Harpswell beach access case closer to high court hearing

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HARPSWELL — The dispute over Cedar Beach access is a step closer to being heard by the Maine Supreme Judicial Court, after the Cedar Beach/Cedar Island Supporters filed a brief with the court on April 15.

The public can now walk across privately-owned Cedar Beach Road to Cedar Beach, after a September 2014 Superior Court decision by Justice Nancy Mills.

Mills issued a 73-page ruling siding with CB/CIS, the plaintiffs, in a lawsuit against the owners of the road. That ruling established a prescriptive easement on the 1,008-foot road, meaning the public has a legal right to use the private road to access Cedar Beach.

But the defendants in the case, Gables LLC, a real estate company owned by road owner Betsy Atkins, appealed to the supreme court in December. They filed their initial brief on Feb. 25.

The Supreme Judicial Court is Maine’s highest court, and the court of final appeal.

At Town Meeting on March 14, Harpswell voters approved a $110,000 direct appropriation to help fund the Cedar Beach legal fees after a request from CB/CIS.

The brief submitted on April 15 by CB/CIS responds to arguments posed by Gables’ February brief.

“Gables Real Estate, LLC, would have the Law Court believe that Justice Mills’ decision is a blatant over-extension of the law of public prescriptive easements,” it says.

The plaintiffs maintain, however, that this is a “textbook case” of the circumstances under which a public prescriptive easement can arise.

They argue that an easement was established because the public continuously used the road without permission from the owners, and as the owners would use it, for not less than 20 years.

In a phone interview, attorney David Bertoni, who represents CB/CIS, said he is confident the Maine supreme court will also rule in favor of the Cedar Beach supporters.

“(Gables) has to show that the facts … compel only one result,” he said. Given Mills’ extensive ruling in favor of the plaintiffs, it would be very difficult to make the case that the court had erred so significantly, he said.

He also expressed hope because the high court recently amended its decision in a property-rights case on whether the public should have access to Goose Rocks Beach in Kennebunkport.

In that opinion, issued in December, the court stated that “the public’s access to scarce resources such as sandy beaches in Maine is a matter of great importance and extraordinary public interest.” The ruling will allow the town of Kennebunkport to argue for access to the beach on a parcel-by-parcel basis, rather than for property access to the entire beach.

Bertoni said that decision did not appear in the original opinion in the Cedar Beach case.

He said he expects the court will hear oral arguments, saying it’s only in “rare cases” that the court will consider an appeal without them.

The defendants have until April 29 to file a reply brief. In an email on Tuesday, Ben Leoni, who represents Gables LLC, confirmed that they would file a response.

Like Bertoni, he said he expects the case will go to oral arguments.

Walter Wuthmann can be reached at 781-3661 ext. 100 or wwuthmann@theforecaster.net. Follow Walter on Twitter: @wwuthmann.

Brunswick/Harpswell reporter for The Forecaster. Bowdoin College grad, San Francisco Bay Area native. Follow for municipal, school, community, and environmental news from the Midcoast.