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Quick ruling sought for Harpswell beach access

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Quick ruling sought for Harpswell beach access

HARPSWELL — The group suing to open access to Cedar Beach is seeking a speedy and favorable resolution without trial in a lawsuit filed in Cumberland County Superior Court.

Cedar Beach/Cedar Island Supporters filed a joint motion for partial summary judgment and an order on the joint motion on Sept. 30.

The motion ultimately seeks to reaffirm an easement that allegedly exists in a deed and purchase-and-sale agreement for land owned by defendants Jonathan and Rachel Aspatore that would provide access to Cedar Beach for town residents.

The Aspatores must file their response to the joint motion by Oct. 21. The property owners recently said in their response to the civil complaint filed by CB/CIS that the lawsuit is "baseless" and the easement has no standing.

The defendants also threatened to sue another plaintiff, John Goodwin, whose family previously owned the Aspatores' land, over slander of title if he attempts to transfer easement rights to the town or anyone else.

In response, the joint motion for summary judgment seeks to remove Goodwin from any legal threat.

While the group's lawyer, Martin Eisenstein of Brann and Isaacson, declined to directly comment on the lawsuit, a recent CB/CIS newsletter titled said the group hopes for a favorable resolution by the end of the year.

In addition, Eisenstein on Tuesday said CB/CIS is still negotiating proposed easements with three other property owners to create an alternative path to Cedar Beach.

"It may be part of the solution with the Aspatores or maybe not," he said. "We're optimistic on that front as well."

The new court filings also include affidavits from Goodwin, Eisenstein and the Aspatores' next-door neighbor, Joan Lester, that reveal new details about the beach access dispute, which reignited last year.

In the motion, CB/CIS asks the court to declare that the Aspatores are "precluded from interfering with the exercise by the inhabitants of Harpswell of the rights of access and recreation use described in the Goodwin Deed."

The motion refers to an 1861 Maine Supreme Judicial Court case, Hodge v. Boothy, in which a judge determined that excluded rights in property sales are not transferred to the party who purchases the land.

"When the Aspatores bought the property from (the Goodwin Trust)," the filing claims, "the Goodwin Deed expressly excluded from the conveyance certain rights of access and recreational use by the Inhabitants of Harpswell over the property to permit them to reach and enjoy Cedar Beach and Cedar Island."

"By their acceptance of the deed 'as it is,' i.e., with the exclusion of rights reserved to others," the filing continues, "the Aspatores stand precluded under Hodge from interfering with the 'exercise of such rights' by the Inhabitants of Harpswell." 

The plaintiffs claim the Aspatores have interfered with access to Cedar Beach, made their intentions clear to continue to interfere by requiring "unprecedented and onerous conditions" to allow access, and threatened to sue Goodwin for slander of title.

Two drafts of the "unprecedented and onerous conditions" were included in Eisenstein's affidavit. They were drafted by the Aspatores and their lawyer, Judy Metcalf of Eaton Peabody, before the two sides ceased negotiations earlier this year.

Among conditions suggested in a May 6 letter from Metcalf to Eisenstein, the property owners would prohibit gatherings of more than eight adults on Cedar Beach, prohibit dogs and other pets,  limit parking on Robinhood Road to five marked spaces, and require the town to hire a police officer as a security guard from May to September.

Another condition would have revoked access to Cedar Beach if CB/CIS ever suspends operations or dissolves.

The May 6 draft was sent after Eisenstein said an earlier draft from April 25, which had many of the same conditions, surprised and disappointed Goodwin and other members of CB/CIS.

"There are many other objectionable conditions, but given the shortness of time I will not go into those in any detail," Eisenstein said in a April 26 letter to Metcalf. "I wonder why your clients and you have waited until April 25 to propose these conditions for the first time."

The affidavits in the lawsuit contain no sign of response from the CB/CIS lawyer after the May 6 draft of conditions were sent. 

"Perhaps your reticence is because you recognize that a burden on our land for the benefit of the inhabitants of the town should be directly negotiated with the town, not merely through the filter of your own group," Metcalf wrote in a May 30 letter to Eisenstein.

The Board of Selectmen then attempted to negotiate conditions with the Aspatores, but made no progress after failing to meet the property owners three times.

Chairwoman Elinor Multer said at the time that the selectmen were still willing to meet with the land owners.

But Metcalf had said in a statement before CB/CIS sued that any legal action could jeopardize negotiations with the selectmen.

On Sept. 23, a receptionist for Metcalf's law firm said the attorney will not respond to requests for comments pertaining to the lawsuit.

Even if CB/CIS is successful in reaffirming the easement, the group would still have to find a settlement with Charles and Sally Abrahamson, who have blocked beach access since 2011 on their privately owned portion of Cedar Beach Road.

A lawsuit the group filed against the Abrahamsons a year ago remains open in Cumberland County Superior Court.

Dylan Martin can be reached at 781-3661 ext. 100 or dmartin@theforecaster.net. Follow him on Twitter: @DylanLJMartin.