Almeder v. Town of Kennebunkport
| Decision Date | 04 February 2014 |
| Docket Number | Docket No. Yor–12–599. |
| Citation | 2014 ME 139,106 A.3d 1099 |
| Parties | Robert F. ALMEDER et al. v. TOWN OF KENNEBUNKPORT et al. |
| Court | Maine Supreme Court |
Sidney St. F. Thaxter, Esq. (orally), David P. Silk, Esq., and Benjamin M. Leoni, Esq., Curtis Thaxter, LLC, Portland, for appellants Robert Almeder et al.
Christopher E. Pazar, Esq., Drummond & Drummond, Portland, for appellants Janice M. Fleming, Terrence G. O'Connor, and Joan M. Leahy.
Amy K. Tchao, Esq. (orally), Melissa A. Hewey, Esq., Brian D. Willing, Esq., and David M. Kallin, Esq., Drummond Woodsum, Portland, for appellee Town of Kennebunkport.
André G. Duchette, Esq. (orally), and Gregg R. Frame, Esq., Taylor, McCormack & Frame, LLC, Portland, for appellees “TMF Defendants.”
Richard J. Driver, Margarete M.K. Driver, Alexander M. Lachiatto, and Judith A. Lachiatto, pro se appellees.
Adam Steinman, Esq., Cape Elizabeth, for appellee Surfrider Foundation.
Janet T. Mills, Attorney General, and Paul Stern, Dep. Atty. Gen. (orally), Office of Attorney General, Augusta, for appellee State of Maine.
John A. Cunningham, Esq., and Noreen A. Patient, Esq., Eaton Peabody, Brunswick, for amicus curiae Maine Forest Products Council.
Brian P. Winchester, Esq., Augusta, for amicus curiae Maine Snowmobile Association.
Ivy L. Frignoca, Esq., Portland, for amicus curiae Conservation Law Foundation.
Sydney St. F. Thaxter, Esq. argued, for all appellants.
Amy K. Tchao, Esq. argued, for appellee Town of Kennebunkport.
André G. Duchette, Esq. argued, for appellee “TMF Defendants.”
Paul Stern, Dep. Atty. Gen. argued, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.*
[¶ 1] Robert F. Almeder and twenty-eight other owners of property fronting Goose Rocks Beach in Kennebunkport (the Beachfront Owners) appeal from a decision of the Superior Court (York County, Brennan, J. ) awarding the public a recreational easement over both the intertidal and dry sand portions of the Beach. The Beachfront Owners argue that the court erred in (1) permitting the State and neighboring landowners to intervene, (2) awarding a prescriptive easement and an easement by custom to the public users of the beach, and (3) determining that the public had rights concerning the intertidal zone of the Beach pursuant to the public trust doctrine. The State cross-appeals,1 arguing that the court erred in limiting the activities allowed in the intertidal zone pursuant to the public trust doctrine. We vacate the judgment and remand a portion of the case to the Superior Court.
[¶ 2] Goose Rocks Beach is a two-mile stretch of beach located in Kennebunkport.2 There are 110 parcels of property directly abutting the Beach owned by ninety-five separate owners. Nine of the lots are owned by either the Town or the Kennebunkport Conservation Trust. The Beach has five public access points and 173 public parking spaces on two abutting roads.
[¶ 3] In October of 2009, the Beachfront Owners3 initiated proceedings in the Superior Court against the Town and all others who claimed any title or right to use the Beach. Each Beachfront Owner sought (1) a declaratory judgment affirming his or her ownership and exclusive right to use that portion of the Beach abutting his or her parcel down to the mean low-water mark, “subject only to the public rights of usage in the Intertidal Property established by the Colonial Ordinance of 1647,” and (2) to quiet title to his or her claimed Beach property.
[¶ 4] The Town asserted nine counterclaims alleging its ownership of the Beach and the public's right to use the Beach. Approximately 200 owners of property located in the Town's Goose Rocks Zone, but not directly on the Beach (the Backlot Owners), also intervened and filed counterclaims.4 Finally, the State intervened as a defendant to represent the public's interest in its use of the intertidal zone pursuant to the public trust doctrine, but did not assert any of its own causes of action. In all, the various parties asserted some sixty-three causes of action; by the time of trial, only sixteen of these remained for decision.5
[¶ 5] With the agreement of the parties, the court scheduled a bifurcated trial to first address the use-related claims that were still pending, and saved for the second portion of trial those claims related to title. In August and September of 2012, the court heard the first portion of the matter in a two-week trial during which sixty-six witnesses testified. The causes of action before the court in that first portion of the bifurcated trial were (1) the Town's and the Backlot Owners' claims alleging prescriptive easements over the entirety of the Beach, and (2) the Town's claim for an easement by custom.6 Despite its failure to assert a counterclaim or cross-claim, the State was permitted to argue regarding the application of the public trust doctrine to the intertidal zone of the Beach.
[¶ 6] By partial judgment dated October 16, 2012, the court made the following findings of fact.7 In colonial times, the Beach was used as a public highway as well as for harvesting seaweed, clamming, driving livestock, and providing access to marshland for cutting hay. Starting in the 1800s, the Beach became a popular tourist destination, resulting in the construction of hotels and guesthouses, a bowling alley, a casino, shops, restaurants, and “auto-trailer” camps on the land abutting the Beach. The court found that from the late 1800s through the 1940s, the Beach was used “for a full range of recreational activities, including walking, swimming, sun bathing and a variety of beach related games.” After a fire swept through the area in 1947, the rebuilt properties around the Beach had a more residential and less commercial character, but the Beach was still used for recreational activities.
[¶ 7] The Town began imposing regulations on the use of the Beach in the 1700s, including some regarding livestock, clamming, and seaweed harvesting. More recently, the Town has established regulations concerning dogs and fires on the Beach and parking near the Beach. From the 1950s to the 1990s, the Town provided lifeguard service for the Beach; the lifeguard stand was located near the “public” part of the Beach, but the lifeguards patrolled the full length of the Beach and gave swimming lessons to the general public. In 1994, the Town discontinued the lifeguard service and “replaced it with a police officer dedicated to serve the Beach.” The Town has also used its funds to promote the Beach to tourists and to provide bus service to and supervision for children at the Beach during the summers. The court found that “from the early 1900[s] the Town has consistently encouraged and facilitated the use of the Beach by the general public.”
[¶ 8] The court found that “while people tended to use the area in front of their own properties or near a public access point most frequently, nearly all used the Beach ‘from river to river’ frequently depending on what activity was being undertaken at the time.” Although the use of the Beach is most intense in the areas of the Beach owned by the Town, people regularly use the full length of the Beach year-round to walk, play in tidal pools, collect sand dollars, play softball, ride horses, and cross-country ski, and to access the water for boating, water-skiing, windsurfing, kayaking, snorkeling, rafting, paddleboarding, and tubing.
[¶ 9] Beachgoers have not asked the Beachfront Owners for permission to use the Beach for these general recreational purposes because they felt they had a right to use the Beach for such purposes. They have asked permission from the relevant Beachfront Owners for activities beyond “ordinary beach type recreational uses,” however, such as storing boats on the dry sand or hosting a party or wedding on the Beach.
[¶ 10] The Beachfront Owners have requested that beachgoers leave the property when beachgoers were drinking alcohol or engaging in loud, disruptive, or potentially dangerous activities. Rarely has a Beachfront Owner otherwise ever requested that a beachgoer “move along.” Testimony indicated that it would be impractical to ask beachgoers engaged in ordinary recreational activity to leave.
[¶ 11] Although several Beachfront Owners have, in recent years, posted ‘no trespassing’ signs around their properties, the signs were intended to keep people off of the Beachfront Owners' landscaped property and private access ways rather than any portion of the sand itself. As to the wet or dry sand portions of the Beach, the court found that beachgoers would have ignored the signs and continued to use the Beach as they always had. Many of the Beachfront Owners also have offered their homes for rent, and have not given their tenants any instructions that limit their use of the Beach.
[¶ 12] On these facts, the court determined that the Town, the Backlot Owners, and the public enjoy a public prescriptive easement as well as an easement by custom to engage in general recreational activities on both the wet and dry sand portions of the entire Beach.8 The court also found that the State had established, pursuant to the public trust doctrine, that the public's right to fish, fowl, and navigate includes the right to cross the intertidal zone of the Beach to engage in all “ocean-based” activities, which it defined as such “waterborne activities as jet-skiing; water-skiing; knee-boarding or tubing; surfing; windsurfing; boogie boarding; rafting; tubing; paddleboarding; and snorkeling,” but not including “swimming, bathing or wading; walking; picnicking or playing games.” The court denied the Beachfront Owners' motion for additional findings of fact and conclusions of law. See M.R. Civ. P. 52(b).
[¶ 13] The court granted the Town's, the TMF Defendants', and the State's motions for entry of a final judgment pursuant to M.R. Civ. P. 54(b)(1)...
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