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Friday, February 7, 2014

Maine Court: Public Has No Right To Use Beach

Should beachfront property owners have exclusive access to the beach? Or should it be open to the public? The highest court in Maine ruled this week that 29 beachfront property owners have exclusive rights to two miles of beach in Kennebunkport — parts of the beach that the public has traditionally used.

Amy Tchao, the town attorney for Kennebunkport, argued the beach should have public access. She joins Here & Now’s Robin Young.

Guest

  • Amy Tchao, town attorney for Kennebunkport and Sebago, Maine.

Transcript

ROBIN YOUNG, HOST:

Well, on the opposite coast, a court decision that answers an age-old question: Should beachfront property owners have exclusive access to the beach, or should it be open to the public? In Maine, the state Supreme Court ruled this week that 29 beachfront property owners do have exclusive rights to 2 miles of beach in Kennebunkport, beach that the public has traditionally used.

Amy Tchao is the town attorney for Kennebunkport. And Amy, this case started in 2009. What happened?

AMY TCHAO: Well, it started with a group of beachfront owners on Goose Rocks Beach suing the town, claiming that they owned the beach down to the low-water mark and that they could exclude anyone they wish from the beach areas in front of their homes. And the town, knowing that there had been over a century-long history of tradition and public use and town maintenance and patrol and enforcement of ordinances on the beach, felt it was important for the entire community and to the public to defend the public.

YOUNG: Was that your argument - that, you know, for instance, police had patrolled it, that it had been cared for by the town and that basically, this had been going on for a long time? Was that your argument?

TCHAO: That was our argument; that the roots in this beach for public use - those roots are deep, and they are old. They go back well over a century. And there's a body of law, under prescriptive easement law, that says that once those roots run so deep, regardless of who may have title in their deed to the property, that those use rights should be preserved.

YOUNG: Well, and you also pointed to the town of Wells, Maine, where a court did decide in favor of public use.

TCHAO: That's exactly right. And it was based upon that court precedent that we felt cautiously optimistic, and very confident, that the history in the use by the public and the presence by the town should establish the same kind of public use rights on Goose Rocks Beach. But the court found otherwise.

YOUNG: Well, so what has this done? There were plaintiffs in the lawsuit, but there were other property owners on the beach who made an agreement with the public to use the beach. So there will be some beach use. But still we understand this really pit neighbor against neighbor, friend against friend. This was pretty rough on the town.

TCHAO: It is, and it's certainly been in the litigation. And the hope is that because public use will continue on this beach by agreement, that this is a community that can mend its fences and continue on in the spirit of public use. But I don't have the same confidence after this decision that that will occur on other beaches in the state.

YOUNG: Well, up and down the coast, people have been looking at this decision and wondering what it will mean for them. But just devil's advocate - why shouldn't somebody who invests millions of dollars, at this point, in their beachfront property expect that they have some privacy from their home down to the water?

TCHAO: I think it's a balance, and I think that when we look at beaches, and we look at how the public has used beaches all across the country, certainly private landowners own their property. But because these resources are limited and because often you get traditions of public use, there should be access for recreational use of these areas while respecting the private property ownership rights of the upland owners.

YOUNG: And by the way, is one of these oceanfront owners the former President H.W. Bush?

(LAUGHTER)

YOUNG: Doesn't he live there?

TCHAO: Very close, not on the beach itself. That's Walker's Point, which is also in the town of Kennebunkport, a few miles down the road on the coast.

YOUNG: It's kind of rocky. Yeah, it's kind of rocky.

TCHAO: Kind of rocky.

YOUNG: Amy Tchao, town attorney for Kennebunkport, Maine. Thanks so much for talking about a topic that is a very, very tough one on either coast. Thanks so much.

TCHAO: You're very welcome.

YOUNG: And your thoughts, especially our listeners on MPBN. Private property, public use? Let us know your thoughts, hereandnow.org. This is HERE AND NOW. Transcript provided by NPR, Copyright NPR.


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  • Kathy

    If you ever wondered how people decided that communism was a good idea and picked up red flags to storm the Winter Palace, the antisocial behavior of the 1% in instances such as this would be your first hint.

  • Cindy

    You shouldn’t be able to “own” the beach! The ocean and the waterfront should be available to all…

    • it_disqus

      Do beaches on lakes and ponds count? I don’t think anyone should be allowed to own them either so I can fish wherever I want.

  • mark

    Who would be responsible for hurricane damage? For example, would the property owner have to pay the Corps of Engineers for reclamation work? What are the implications for insurance coverage? Can the town increase the property valuation for taxes?

  • prodigalcat

    I have three things to say. First, what do their deeds say? Second, if the deeds say they own…’to the high tide mark’, or the ‘coastal feature’ or where vegetation ends: leaving much of the beach ‘open’ then they should shut their mouths and remember how VERY fortunate they are to live where they do and be magnanimous and share a tiny bit of their good fortune with others who are not. Third, if the deeds say their land extends ‘to the low tide mark’ they should remember how VERY fortunate they are to live where they do and be magnanimous and share a tiny bit of their good fortune with others who are not. Shame on them. And lest they think the high tax rate they pay entitles them to special treatment, they don’t get special treatment elsewhere in the town: a restricted lane, the best teachers, no line at the post office or town hall…

    • Sal’s dad

      In general, deeds in Maine and Massachusetts extend to LOW water, this dates to an explicit policy decision in the 1640′s.

      In the long run, this court ruling will lead to MORE rather than less public access to private property, and is in line with a long tradition of encouraging recreational use of private land.

      If you care about this issue, you really should read the court’s decision —
      Tinyurl.com/gooserocksdecision — it is surprisingly accessible, especially the discussion starting about page 16.

      And yes, those of us who own land on the coast of Maine are acutely aware of how fortunate we are. And willing to share; I can’t recall ever seeing a “no trespassing” sign along the water. Just, when you visit my property, please act responsibly, and clean up after yourself. Enjoy you walk, picnic, or cold swim!

      Sal’s Dad

  • Wendy Stevens

    If the home owners do now allow the public to use the beaches, then they should not expect public help if they are flooded or wiped out by waves.

    • it_disqus

      Why should anyone expect public help if they are flooded or wiped out by waves?

  • it_disqus

    If the government can give the public rights to these private properties then I want to have access to Bill Gates’ Hawaiian island, the next time I have a layover in Boston I want to be able to camp out in Robins back yard and I want to be able to fish in the big lake of the guy who lives up the road from me.

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