were only glorified dune shacks that had been in their families for generations? What if the town of Kennebunkport allowed a developer to build a massive resort/casino just up the street, resulting in an influx of tourists who overran the retirees’ quiet beach? And what if the town not only declined to restrict tourists to the beach’s public portion, but also refused to recognize the retirees’ full rights to their property, regardless of what their deeds and long-established Maine law said?
Which side would get the more sympathetic treatment in that case? And are the underlying legal principles in the actual Goose Rocks Beach case any different?
[W]ith the arrival of another short Maine summer, towns up and down the coast are watching for red flags on Goose Rocks Beach, waiting to see which way the legal winds blow this time. Says Carter, town manager at Wells, “Our antennae are way up.”
No wonder. Wherever Maine’s public and private beaches blend, people still have no clear idea of who’s allowed to go where for what purpose. And anyone who tries to find out risks triggering another ugly lawsuit. So until the courts clarify the laws regarding beachfront property rights — and then consistently apply them — the question of ownership is best left not only unanswered but also unasked.