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Cedar Beach ruling could take months

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Cedar Beach ruling could take months

HARPSWELL — Both sides have had their day in court, but it could be months before a judgment is handed down in the lawsuit over public access to Cedar Beach.

Trial proceedings in the case wrapped up May 29, after more than two days of testimony in Cumberland County Superior Court.

Although a ruling from Justice Nancy Mills is not expected until at least the end of July, lawyers from both sides are expressing confidence in their positions.

On Wednesday, a trial transcript was being prepared, and attorneys will have two weeks after its release to file post-trial briefs with the court. 

The Cedar Beach/Cedar Island Supporters group, plaintiffs in the case, are asking the court to grant an easement on a section of Beach Road owned by Charles and Sally Abrahamson.

If the case is decided in favor of CB/CIS, the Abrahamsons will have to allow the public to use the road to walk to Cedar Beach, the subject of a four-year struggle between private landowners and advocates for public access.

The Board of Selectmen in March signed an agreement with property owners to ensure access to part of the beach. Harpswell voters will go to the polls on Tuesday, June 10, to decide whether to allocate $5,200 to fulfill the town's duties under the agreement.

In the lawsuit, at issue is whether the road was posted against the establishment of an easement more than 60 years ago. 

The plaintiffs argue that an alleged posting of the road in 1962 never occurred and the public was not adequately informed that foot traffic along the road was prohibited, allowing a public easement to develop on the road over 20 years. 

The road was posted against an easement in 1987 and again in 1999, before the Abrahamsons finally fenced off the beach.

The defense insists that the road was posted and that subsequent landowners did everything they could to make it clear the road was private property, and therefore interrupted the development of an easement.

David Bertoni, the plaintiffs' attorney, said no witness could testify that the road itself was posted.

"One of the questions the court will face is whether they've proven that this alleged 1962 posting took place," Bertoni said. "I don't think they've proven it." 

"They're really reaching. The case they've put on doesn't really in my opinion reach the point of having adequately communicated to the world that 'you're not supposed to be doing this.'"

Ben Leoni, representing the Abrahamsons, said the argument that there was no previous posting is specious. 

"The evidence conflicts with that assertion," Leoni said. People called by both the plaintiffs and defense testified that signs and a fence were erected on the road after 1962, clearly marking it as private property, he claimed. 

The case is really about the rights property owners have to restrict public access, particularly when people abuse their privileges by littering or acting inappropriately – issues with which the Abrahamsons contended before closing beach access, Leoni added.

"It's interesting to me that at Cedar Beach, people aren't talking about that," Leoni said. "Instead, it's demonizing Charlie Abrahamson."

The firm of Curtis Thaxter was hired to represent Gables LLC, another defendant in the case, about a month before the original April trial date, Leoni noted.

Gables is owned by Betsy Atkins, who owns a home near Cedar Beach and has a right-of-way to the road. Atkins joined the lawsuit as a defendant after it was filed in 2012.

Curtis Thaxter has handled other cases regarding public beach access. Most recently, it represented Kennebunkport property owners in a high-profile suit over public access to Goose Rocks Beach.

The Maine Supreme Court is still considering the outcome in that case, after agreeing in April to reconsider its ruling in favor of the property owners.

Leoni said it is too early to tell whether a final ruling on the Cedar Beach case will also be brought of the state's highest court, but insists prescriptive easements are a "very dangerous" way to ensure public access to private land. 

If more public prescriptive easements cases are successful, he said, it could frighten landowners into posting their property against public use, in order to prevent the development of permanent public access. 

"It's a classic case of unintended consequences," Leoni said. 

Peter L. McGuire can be reached at 781-3661 or pmcguire@theforecaster.net. Follow him on Twitter @mcguiremidcoast.