By Kristy Wagner

Staff Writer

A property dispute at Goose Rocks Beach may have to be settled at trial.

York County Superior Court Justice Arthur Brennan ruled Dec. 22 that the argument about whether the town or the individual property owners own Goose Rocks Beach could not be determined on a summary judgment. The court scheduled a discovery and future course of proceedings conference for Jan. 20 to discuss the direction of the case.

The Goose Rocks legal dispute between beach property owners and the town of Kennebunkport has been ongoing since October 2009 when Goose Rocks Beach property owners, plaintiffs in the case, filed a complaint against the town in York County Superior Court.

The plaintiffs claimed deeds to their beachfront property go all the way down to the ocean or “low water mark.” The plaintiffs argued the town allows public beach access to Goose Rocks, which plaintiffs consider their private property. They also argued that Kennebunkport prohibited Goose Rocks property owners from posting no trespass signs on the beach.

Brennan stated in his ruling that the town of Kennebunkport argued that it acquired the beach through a conveyance in 1684 but the document never “conveyed any part of the beach into private hands.”

In his ruling, Brennan said deeds to the beachfront properties failed to “unambiguously describe the high dry sand and inter-tidal zone as a part of the property.”

The inter-tidal zone and high dry sand remain the areas of ownership discrepancy argued in the case.

According to the original complaint filed with the court, the plaintiffs wished to adhere to the colonial ordinance that was put in place in the 1640s that stated the public use of the beach should only be to “fish” and to “fowl.”

The plaintiffs argued in their complaint that the beach has been subject to “unlawful” activities such as “sunbathing, setting of bonfires, picnicking and storing of boats on the beach.” The complaint also stated that the town “refused to instruct its police officers to protect plaintiff’s property from trespassing by individuals when requested to do so by various plaintiffs and other property owners.”

“Basically, what the judge is saying is that ‘I need more evidence than what was put in on the summary judgment records,’” said Kennebunkport Town Attorney Amy Tchao.

Tchao, of Drummond, Woodsum and MacMahon in Portland, said the ruling means that either the town or property owners could take the case to trial. She also said mediation could still occur outside of court before that happens. If Brennan had granted a summary judgment to either the plaintiffs or the defendants, then no trial would have been necessary.

“The purpose of the Jan. 20 hearing is a meeting or a conference to determine the future course of the case,” she said.

Tchao said the purpose of the meeting is to determine what must take place before the case goes to trial and whether additional mediation efforts need to be considered.

“We’re definitely going to trial,” said Attorney Sidney “Pete” Thaxter, who represents the plaintiffs.

Thaxter, of the law firm Curtis Thaxter in Portland, said Brennan’s decision not to grant summary judgment to either side was not a bad outcome.

“In terms of the ruling it ruled out all of the individual claims,” Thaxter said. “(Brennan) ruled on the most important point that (the defendants) didn’t have title.”

Brennan said civil mediation is still a possibility if both parties are willing to cooperate.

“You know (the plaintiffs) always said that this could go back to the status quo if the town could give up making its claims,” Thaxter said.

Conversely, Tchao agreed with Brennan that the plaintiffs could not rely on the “unambiguous” property descriptions in their deeds.

Despite losing ground based on the language in the deeds, Thaxter said he and the plaintiffs are pleased with Brennan’s Dec. 22 ruling not to grant summary judgment.

“(The defendants) said ‘this is a very simple claim that we own this property because we have a deed dated 1684,’ so they lost their silver bullet (with Brennan’s ruling),” Thaxter said.

Both Tchao and Thaxter said they would like to see a resolution in the near future and hope the discovery meeting slated for Jan. 20 will open some new avenues to get to that point.

“It could be mediated and there are people working on it and our folks have certainly tried and hopefully (Brennan’s) decision makes it more possible,” Thaxter said.

The discovery conference is scheduled for 2 p.m. Jan. 20 at York County Superior Court in Alfred.

Staff writer Kristy Wagner can be reached at 282-4337, ext. 233.