ROBERT F. ALMEDER et al.
TOWN OF KENNEBUNKPORT et al
As Corrected January 22, 2015.
ORDER ON MOTIONS FOR RECONSIDERATION
Leigh I. Saufley, J.[*]
Two motions for reconsideration are pending before us regarding the public's use of Goose Rocks Beach in the Town of Kennebunkport. See M.R. App. P. 14(b). The Town and the State of Maine have each moved for reconsideration of our decision in Almeder v. Town of Kennebunkport, 2014 ME 12, issued on February 4, 2014. The plaintiffs oppose the motions, and we held oral argument on the motions.
By this order, we DENY the State's motion for reconsideration of our decision regarding the public trust doctrine, and we DENY in part and GRANT in part the Town's motion seeking reconsideration of the public trust issue and a remand for the trial court to complete a parcel-by-parcel factual analysis of the Town's public prescriptive easement claim. We simultaneously reissue the opinion as amended.
Goose Rocks Beach has been the subject of significant litigation and substantial public attention since at least 2009, when a number of Beachfront Owners of land on the ocean at Goose Rocks Beach filed a complaint against the Town of Kennebunkport and others in order to clarify their private ownership rights to the sand, both
wet and dry, in front of their homes. Because it appears that some confusion exists regarding the genesis of this case and the outcome in Eaton v. Town of Wells, 2000 ME 176, 760 A.2d 232, we provide additional background to give a more comprehensive perspective on the matter. The evidence in the record reflects the following recent history of the lots at issue.
Of the 110 parcels of property comprising the oceanfront at Goose Rocks Beach, the Town or the Kennebunkport Conservation Trust owns 9, and the remaining lots are owned by approximately 85 private individuals or entities. In this way, contrary to the urgings of the Town, the ownership of Goose Rocks Beach is decidedly different than the ownership of the oceanfront property at issue in Eaton. In Eaton, the beachfront land in dispute was owned by a single family that had assumed that the Town owned the sandy beach in front of its oceanfront property. Id.
¶¶ 8-9, 34, 39.
Except for the publicly owned portions of the Beach, until the mid-2000s, the Town regularly acknowledged the private ownership of the sandy portions of the Beach, subject only to the public trust interests in the intertidal zone. Recognizing that ownership, in the mid-1970s, the Town undertook an effort to have the beachfront owners at the time donate their Beach property to the Town's Conservation Trust. That effort was only marginally successful. Thereafter, the Town selectmen assured the owners that " [t]here was, and is, no threat on the part of any selectmen to force anyone into donating their land," nor any attempt to take the Beach from private owners by means of eminent domain. During that same time frame, as a result of a dispute regarding a private beachfront owner's use of the Beach in front of her own home to allow her dog to run, the Town recognized that, in that instance, the land in question was privately owned down to the low water mark and that the Town's dog ordinance, applicable on public land, did not apply to that privately owned section of Beach. Then, in 1979, the Town completed a public access inventory in which it noted that Goose Rocks Beach was " partly" owned by the Town. (Emphasis added.)
This same treatment of the Beach as partially public and partially private prevailed over the next few decades. The police and other Town officials reminded members of the public that they must " respect the rights of Private Property Owners" and that some portion of the Beach is considered " the 'private' end of the beach," and admonished members of the public to obtain permission from the property owners on whose portion of the Beach the members of the public wished to take such actions as starting fires. Even as late as 2009, the Town's comprehensive plan stated that " [m]ost of Goose Rocks Beach is privately owned; the public portion of the beach is very popular."
In 2005, when one of the Beachfront Owners complained about an individual's use of the Beach in front of her property for purposes beyond mere general recreation, the Town's attorney advised the Town that it might be possible to establish a public prescriptive easement claim to all sandy portions of the Beach.
Against this backdrop, the Beachfront Owners filed their suit in 2009 seeking clarification of their ownership rights given the Town's recent advancement of the view that the Beach was public. As the litigation progressed, the Town negotiated an agreement with approximately two-thirds of the owners of beachfront property to obtain a public easement across the dry and wet sand in front of the owners' parcels. Those agreements, signed in summer 2012, allow members of the public to continue to engage in ordinary recreational
activities on the Beach. The remaining third--the Beachfront Owners who are defending this appeal--declined the Town's terms, as they are entitled to do. Those remaining Beachfront Owners indicated that, although they would continue to allow general public recreation by permission on the Beach, they would not agree to cede any property rights to the Town.
We now address the specifics of the two pending motions ...