Until the Maine Supreme Court’s 1989 ruling in Bell v. Town of Wells, better known as the Moody Beach suit, most people in Maine believed and behaved as though the intertidal zone was in the public domain.
Unfortunately, one of the negative effects of having once been part of Massachusetts is that Maine is one of five states in the nation (New Hampshire, Massachusetts, Delaware and Virginia being the others) in which the upland owner owns to the mean low water mark. In all other states, the upland owner owns to the high water mark, which is as it should be.
The only expressed rights the public has in the intertidal zone in Maine are for “fishing, fowling and navigation.”
Now we have just seen a rerun of the Moody Beach suit at Goose Rocks Beach in Kennebunkport, where 29 of the 110 beachfront property owners sued to quiet claims to the recreational use of the two-mile sand beach by some 200 back-lot owners, the town, and the general public. The case is known as Almeder v. Town of Kennebunkport, and the beachfront property owners won again.
I spent a couple of hours reading the 200-plus-page deposition of the lead plaintiff, Robert F. Almeder, and it made for an interesting, insightful read.
Almeder is a Massachusetts native who spent most of his career teaching philosophy at Georgia State University. After the great blizzard of 1978, Almeder was able to buy a wreck of a cottage on Goose Rocks Beach, a structure that had been inundated by the storm surge and filled with sand and dead birds. He fixed it up and rented it out over the years and retired to his seaside cottage in 2005.
In his deposition, Almeder comes across as a reasonable guy who just wants to clear up who has a right to use the beach.
“The goal of the litigation,” he explains, “is to get a declaratory judgment from the court on whether or not the public or any other individuals have acquired recreational rights as a result of unopposed usage over time on Goose Rocks Beach.”
He explains that he and the other plaintiffs sued after the town refused to post signs designating public and private sections of the beach. Almeder also notes that some members of his own family opposed the lawsuit.
Going to court to establish that others have no right to use your beach is not a move calculated to make one popular with the neighbors. “There need not be any closing of the beach that they seem to be fearing,” Almeder insists. “After all, it has always been used permissively. There’s no reason to suppose that it wouldn’t continue that way in the future.”
So Almeder and his fellow plaintiffs don’t really want to kick people off the beach, they just want to establish that they have the right to do so. It’s a control thing.
Curiously, Almeder’s own deed did not state that he owned to the mean low water mark until 2007 when, as he explains in his deposition, he performed a legal maneuver designed to establish his ownership of the beach. First, he deeded the cottage to one of his daughters, adding the mean low water mark as the southerly boundary, then she deeded the property back to him and his wife with the low water mark language in the deed. Pretty slick.
Prior to that maneuver, the only waterfront boundary on the property was a reference to “along the sea wall.” And that suggests that until fairly recently, even the cottagers on Goose Rocks Beach did not understand themselves to own the beach to low tide.
When it comes to public access, I’m with The Forecaster’s “Policy Wonk” columnist, Orlando Delogu, who advocated the public purchase of Maine’s extremely limited sand beaches in these pages a couple of weeks ago. Some people seem to think that would cost a fortune in scarce public funds, but I’m not convinced that has to be the case.
Almeder’s cottage on Goose Rocks Beach is appraised at nearly $1.74 million. Of that, almost $1.47 million is for the third of an acre of land it sits upon. An argument could be made that, if he actually owns to the low tide mark, Almeder owns much more than a third of an acre and therefore has been under-assessed and under-paying his property taxes all these years, as have his fellow beachfront property owners.
I suggest the town run the numbers and look into taking the beach for back taxes.