04 • 27 • 2018

Maine Court Rules for the Town of Kennebunkport in Beach Access Battle

By Angela Howe

This month, an important ruling came down from Maine Superior Court involving a years-long public access battle over the beloved Goose Rocks Beach in Kennebunkport, Maine.  The Maine Chapter of Surfrider Foundation has engaged in litigation alongside the Town of Kennebunkport to protect public access to the two-mile stretch of beach.  Justice Wayne R. Douglas authored a 274- page opinion intensely detailing the facts surrounding the Plaintiffs property deeds and history of ownership. This trial court decision will help further the campaign for more open public beach access in the state.

The case was originally filed in 2009 by 29 beachfront property owners, arguing for declaratory judgment and quiet title to the beach down to the mean low water line.  In 2012, the lower court rejected the beachfront property owners' arguments, but in 2014 that decision was overturned by the Maine Supreme Judicial Court.  Later in 2014, that Court replaced its ruling with a new opinion allowing Kennebunkport to argue its case again in Superior Court on a parcel-by-parcel basis.  That new analysis lead to the current opinion, in which the court concludes that after review of the extensive record in this case and after consideration of the unique circumstances presented, title to the disputed parts of the beach rests with the Town of Kennebunkport.  The circumstances that the court took into consideration include: (1) the nature of the disputed property (including its non-exclusive possession and use of which has been shared by upland owners and the public), (2) failure of the upland property owners, with one exception, to prove title to the disputed beach area even after full examination of the deed history, (3) evidence of public grants of common and undivided lands within the town and also town proprietary holding title to common land for the benefits of the inhabitants of the town, (4) the common and undivided lands included the beach, and (5) lack of evidence that the proprietary had granted out portions of the beach.

While the general holding in the case is that the Town of Kennebunkport owns the sandy beach, there was one minor exception based on an intense factual investigation by the court. On page 249 of the decision, the court describes that one out of 24 properties was able to successfuly establish by a preponderance of the evidence that the seaward boundary of their property is the mean low water line of the Atlantic Ocean.  This was the Temerlin property.  The deeds describing the chain of title for this property used the specific description of “bounded…Southerly by the Atlantic Ocean”, which the court ruled establishes prima facie title to the water.

This is a trial court decision, and the Plaintiffs will have the opportunity to appeal to the Maine Law Court.  If that happens, Surfrider Foundation will continue our strong campaign to support the Town’s arguments for free and open beach access and strong public trust rights.