Letter: Lawsuit will waste money (Printed March 5, 2010)
To the editor:
The lawsuit by some properties owners at Goose
Rocks Beach against the town of Kennebunkport is proceeding. Cost estimates for
both sides range from $750,000 to $1 million, the time estimates for the suits
are about two years.
As one of the original plaintiffs in the “Moody
Beach” case, I remember original estimates of $25,000 to $30,000 back in 1982
with final costs of approximately $500,000 in 1989, seven years later.
Attorneys do get paid by the hour.
This lawsuit could not have come at a worse time.
Anyone remotely involved in the education of our children can see the chilling
results of recent budget cuts; staff, programs, benefits, etc. Kennebunkport
taxpayers have to ask themselves if this is the best way to spend precious
revenues.
There has to be a better way to settle this
matter. The Maine Supreme Court decided this issue and declared that owners
whose deeds that read “to the Atlantic Ocean” own to the low water mark.
There were a few property owners at Moody Beach
who wanted no one sunbathing on “their” beach. They were the minority. I don’t
recall a single owner who didn’t want anyone to walk across “their” beach. I
don’t know of much that has changed at Moody Beach since the 1989 decision but
I do know many people still sunbathe there and walk the beach.
The town of Kennebunkport could easily acknowledge
the private ownership of the beach and allow property owners to post signs that
simply state “Private beaches, please respect owners’ rights.” If property
owners wished to keep people off their beach, they could simply ask them to
move. My guess is they will be a small minority and not much will change.
The few who do choose to keep people off “their”
beach will be judged accordingly by their friends and neighbors. If individuals
feel they have prescriptive easements over other’s private property, they
should pursue it with their own money.
Bill Case
Kennebunkport
Categories: Letters
Tags: Public Safety Goose Rocks Kennebunkport Letters
It does seem like a huge waste of money, but the stakes are pretty large-at least on the town side. I am not so sure the homeowners know what they are in for, and I hope your letter helps them think about a reasonable settlement. Its more important that this issue is put to bed legally, rather than a temporary solution- plus do you really think the homeowners are only looking for a sign? They want to own the beach, otherwise they wouldn't have been talked into something that will potentially break them financially. On the town side, it is a huge expense, but its part of the allure of the town- if it goes private, tourism could drop, and they have to protect that. Read the recent Supreme court rulings and you may see the outcome not so guaranteed for the homeowners. As in the Wells beach case more recently, open and notorious use will probably prevail over intertidal use laws- which the Supreme Cout is prime to change their stance on anyway. Not sure why they are risking so much(if they even aware how much they are risking, even after reading your letter).Probably the attorney has told them the town will give based on the Moody case - probably did not even mention the details of the more recent Wells Beach case. The town has more to lose - I dont see them backing down. The homeowners went this far, so its unlikely they will change their stance until they get a sense that their case will lose.By then it will be appealed and.... Well I guess you know...
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Bill, many of us wish the 23 of 88 oceanfront homeowners had not filed this expensive lawsuit against the Town of Kennebunkport and "all unascertained persons.....". But they did.
And as noted, be careful what you wish for. While you note that the Maine Courts decided the issue, that was quite some time ago, and recent decisions by other Northeastern States and their High Courts (NJ and CT), along with many states across the country, have ruled that beach recreation is uniquely protected for the public. So what was may not be what is.
While I appreciate the picture you painted of simple signs urging politeness, that is a far cry from the suggested wording the 23 homeowners asked the Town to build and maintain, and I quote: ""PUBLIC WAY TO THE WATER, PRIVATE BEACH ON BOTH SIDES OF PUBLIC WAY. INTERTIDAL AREAS ON EITHER SIDE OPEN FOR NAVIGATION AND FISHING ONLY, NO PUBLIC FACILITIES." (Per Robert Alemeda and Jack Fleming)
I think intent and legal language are two different things. I don't see many of the homeowners actually chasing people off of their beach blankets, but there might well be a growing number each year, and no one can say that would or would not happen.
Larry Mead put the best historical perspective on this I have heard yet. Way back in 1647, against a backdrop of a King and mother country that could care less about citizen rights, our forefathers recognized the unique character of the ocean and beaches.
Protecting those unique characteristics for all citizens was part of the deed language, building into every deed exceptions for use of beaches by citizens for common enjoyment of the time, 1647, protecting fishing, fowling and navigation. How unique! They did not do this for any other land use, but clearly recognized that we were blessed with a wonderful asset that should be enjoyed by the population at large.
Of course no one sunbathed then. And if the Frisbee had been invented in 1646, we might have a whole different scenario! But from the effort our legal forefathers made to legally build in protection for rights of the times, it is clear their intent, and it is highly likely that the Courts in Maine will recognize this in 2010.
So please stop the madness. Drop the costly lawsuit. Sit with us and discuss your needs and issues. We can solve problems together without your bringing a lawsuit against the Town and "unascertained persons". Don't hold us all hostage and keep my grandkids from playing in the warm sand on a spring day, please?
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If these property owners were to have suggested a cutesy sign that said "The geese don't clean up after you, please respect our rocks." there wouldn't be any uproar, The proposed language of their sign so early on in this issue makes it crystal clear the intentions of maybe not all, but at least some of the plaintiffs who have filed suit.
The thing to remember is that if the beachfront property owners were to win, and the majority of the beach is made private property, legally it is in their best interest to not allow for public use for fear of being held liable if something happens in front of their home,
Surely an out-of-court solution where they are absolved of that liability while protecting the entire beach from any special interests and over use is possible. Isn't that what the beachfront owners who gave the beach to the KCT back in the day currently enjoy?
Both the courts and Save-Our-Beachs.org have offered the plaintiffs a venue to discuss any specific concerns they have beyond that and not only have the willingness, but the means to meet any reasonable demands they may have. These offers to negotiate have either been refused or sabotaged early on by unrealistic demands made by the plaintiffs, and yet the offer is still there to talk and try to resolve this before things get ugly and costs begin to skyrocket.
Anyone who says that the Town and Citizens of Kennebunkport should give up their right to freely access one of their biggest natural resources in the name of fiscal responsibility is advocating appeasement to a small special interest group in the midst of a land grab during tough economic times. Times like this make me glad we have govenment, to stand up for me when I don't have the means to do it myself.
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