Harpswell beach access proponents ask high court for do-over

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HARPSWELL — The sun was shining Tuesday afternoon, and at least 30 people soaked up the rays at Cedar Beach.

In Portland, meanwhile, Cedar Beach/Cedar Island Supporters filed a 16-page motion for reconsideration in response to a July 19 ruling by the Maine Supreme Judicial Court that struck down a lower-court decision securing a public easement on an access road to the beach.

Their hope is that the public will be able to continue to enjoy sunny summer days on the Bailey Island beach.

“We think (the court) made an error,” CB/CIS President Mike Helfgott said in an interview Monday.”We’d be ill-advised to throw in the towel when we’re this far along.”

“Like any human institution, even the highest court can make errors,” attorney David Bertoni, of Lewiston-based law firm Brann & Isaacson, said. Bertoni argued the case before the supreme court and drafted the motion for reconsideration.

The reconsideration identifies two possible errors in the court’s ruling, one legal and one factual.

Bertoni argues the court built its case on a factual inaccuracy that suggests land owners made an intentional, timely effort to prevent the public from accessing the beach via the road. But Bertoni points out that the barrier was erected after the requisite 20-year window of public use of the road that is necessary to establish an easement. He claims the higher court failed to properly check the facts used against his clients in the lower trial courts.

Bertoni also argues that the court operated under an outdated test of adversity. In legal terms, adversity means “a claim of right adverse to the owner.” Bertoni explains that test of adversity has changed, citing the outcome of the Almeder v. Town of Kennebunkport ruling in 2014. 

Filing for reconsideration is the only legal action the group can take moving forward, since the U.S. Supreme Court does not hear appeals on matters of state law. After the court’s ruling, CB/CIS had a 14-day window to file a motion for reconsideration.

Since access to the beach was initially threatened, CB/CIS has fought to ensure the public’s legal right to the beach access road. Helfgott said he feels obligated to keep fighting, to not to give up on “the people who have worked with us over the last four or five years.”

He said enough of the group’s time and money have gone into the effort that it would be “crazy” for CB/CIS not to pursue any option left to regain a prescriptive easement on the road.

There is reason to believe, however, that the proverbial towel wouldn’t necessarily be thrown in if CB/CIS abandon their legal fight.

Betsy Atkins, who owns and controls the road, has said she will continue to allow the public to use the road for the remainder of the year. She indicated that she will renew access on an annual basis.

But Helfgott, while acknowledging the kindness of her intent, takes issue with the conditional nature of Atkins’ permission, since access to the beach would rely entirely on the generosity of a single person who can change her mind at any time.

He called it a state of insecurity that “cries out for action and discussion.”

“In other words,” Helfgott said, “the behavior of people using the beach could be perfect, and she could still withdraw” her permission.

Legal protection is the most secure way to preserve the beach for “the people in their 80s that have been going there their whole lives” as well as “those kids who aren’t even born … that might be the first generation without the beach,” he said.

CB/CIS is also moving forward on other paths.

Its annual meeting at Library Hall on Bailey Island on July 26 was attended by nearly 50 people, and a second meeting was scheduled the next night to accommodate those who couldn’t attend.

The group intends to “aggressively” educate visitors on Cedar Beach’s rules and etiquette. “We are going to do the best we can to ensure people act impeccably,” Helfgott said, and hopes that by making beach-goers “perfect stewards” of the area, Atkins or any future arbiter of the road will not have reason to withdraw access.

He said CB/CIS is “talking about a much more active public relations campaign,” that may include letters to the editors of local newspapers, and posting advertisements around town. There are already signs on the beach outlining the rules (for example, no dogs allowed), but they have not prevented infractions from taking place and circulating their way back to Helfgott, and, theoretically, Atkins.

CB/CIS also hopes beach-goers will help enforce the rules. The town already employs personnel to monitor the beach, but the monitor is not present every day. “We are asking people to be active monitors in addition to the paid monitor,” Helfgott said.

Though he acknowledged that “the odds are long” that the high court will grant a hearing for reconsideration, Helfgott is optimistic.

“I’m a glass half-full kind of guy,” he said. 

“The court wants to get it right,” Bertoni added, affirming Helfgott’s optimism.

Callie Ferguson can be reached at 781-3661 ext. 100 or cferguson@theforecaster.net. Follow Callie on Twitter: @calliecferguson.

Cedar Beach on Tuesday afternoon, Aug. 2, the day Cedar Beach/Cedar Island Supporters filed a motion for the Maine Supreme Judicial Court to reconsider its decision striking down a lower-court ruling that allowed public access to the Bailey Island beach.

A sign on Cedar Beach Road explains public access rules. Cedar Beach/Cedar Island supporters hope to educate the public on proper beach ettiquette.