Maine high court hears arguments over access to Cedar Beach in Harpswell

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PORTLAND — The saga of Cedar Beach continued Wednesday, with attorneys arguing the case before the Maine Supreme Judicial Court.

The debate over public access to the sandy Bailey Island beach was set off in 2011, when landowners Charles and Sally Abrahamson blocked off the only road leading to the beach.

Residents and public access proponents formed the nonprofit Cedar Beach/Cedar Island Supporters and, in 2013, sued the Abrahamsons, arguing a public easement had effectively been created through years of continuous public use.

Nearby homeowner Betsy Atkins later intervened in the case through her Florida-based real estate company Gables LLC, and hired additional attorneys. She also bought the road, and property, from the Abrahamsons in the summer of 2014.

Money stacked up on the other side as well; at Town Meeting in 2014, Harpswell voters moved to appropriate $110,000 to help cover CB/CIS’s legal costs.

In a September 2014 ruling, Cumberland County Superior Court Judge Nancy Mills sided with CB/CIS, writing that the public, by using the road with the knowledge of, but without permission from the landowners, had established a prescriptive easement on the private road.

Gables appealed the Superior Court decision last December.

On Wednesday, Gables’ attorney Chris Chandler framed the case as “a couple, probably too nice for their own good,” who “got tired of an ungrateful public using their land” and responded by closing it.

“And they got sued,” he said.

Chandler argued the Superior Court had “clearly misapplied the law to the evidence,” which he said showed homeowners attempting to deny access to the property multiple times in the past 50 years, thus blocking the creation of an easement.

He also argued the decision should be reversed on the legal principle of laches, specifically that the plaintiffs had effectively waited for the deaths of key witnesses who could have supplied evidence.

The lower court relied on a “belief expressed by the public, rather than actions of the owner,” he argued.

On the other side, CB/CIS attorney David Bertoni described the dispute as a trial of mythical proportions.

He compared the litigation to the journey of Jason and the Argonauts. “It’s been a difficult path,” he said, but “we’ve proven by affirmative evidence” that an easement was indeed created across the private road.

The owners were at all times aware their property rights were being infringed upon, he argued, and they “had 20 years to act.”

“(In testimony), not a single person could say, ‘Nobody told me not to use this road,'” he added.

The law court justices clearly struggled with the wider implications of the issue being presented to them.

Public access to the ocean is a “critical resource in a state like Maine,” an “important public right since statehood,” Chief Justice Leigh Saufley told Chandler.

But, in voiding the landowner’s private property rights in this case, would a situation arise where “landowners will do things much worse for the public,” she asked. “Are we not encouraging violence on the land near the ocean?”

Bertoni, speaking after the proceedings, noted how hard it is to establish prescriptive easements in Maine. He has previously described the law court as being “increasingly unfriendly” to public easements.

“But if it not this case, what case?” he said. “It’s a real test” of whether the “doctrine of prescriptive easements” can still apply. “I believe we threaded that needle.”

Chandler agreed that the court is wrestling with a question of policy, much as it has for several years in the continuing dispute over property rights at Goose Rocks Beach in Kennebunkport (although the court’s most recent ruling in that case, which was first decided in 2000, suggested Goose Rocks should not have broader implications for beach access in other parts of Maine).

But, Chandler maintained, the Superior Court “misinterpreted” the facts of the case, so the law court should void the decision.

More than 50 people attended the proceedings, including Harpswell’s town attorney, Amy Tchao, who has also represented Kennebunkport in the Goose Rocks case. She said “the court is really struggling with the evolution of the law.”

When it comes to public access across private property, “(we need) clearer legal principles,” Tchao said, a statement that was also made by attorneys on both sides of the dispute.

“What are the rules of the game?,” she added. “We don’t have clear rules that all of us understand.”

There is no set date for the court to issue an order; Bertoni estimated, however, that it could take from three to six months.

Ever since Mills ruled that an easement had been established on Cedar Beach Road, public use of not just Cedar Beach, but all beaches in Harpswell has surged, according to town officials.

If the high court decides to reverse the decision, those beach-goers will have to find somewhere else to go.

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

Families swim at Cedar Beach in Harpswell in July. The fate of public access to the beach now lies with the Maine Supreme Judicial Court.

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.