Lawyer pushes back in Moody Beach public access dispute: 'No real controversy here'

WELLS, Maine — The attorney for an oceanfront property owner says those who are pressing for public access to his client’s private intertidal zone are just trying to create controversy as part of their efforts to overturn a court decision made more than 30 years ago.

“They’ve got to create a fight,” said attorney David Silk, of the firm Curtis Thaxter in Portland. “There’s no real controversy here.”

Recently, members of the group Our Maine Beaches marched and rallied at Moody Beach amid their hopes that the Maine Superior Court rules that many uses of the state’s beaches and intertidal lands are legal and allowed under current law. On behalf of the group, attorney Benjamin Ford filed a motion seeking that summary judgment in May.

Ford said the group is bolstered by his recent research that showed that OA2012 and two other beachfront property owners, Judy’s Moody, LLC, and Ocean 503, LLC, are not directly billed for taxes on the intertidal zones they own in Wells.

“So long as they say they own the land, they should pay taxes on it,” Ford said. “You shouldn’t be able to call the police to escort grandparents and children off your beach unless you’re paying taxes on it.”

Speaking only for OA2012, Silk said his client has never had an issue with people “walking up and down” the property he owns along the high- and low-water marks in the back of his home. Silk said he has not been given one instance in which his client has “booted” someone from the public off his intertidal zone, which borders Ogunquit Beach.

Silk said complaints instead are focused on the sign his client has posted that prohibits loitering in the zone and bringing dogs there.

“Their whole claim is that the signs create apprehension,” Silk said.

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According to Silk, his client occasionally has had to ask people to leave the upland portion of his property that is dry sand – that is, sand beyond the intertidal zone that never gets wet, save for a unique circumstance, such as a hurricane. Silk said such sand is essentially his client’s “backyard.”

Silk also pushed back on the group taking issue with his client and other property owners not being taxed directly on the intertidal zones they own.

“I think it’s baloney,” he said.

Intertidal zones are not assessed by their square footage because a precise low-water mark can never be known, he said.

“You can’t close the line,” Silk said. “You can’t put pins in a low-water mark.”

Instead, Silk said, the ownership of the intertidal zone is figured in as an asset when the market value of a property is assessed – just like, say, when someone renovates their kitchen, thus increasing the worth of their home, he added as an example.

Town Manager Michael Pardue said the town of Wells assesses beachfront properties according to their “concentrated value” from the street to the seawall.

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Public-private debate on private beaches have long history in Maine

The public-private debate centering on intertidal zones has a long history in Maine, with Ford’s motion in May simply being the latest development. The court has not yet ruled on the matter.

In April 2021, Ford filed a lawsuit seeking to return private beaches along the Maine coast to the public. The plaintiffs included both commercial and recreational beachgoers, and the suit took aim at eight defendants, including the three from Wells.

In the summer of 2021, attorneys for the owners of private beaches filed motions to dismiss the case altogether.

In April 2022, Superior Court Justice John O’Neil granted the motion to dismiss the case, as it pertained to intertidal land owners in Harpswell and Friendship who were caught in a dispute with individuals who were harvesting rockweed on their property for commercial purposes.

However, O’Neil also gave Ford and his clients a bit of hope to hold on to. When it came to the three Wells defendants, the judge only granted their motions to dismiss in part – asserting that they did indeed own their intertidal land but leaving vague the question of what constitutes acceptable public use.

Our Maine Beaches saw the opening and filed that motion for a summary judgment in May.

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In an interview, Ford said his clients want to correct what they believe is a judicial error that the court made regarding land at Moody Beach in the 1980s. Indeed, this is the case to which Silk referred when making his claim that Ford and others are trying to create controversy in their efforts to overturn a court decision.

In 1984, homeowners along Moody Beach in Wells accused local and state authorities of failing to treat beachgoers on their private beaches as trespassers. The homeowners asked the court to prohibit the public from using the beach in front of their properties, not only on the dry sand but also the intertidal zone, according to a report on public shoreline access produced by the Maine Sea Grant College Program, the Maine Coastal Program, and the Wells National Estuarine Research Reserve.

Two years later, the Maine Supreme Judicial Court ruled that the colonial ordinance enacted in the 1640s is part of Maine's common law. That ordinance had acknowledged private ownership of beachfront property as including the intertidal zone, extending to the low-tide mark. It also recognized the public's right to fish, fowl and navigate on privately owned tidelands, according to the report.

In 1989, in Bell v. Town of Wells, known as the Moody Beach case, the state's top court ruled that the only public rights recognized in intertidal areas are those that were outlined in the colonial ordinance: fishing, fowling and navigating. That means beachfront property owners along Maine's coasts have property rights down to the low-tide area, except for an easement to allow the public to engage in those three permitted activities.

Silk said his client is frustrated to be involved in re-litigating a case that was settled back in the late 1980s.

“It seems to me they’re trying to pick a fight where there’s no fight to be had,” Silk said of the plaintiffs in the current case.

This article originally appeared on Portsmouth Herald: Moody Beach homeowner’s lawyer pushes back on public access fight