As many of you know, the Town of Kennebunkport has been sued by a few homeowners, and is fighting for the rights of the general public, as opposed to private individuals. We can all help in that fight, either through supporting the town’s site with information, www.preservegooserocksbeach.org, or as voters helping support a budget item on June 12.
However, there is another option for many of you that have enjoyed the Goose Rocks Beach beaches for 20 or more years (either individually or in connection with the prior owners of your property). The attorneys at Taylor, McCormack & Frame, a Portland firm recommended by Durward Parkinson, are handling the suit engaging individuals who wish to establish their historical rights on record, independently of the Town of Kennebunkport. If you wish to explore your individual rights to use Goose Rocks Beach, you can contact Gregg Frame at GFrame@TMFAttorneys.com or 207-828-2005.
Below, as a comment, please find the attorneys’ email to interested parties that explains many nuances. At the rate things are going, we will have well over 125 participants by this weekend, hopefully more to follow!
For those of you that may not have read this story earlier, I just updated my earlier, optimistic count of 50 people in the suit to 125! Huge numbers, and your voices will make a difference.
April 20, 2010
To: Residents and Other Interested Persons of Goose Rocks Beach
Re: Goose Rocks Beach Litigation
I trust that this letter finds you well and preparing for a summer at Goose Rocks Beach. By now, you have received a communication from Save Our Beaches, the community organization that focuses on appropriate and consistent access to Goose Rocks Beach. I would like to follow up on that communication.
As you are no doubt aware, there is litigation pending in York County Superior Court regarding the right to use Goose Rocks Beach. This litigation could have major implications on your right to use the beach. As a result, a number of individuals are banding together to assert their rights to use the beach, as they have for years. By copy of this letter to you, we are offering you the opportunity to join that group of individuals to assert your right to enjoy Goose Rocks Beach in the future. Here is some background information for you.
The Lawsuit
A number of beachfront owners brought this litigation, naming the Town of Kennebunkport and “All Persons who are Unascertained” as Defendants. The crux of the lawsuit is that the beachfront owners want the court to declare the area between their homes and the ocean to be their property, and to severely limit the rights of the public to use the beach and engage in recreational activities in that area. In the interest of brevity, this is an oversimplification of the litigation, but it does underscore the intent of the beachfront owner plaintiffs. It is important to note, too, that not all beachfront owners have joined in this litigation, and indeed, some beachfront owners may join with other defendants in opposition to this action.
What are the Difference Between Public Rights and Private Rights?
The Town will be seeking to allow the public to use the beach. That attempt, if successful, will likely involve severe limitations on what the public can do, and will likely be inconsistent with your use as a neighbor and long-time user of the Beach. By contrast, we will be asserting a private right to use the Beach for each client in a manner consistent with their use over the years.
Why I Should Join In?
If successful for the beachfront owner plaintiffs, this litigation will mean that the activities that you have enjoyed on Goose Rocks Beach for the duration of your time as an owner or visitor will be proscribed. It would no longer be permissible for you to sit on the beach and read a book, or bring a picnic to the beach, or swim or wade in the ocean. The activities you would be limited to would be “fishing, fowling, and navigating”, which is a legal distinction that relates back to colonial times. Your ability to “fish, fowl, and navigate” would be limited further in that it could only be done in the intertidal zone (that area of wet sand between the low tide mark and the high tide mark).
What Happens if I Don’t Join?
If you don’t enforce your own rights as a property owner who has used Goose Rocks Beach over the years, you will be defaulted by the Plaintiffs. This means that your use of the Beach, as you know it, will be eliminated, and you will only get those rights that the Town of Kennebunkport, if it chooses to vigorously pursue the litigation, obtains for the public at large. As a property owner who has used the Beach over the years, it is likely that your right to use the Beach, and the activities that you may be permitted on the Beach, far exceed those that the Town could obtain for the public at large. The Town could very well agree to restrict the hours of use and the types of activities on the Beach which are inconsistent with your traditional use.
Why Shouldn’t I Let the Town of Kennebunkport Enforce my Rights?
Your rights as an individual who has used the beach for a number of years are very different from any public rights to use the Beach. In addition, the most recent correspondence from the Town Manager indicates a willingness to resolve this matter quickly. In that regard, it is possible (indeed, likely) that the public rights that are achieved through settlement will be far inferior to the rights you could achieve through joining in the litigation to assert your private, personal right to utilize Goose Rocks Beach.
The Town’s ability to litigate this matter fully is also subject to a Town budget vote. The Town is seeking a budget of $250,000 to litigate this matter on behalf of the public right, and if that money is not voted in, the Town’s ability to litigate fully to protect even the public right to access the Beach will be hindered.
What is the Timeline?
The Court has set a deadline for parties to join, or intervene, and that deadline is June 5. It is possible that that deadline may be extended, but there are no guarantees. In order to preserve the rights of those who wish to continue to use Goose Rocks Beach as they have for a number of years, we would file a motion to intervene and other appropriate filings to ensure that you are a member of the litigation and are asserting your rights to use Goose Rocks Beach as you have for years.
What Do I Need to Do to Join in The Litigation?
In order to join the litigation, you should return the questionnaire to me that Save Our Beaches sent to you. We will analyze these questionnaires to see if you have a colorable claim to be included in the litigation. If your use does not fit the requirements of the law, in our opinion, we will inform you of that. You could choose to enter the litigation on your own. If your use fits in the criteria, you would be able to join the litigation.
What are the Criteria for Joining?
To enforce a right to use the beach under the theory of a “prescriptive easement”, you would need to show use of the beach that is adverse (as opposed to permissive) for a period of at least 20 years. The 20 year period does not need to include use that is constant and daily, nor do you have to have been an owner of property during that entire stretch (for instance, if you visited the beach, and then bought property). In addition, the 20 years does not have to be under one owner. If you have used the Beach for 15 years and you believe the prior owner similarly used the Beach for 5 years, that is acceptable.
Why Taylor, McCormack & Frame?
The prior counsel, Durward Parkinson, for this matter was unable to continue representation due to a conflict. He recommended our firm, as he has seen our work and worked with us on similar matters. We have experience in handling large litigations with a large number of litigants, which is what this case will involve. You should feel free to go to our website if you have any questions about me or my firm. It is http://www.TMFAttorneys.com.
What Will This Cost?
The prevailing wisdom of Save Our Beaches and others is that there is an economy of scale to individuals uniting under one counsel. This is a good tact in light of the potential costs of this litigation. People are certainly free to choose their own counsel, but that will involve far greater costs than having a common counsel. The initial cost to retain Taylor, McCormack and Frame will be $520 per litigant. This retainer would be billed against, and at some point there would be a need for additional funds. The timing and amount of the additional funds would be dependent upon the size of the client group.
What Next?
To be considered as part of the client group in asserting the right to use Goose Rocks Beach as you (or your predecessors) have for years, the following things need to happen:
1) you should return to me the completed Questionnaire you received from Save Our Beaches immediately. (If you have already returned a questionnaire to Durward Parkinson or Save Our Beaches, please let me know and we will gather those. My email is GFrame@TMFAttorneys.com).
2) We will review that Questionnaire immediately.
3) If you are eligible to join the group, we will communicate with you immediately with information regarding representation.
4) Once you have signed the letter of representation, you will be a member of the litigation group, and Taylor, McCormack and Frame will work with you (and others who have already signed up as clients) to further your interest in continuing your access to Goose Rocks Beach.
To be clear, your receipt of this letter and your response to it does not engage our firm as counsel. You will be a member of this litigation group only after we have an agreed upon letter of representation between our firm and you.
I hope to hear from you soon.
Sincerely,
Gregg R. Frame
GRF:ss
My wife, her parents and grandparents have used Gooserocks beach since the 1890’s. We acquired property in Cape Porpoise partly to continue that tradition and it would constitute a breach of faith by the town to allow a few litigants to deny us that right.
Maine is a bastion of liberalism and after 120 years (three generations) of summer vacations, I’m moving to Colorado.
I can’t say I blame you, Anonymous. When you get to be 120, Maine must seem a bit peculiar. Colorado will certainly have fewer issues with ocean access.