Scarborough hopes to gain public easement for beach path

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SCARBOROUGH — The future of a path that has historically allowed pedestrian access from King Street to Pine Point Beach might be getting a bit clearer.

According to a Dec. 21 opinion from town attorney Durward Parkinson, even if Scarborough transfers ownership of Avenue 2 to an abutter, an easement would ensure that the public will be able to continue using the path.

The dispute between some Pine Point residents and property owner Charles Gendron, whose land is cut by the 50-foot right of way or “paper street” that  separates his home from Gables by the Sea condominiums, revolves around beach access.

Pine Point resident Susan Hamill was one person who previously urged the town to retain its “ownership” of Avenue 2.

“(Town councilors) get elected to be stewards of the town’s assets. It’s our asset,” Hamill said last spring.

But whether the paper street is technically the town’s has been the topic of debate.

A paper street is one that exists on a map, but has never formally been recognized by a municipality. In the last decade, the town has discontinued two paper streets: Avenue 5 in 2006 and Avenue 6 in 2007. Parkinson, in his legal opinion, said Avenue 2 was likely dedicated to the town as far back as 1880.

In the 1970s, the state urged all municipalities to dissolve their paper streets over the next two decades. In 1997, when municipal ownership of paper streets was due to expire if the streets weren’t officially incorporated, towns and cities could choose to give up the streets or request a 20-year extension to decide which streets to keep.

Scarborough, by neither incorporating Avenue 2, nor opting for an extension in 1997, essentially forfeited its right to retain ownership of the street if an abutting property owner – Gendron, for example – asked the town to discontinue the public right of way.

Gendron, however, has been willing to granting an easement to the town for the sake of preserving access to the ocean.

The question, then, is whether access to Avenue 2 would be at risk if ownership reverts to Gendron, even if an easement is granted.

Parkinson’s response: Not likely.

The attorney, citing precedent in the case of Almeder v. Town of Kennebunkport, also known as the Goose Rocks Beach case, recommended that the town opt not to establish a prescriptive easement on the path. In other words, not attempting to retain ownership of the parcel would be in the town’s best interest.

Primarily because there are no formal records of public use on the local right of way, and because there is also no evidence in town records or from a former landowner “that shows specific objection to the public’s using the parcel to reach the beach,” it would be difficult to form a case around the argument that the town has a legal right to the path, Parkinson said.

Also, because the town’s recorded uses have not been well documented, Gendron could likely prove in court that he, as a property owner, holds the title, Parkinson said.

“Ultimately, the town’s goal is to ensure that it protects any rights that it may already have in the parcel,” Parkinson wrote, “and make sure that the public remains able to use the parcel to access Pine Point Beach and the Atlantic Ocean.”

“Based on these goals … we would suggest that the town accept a grant of a public easement from the property owner,” Parkinson said, calling it a “conservative approach that accomplishes the town’s goals, while avoiding further litigation to settle the issue of the parcel’s ownership.”

The town, he said, “is likely not disavowing itself of any legal title in the parcel,” and “accepting a public easement is merely a method for the town to hedge its bets in this regard.”

Town Manager Tom Hall and former Town Council Chairman Bill Donovan have been working with Gendron to reach a solution that will ensure the public can maintain access, while also preventing further development on the property that might inhibit public access.

The council will meet in executive session Wednesday, Jan. 4, to further discuss the matter, and a workshop is scheduled for Wednesday, Feb. 1, to allow public input.

If the town decides not to transfer ownership to Gendron, he could sue. But the goal is to “avoid a potentially costly legal battle and end up where we want to be (and be) all the better for it,” Hall said.

Alex Acquisto can be reached at 781-3661 ext. 106 or aacquisto@theforecaster.net. Follow her on Twitter: @AcquistoA.

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Avenue 2, a paper street off King Street in Scarborough, last April. It has been used for decades as a path to Pine Point Beach.

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South Portland and Scarborough reporter for The Forecaster. Graduate of Western Kentucky University and the Salt Institute for Documentary Studies. Alex can be reached at 781-3661 ext. 106.