High court strikes Cedar Beach easement, but owner may still allow access

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HARPSWELL — The Maine Supreme Judicial Court on Tuesday vacated a lower court ruling that allowed a public easement on the road to Cedar Beach.

The decision to send the case back for reconsideration means Cedar Beach Road, the only way to reach the Bailey Island beach by land, is again privately controlled.

But the town manager and an attorney for the road’s owner, Betsy Atkins, of Florida, suggested Wednesday that Atkins may continue to allow public access.

The public has enjoyed access to Cedar Beach since a Cumberland County Superior Court judge ruled in September 2014 that a prescriptive easement existed on the private road. The court held that by using the road for years with the knowledge of, but not permission from, the owners, the public had effectively established an easement over the property.

In the following months, public use of Cedar Beach, as well as other beaches in town, has surged, partly due to the high-profile case.

But beach-goers might have to find a new spot. The high court on July 19 ruled in favor of the property owner, voiding the county court-established public easement and returning access rights to the road owner.

Atkins was not the original litigant in the case, which began when landowners Charles and Sally Abrahamson blocked access to the road on Labor Day 2011.

Public access advocates, organized as Cedar Beach/Cedar Island Supporters, sued the Abrahamsons in 2013, and received $110,000 from the town the next year to help with legal costs.

Atkins, who owns another home on Cedar Beach, purchased the section of private road that was in dispute from the Abrahamsons in 2014 through her Florida-based real estate company, Gables LLC.

She bought the road for $95,000, according to town property transfer records, and hired additional attorneys for the case.

Atkins lost the case in Superior Court, though, which allowed members of the public to walk the 1,008-foot road to the beach. She appealed the decision to the state supreme court.

The court heard oral arguments last November. The crux of the CB/CIS argument, supported by Superior Court Judge Nancy Mills in a 73-page ruling, was that the public, in its use of the road, had met all the legal criteria to establish a prescriptive easement.

But the Supreme Judicial Court, in an opinion written by Justice Joseph Jabar, disagreed with key elements, in particular the argument that members of the public, by “mow(ing) down” with a pickup truck the fences roadowners had erected between 1978 and 1980, had established the element of adversity.

Adversity, in this case, means “a claim of right adverse to the owner.”

“‘One or two incidents over a period of decades do not sufficiently establish adversity,” Jabar wrote. Instead, the installation of fences by private owners was an act of nonacquiesence, which interrupted a prescriptive easement claim.

“The record compels us to determine that (the owners) established nonacquiesence by the erection of the chain-link fence, thereby defeating the claimants’ action for recognition of a public prescriptive easement as a matter of law,” the justices concluded.

Supporters of public access to the beach lamented the decision.

“We have terrible news. Maine’s highest court, the Law Court, ruled this morning on Gables’ appeal and reversed the favorable Superior Court decision that the public has a prescriptive easement (i.e. right to use) Cedar Beach Road to get to the beach,” Tom Brudzinski, a member of CB/CIS, wrote in an email to supporters Tuesday.

He indicated the group may file a motion for reconsideration, which must be done within 14 days.

The attorney for CB/CIS did not immediately respond to a request for comment.

But Christian Chandler, an attorney representing Atkins, said in an interview the ruling may not mean an end to public access.

“This doesn’t necessarily mean that public access is going to be denied,” he said. “What it means is, private property owners have a right to control their property.”

The case reinforces the notion that “if the public doesn’t sort of convey common courtesy and things of that nature, the landowner has the right to withdraw that permission,” he said.

According to Chandler, the case started because the Abrahamsons had issues with the way the public was using their land, and blocked it off as a last resort.

“The idea, at least as of today … is to allow access over the road so long as it doesn’t otherwise impinge on the comfort of the neighbors and everything else,”
he said. “It may be more limited than, for example, everyone that comes to Harpswell. … We don’t know yet, we’re trying to figure that out.”

Harpswell Town Administrator Kristi Eiane on Wednesday said she had received a call from Atkins, who said public access would be allowed for another year, under the terms of the current easement.

The easement rules limit access to Harpswell residents, nonresident taxpayers, and their guests, and include prohibitions on dogs, fireworks, and large gatherings.

“I’m very pleased that she has come forward to offer that (the beach) may continue to be used … I think it’s pretty generous,” Eiane said.

She said Atkins indicated she will decide whether to continue to allow public access on an annual basis.

“My sense was that … the decision would be based on how well the rules were adhered to,” Eiane said.

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

Visitors enjoy Cedar Beach on Bailey Island on a summer day in July 2015. The Maine Supreme Judicial Court struck down a public easement leading to the beach July 19, but the owner of the easement, Betsy Atkins, has indicated she may allow public access on a conditional basis.

A signs celebrates the September 2014 court decision allowing public access to Cedar Beach on Bailey Island.

Wendy Lefavor, of Orr’s Island, organizes handpainted “Save Cedar Beach” signs in her garage before a Cedar Beach/Cedar Island Supporters fundraising event in September 2013.

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.