Beaches and Private Property Rights

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2009 Year in Review: Goose Rocks Beach lawsuit rocks the town

By Laura Dolce
ldolce@seacoastonline.com
December 31, 2009 2:00 AM

KENNEBUNKPORT — It's pitted the town against some of its residents and neighbor against neighbor, and while it made news in 2009, the Goose Rocks Beach lawsuit will surely dominate conversation around town in the year to come as well.

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Maine's shorefront law is nebulous because of those 17th Century deeds, which I believe is part of the Lawyers Full-employment Act! :)

State laws vary:

California contends that beaches belong to the public and anyone has free access. Private property ends at the dune line. So the uber-wealthy at Malibu, for instance, sit on their decks looking at the Pacific while the general public traverses the beachfront in front of them. I've read that private security patrols along the beach are considered the standard cost of ownership for such beachfront properties!

New Jersey contends that the municipality owns the beach. If you visit the Jersey Shore, you must pay for a municipal day use or weekly badge - seasonals are only for permanent residents - to get access to the beach (proceeds go toward municipal costs to clean and groom the beach and for the employment of lifeguards). The only free beach is Atlantic City, which is maintained by the Boardwalk Merchants Association as a business lure (they also pay for the lifeguards). Some New Jersey towns make zoning or TIFF deals with developers. I walked along the beachfront at Long Branch and found sections with a "doorman" who granted access only to guests of the hotel across the street. They are cordoned off with ropes so that the public can pass down by the oceanline to get from one non-private part to another. The hotels are then allowed to operate guest-only cabanas, bars and cookouts in their section of the beach.

These issues are tricky, because it's a balance between the public's right to access shoreland and the rights of private property owners.

From what I've been told, the current Kport issues have arisen due to concerns from some longtime residents who feel the local police haven't been as responsive to noise, vandalism, trespassing and trash issues as they should have been. For instance, one of my friends who lives in a house on the beach awoke at 5:00 am to see a family setting up a tent in his yard. IN HIS YARD -- not on the beach in front of his house. He says the police weren't terribly responsive about the issue when he called them. He says there have been other trespassing incidents over the years, and nothing much has been done to curb them.

If this happened anywhere else in town, would the trespassers have been told to move, or else? You bet they would have been told just that. Nobody would feel they could just set up chairs, blankets, and get out the picnic baskets in somebody's backyard elsewhere in town. Why should it be tolerated next to the beach, on private property?

Why should beachfront property owners put up with strangers camping, urinating, and traipsing through their yards? There are plenty of public footpaths at GRB, but still, every year there are visitors who plain take advantage.

Meanwhile, the beachfront property owners are paying the highest tax rates in town.

There was a decision a few years back, by the Maine Supreme Court, in a case over the beach in Wells, ME. This was called the "Moody Beach Decision". This decision stated clearly that "the public has no recreational right to the intertidal zone (between high and low water marks) on saltwater beaches in the State of Maine!

The "Moody Beach Decision" ,of which I have a copy someplace, determined that in Maine, according to the old colonial law, that the upland property owner's (above high-water mark) ownership went to the low water mark. I have always believed that, since the original colonists all settled along the shore first, that this existed so that they would always have a right to water access. The Maine supreme court agreed with this in the decision. The public's rights to this intertidal zone were, and are, limited to "fishing, fowling and navigation". I believe most imterpet that to mean that those who wish to go there and dig clams, or harvest mussels or seaweed, or want to navigate a boat over it at high tide, or want to hunt sea ducks there, have the right to do so. The Moody Beach Decision clearly stated that the public had "no recreational rights to the intertidal zone", and that is what the state has fought in various ways.

Moody beach became a wild place with rowdyness and drunkeness and other nice behaviour, with many residents finding intoxicated belligerent people on their property as this spilled off of the beach. The suit ensued because of that.

I am not a lawyer but my dad always said that Maine was one of the only places this was the law. There may be others that I am not aware of.

The town of Deer Isle, where I used to live, did not tax the intertidal zone, but I don't believe that dimininshed the landowner's rights in any way. My parents owned shore property for most of their lives. They extended the use of it to anyone who bothered to ask. They got a bit uppity when some came along and decided to just "take" the use of it. Common courtesy goes a long way. And my family always extended the use of their property to commercial fishermen and clammers and musselers whenever.

They never thought wild drunken parties and hooligans on ATV's belonged on beaches and neither do I.

WC

WC - thank you for the input. Very interesting stuff.

I believe the attitude at GRB used to be much like your parents' - everybody exercised common courtesy and good sense, and there was no fuss on either side. Lately, that hasn't been the case, sad to say.

The beachfront owners are being villainized, and made out to be rotten, cold, heartless people who want to hog the beach all to themselves. The beachfront owners say otherwise, and that they're just asking for the same private property rights accorded to anyone who doesn't live right on the water.

In this case, the courts will decide, and the only "winners" will likely be the lawyers.

Yep. Ya can't just walk down to the waterfront anymore...it's trespassing; unless you are hunting, fishing, or clamming. And you can't use that excuse to linger awhile in a beachchair or beachcomb or picnic. Stand there and FISH, DIG CLAMS, SHOOT DUCKS, or leave. Course, I don't want you shooting the ducks...so I figure my right to enjoy my beach comes before your right to shoot a gun on it. Now there's one for the lawyers.

Woodcanoe: There is one other state with the same law, but which one it is, escapes me. Massachussetts maybe....................( dunno )......

And the poor dahlings, when the burden of owning ocean front property gets too great, can always sell - perhaps to that nice lawyer who argued the case?

And so it goes.

perhaps to that nice lawyer who argued the case?

Who will then (hopefully) use the proceeds of the resale to buy a couple new Dunkin' Donut franchises, preferably in the middle of a cozy, urban neighborhood.

And so it goes.

There's a much cheaper solution: no endless litigation, no frantic midnight calls to the police - get a big, nasty dog who has been raised on a steady diet of John Locke. Problem solved.

I do believe too, we, as taxpayers, subsidize the flood insurance on these beach front properties. Do correct me if I'm wrong!

charlie

and pay for the nuisance calls to the cops.

Tsk, tsk.

...a dog raised on a steady diet of John Locke.

I knew a dog who strongly held that “the only fence against the world is a thorough knowledge of it.”

To those of a certain rectitude, he was frequently forward to a fault. But he was goodhearted and open-minded toward strangers, nonetheless.

An English Mastiff, no doubt.

Doubt-free indeed, but still burdened complexly by both a super-ego and generations of inbred noblesse-oblige.

hey, man, careful with the French - it is a short, slippery slope from noblesse oblige to la propriété, c'est le vol!

I hope the homeowners lose this one. If they win, decades of public beach enjoyment would come to an end.

Francisz: Peut-être. Mais aussi force ne fait pas droit, et qu'on n'est obligé d'obéir qu'aux puissances légitimes.

Me, too, Charlotte. And I hope the nice lawyers get their fair share, and that the dog gets walked, and that the undocumented worker they hire to walk the dog gets a chance at “a better life” : think of a happy Dickens/Disney wrap-up, rather than the infernal pessimism of Zola/Balzac. Bleak House recast as Beach House.

Les trios: Je crois que vous parlez du contrat social, quand nous discutons, en fait, le contrat asocial...

Charlotte, in this case, I don't believe it's true. From what I've been told, the GRB owners would prefer to keep things the way they have always been - polite, respectful visitors would still be welcome on the entire beach. The beachfront owners simply want better enforcement if there are trespassers or violations of law.

We have a beach in Kennebunk that operates on much the same theory -- Parson's Beach. The whole property and beach is privately owned, but the beach is still open to the public, as long as they behave well. Given some of the things the Parsons owners have put up with over the years (theft, vandalism, trash, etc.), I think it's extraordinarily generous of them to keep it open at all.

Meanwhile, Franciz' envy syndrome seems to be in full swing today. Some of the GRB property owners live in what you'd probably consider a shack. Some have houses, but none of them are "McMansions" that I know of. 99% of them are generations-old, modest family beach cottages. Many of them are rented out during the summer, just to pay the taxes.

For instance:

...le contrat asocial.

"D'accord," le chien et moi disons.

Francisz – that neudachnik? Kavalerov syndrome, I'd say. No known cure, although litigation therapy is thought to be helpful, although it may be just placebo effect.

Let us know, next time someone sets up a tent in your back yard at 5:00 am without permission. We'll send over a couple of those "placebos." Should do the trick.

The beauty of the cozy, urban landscape is that no one wants to set up camp there. Besides, we have park benches where we actually encourage people to…to loiter. How subversive.

The dog might enjoy the company.

How very elitist of you.

Meanwhile, you might be surprised how many people would be HAPPY to set up camp in your cozy, urban backyard. Right next to the new Dunkin' Donuts franchise, coming soon.
lol

“Some of the GRB property owners live in what you'd probably consider a shack. Some have houses, but none of them are "McMansions" that I know of. 99% of them are generations-old, modest family beach cottages”. Naran

Naran…give me a break.

“None of them are McMansions”???

99% “modest family beach cottages"???

I suppose they are all using their DHS Debit Cards to pay the attorney’s bills too.

"I hope the homeowners lose this one. If they win, decades of public beach enjoyment would come to an end."

Gee, charlotte, try decades, nee over a century, of the public enjoying a private beach called Parsons.

Or, maybe let the neighborhood, enjoy your frontyard and backyard for the next couple of decades.

Back at ya!

Northarrow, I've walked that beach for 20 years, and by and large, I say the homes along GRB are pretty modest. Yes, there are SOME that are McMansions, but not the majority, by any means. I think there's more McMansions along Kennebunk beaches, these days.

I'm talking homes right on the water -- at GRB.

I'm not trying to say there are no rich folks living on GRB, but there are many, many property owners along that beach who (like the owners of Parsons Beach) inherited the property, live modestly, and work hard to pay their tax bills.