By Suzanne Hodgson

Staff Writer

Now that the court of public opinion has spoken, the legal battle to find who enjoys legal access to the majority of Goose Rocks Beach begins.

Sidney Thaxter, a lawyer for 24 beachfront property owners, and Gregg Frame, who is representing 174 Kennebunkport residents who have traditionally frequented the beach, will begin arguing their respective cases July 21 in York County Superior Court in Alfred.

During the hearing Justice G. Arthur Brennan will decide whether the residents Frame represents, the state and other entities including Surfriders, an organization that protects Maine beaches, can join the lawsuit on the side of the town of Kennebunkport

The lawsuit, originally brought by Bob and Virginia Almeder, is against the town of Kennebunkport and all “persons who are unascertained” which Mic Harris, the founder of Save Our Beaches, takes to mean all other town residents.

Rights to the ownership of the beach down to the low water mark – or more broadly the wet sand – is the issue at the heart of the lawsuit.

While parking in the area is supposed to limit the number of non-residents who frequent the beach, abutting property owners have long chaffed at the number of people – and their activities – on the sand behind their homes. Last fall, owners requested permission to install signs advising people they are prohibited from large portions of the beach. When the town denied the request for signs, the homeowners sued.

In November the town countersued, asking the court to recognize the beach as public on the basis of years of prior use.

If the homeowners are barred from joining the lawsuit, Frame said the courts may be looking at 174 separate cases with each household testing rights to Goose Rocks Beach.

The first hearing also will call into question whether or not the beachfront property owners gave enough notice to other homeowners by advertising law suit in local newspapers, instead of sending validated letters of intent, Frame said. 

“We get phone calls every day from people who are only hearing about the lawsuit now,” Frame said.

Already Frame has a list of about a dozen more people who want to join the suit, but that opportunity is closed, unless the judge decides beachfront property owners did not give enough notice.

If the beachfront property owners win, the beach will be recognized as private, requiring the majority of users to get permission to use any portion of the beach extending from beachfront property owners’ homes to the water. If the town wins, the beach will be recognized as public, allowing unrestricted access to the entire stretch of sand.

Save Our Beaches has led the effort to organize those in favor of enforcing open access to all areas of Goose Rocks Beach, a number of whom are represented by Frame.

“All people want the rights to the beach, but do they have the rights to the beach legally? That’s for the courts to decide,” Almeder said.

The lawsuit began in September 2009, but according to Parker Dwelley, a beachfront property owner, the fight has been going on for years.

Dwelley discussed police presence during Kennebunkport’s town meeting June 12. He said police handle trespassing on the beach differently than they handle trespassing in anyone else’s backyard. Some beachfront homeowners have said if a trespasser came on to someone’s backyard, the police would be called and that person would be immediately removed from the property. Instead, police have asked the trespassers on beachfront propertis to move down toward the wet sand or onto someone else’s property.

Frame said the trespassing complaints have been overstated.

“The police have been called down there five times in the last 12 years,” Frame said.

Competing claims over property ownership comes from a number of different directions. Town Manager Larry Mead posted a letter on the town-maintained website, www.preservegooserocksbeach.org, that claims the town is willing to discuss with the plaintiffs a number of ideas to address the concerns of homeowners when it comes to public use. The ideas include signs that “clearly designate public and private ways.”

Frame said the signage is specifically for paths leading down to the beach, some of which may be private, or cross over private property.

Aside from what Almeder said was a “weak case” for the town and other non-beachfront owning parties, he charges that facts about beachfront property owners have been presented to the public incorrectly by Save Our Beaches, including speculation about why he and others changed their deed prior to the lawsuit.

Almeder said his deed was not specific to the southeast border of his property, so he went through the court process to legally map out his property, which he was told included portions of the beach. Almeder said he did not know if any other property owner did this as well.

As those seeking to have the beach recognized as private property point out, similar beachfront property claims have been decided in court before. University of Southern Maine Law Professor Sarah Schindler said in the 1989 Moody Beach cases, also known as Bell v. Town of Wells, beachfront property owners prevailed.

Maine Supreme Court agreed with lower courts and ruled the town and public had a right to use the beach as long as homeowners granted an easement.

The ruling was based on a 350-year-old document that said the public has very limited rights to the beach. The document, written in 1647, said the public has access to the inter-tidal zone, also known as “wet sand” for “fishing, fowling and navigation.”

Frames said he will argue those allowances apply to their modern-day counterparts, sunbathing, reading and swimming.

“It’s no more of a burden on property owners to bring a picnic basket than a fishing pole,” Frame said. “They could be down there with a skiff and two rifles banging off birds. The colonial ordinance is an ordinance for colonial times.”

Frame is trying to overturn the colonial ordinance with the help of Maine Deputy Attorney General Paul Stern, who tried to overturn the ordinance once before in the Moody case.

Thaxter was the lawyer for beachfront property owners in the Moody case.

According to court documents submitted by Thaxter in a motion to dismiss intervener status for the state, Stern was in the case “simply to overturn a decision (he) lost 20 years ago.”

But whatever is decided in Brennan’s court likely will not be the end of the matter.

“This case is headed to (Maine) Supreme Court,” Almeder said.

Harris and Frame echo the sentiment.

Along with a $250,000 increase in the town’s now $335,000 legal fund overwhelmingly approved by residents specifically to fight the case, Harris said each family applying for intervener status as has contributed $500 for a total of $87,000.

Almeder said the homeowners each have  signed up  to pay their portion of the lawsuit. If the case goes to the Supreme Court, Almeder said the property owners have sources that would help defray the cost, but declined to say what the sources are.

But to Almeder the cost is worth it.

“Nobody wants to pay a $1 million if they can help it, but if we don’t, we lose our property,” he said.

Staff Writer Suzanne Hodgson can be reached at 282-4337, ext. 233.