The Beach: You Can't Get There From Here
by Steve Cartwright

   The case of a once-popular beach in St. George now blocked by an electronic gate is a sign of what’s happening up and down the coast.
   Martinsville Beach, an unspoiled arc of sand on Penobscot Bay and long a favorite destination for local people, was gated off a couple of years ago by nearby residents David and Amy Morey. They wanted to preserve their view and sell a couple of beach-front lots without the nuisance and financial depreciation of public access to the beach. The move angered townspeople who had freely used the beach for generations, and a group called “Friends of Martinsville Beach” has filed suit in Knox County Superior Court arguing a right of traditional public access. The case is pending.
   As coastal real estate values rocket upwards, well-heeled landowners are protecting their privacy and their investment by keeping the public out. There are exceptions. Some waterfront property owners allow traditional access to clammers and worm diggers, and sometimes for recreational uses such as walking the shore, swimming and kayaking.
   But local observers, from land trusts to real estate brokers, say the unmistakable trend is toward “No Trespassing.” A lot of it has to do with money, and some of it may boil down to selfishness. Properties that 25 years ago sold for $30,000 are now selling for $500,000. If you pay a lot of money for something, you may be reluctant to share it for free. Deepwater coastal lots, even with modest houses, can fetch $1 million or, with a lot of frontage, several million dollars. This is “affordable housing” for the very rich only, and in many of cases, these are second or third houses for these owners. These properties are sometimes disparaged by less affluent neighbors as “trophy homes.”
   Eliza Bailey of Thomaston knows both sides of the debate. She spent a decade with the Georges River Land Trust, directing the organization for several years, and she has also worked in real estate. For 25 years, she lived in St.George and took her family to Martinsville Beach. Bailey was sorry to see the gate erected, but also believes in private property rights. She had hoped the land trust and the Moreys could craft a compromise for limited use of the beach.

Aerial view of Martinsville Beach with Mosquito Head above it in the photograph. Located in St. Georges, Knox County, the beach has been open to public access for many generations. Recent owners have denied that precedent and local people have challenged a gate built across the access road.

   Bailey blames the increasing lack of public access across private coastal land on the pressure and stress of more people, more traffic on the highways, and the desire to have one’s home be a safe refuge from those things. She said she understands that when too many people cross private property, the owner feels invaded and wants to preserve privacy.
   Not every shorefront property owner blocks access. In Edgecomb, Jonathan Wood bought a 200-year-old house despite warnings that worm diggers walked right beside it to get to their boats. Because of that use, and because the house needed work, the property’s market value was considerably lower. Rather than kick the diggers off his property, Wood called a meeting and agreed to create a permanent, deeded right of way on the edge of his land, a little further away from his house than the old path. He also built a six-car parking lot, so vehicles wouldn’t be parked on his lawn, and diggers agreed to pay him a modest fee for parking, six days per week.
   Wood, who designs and builds equipment for underwater research and aquaculture, said, “The guys who make a living off the water really should have first crack at it. The other guys (people who buy waterfront second homes) do it for play.” Some of Wood’s neighbors were irked by his deal with the worm diggers, but Wood is not apologetic. “These guys were digging worms before any summer houses were built.”
   He said he has had few problems with the right of way; “If you make a deal that works for everybody, they police it. The only down side is I don’t have complete and utter privacy. But these are good guys, I know them. They work hard for a living. These guys are working men like me.”
   In the Martinsville case, Superior Court Judge Donald Marden heard arguments last fall on a motion by the defendants – the Moreys and lawyer Jack Hupper of Martinsville and New York City – to find the Friends of Martinsville Beach lawsuit has no merit. Even if Marden rules against them, the Friends could appeal his decision.
   The Friends’ suit alleges that two years ago, the Moreys and Hupper erected an electronic gate that illegally cuts off access to a crescent-shaped beach that local people have used for generations. The gate can only be opened by using a code. The basis of the suit is that a public right to use the beach was established over many years, even though it is private property.
   At the court session, lawyers for the Moreys and Hupper argued that the public only used the beach by permission of the landowner, and further, that the Friends group does not have legal standing to sue the defendants. That status is reserved for the St.George board of selectmen, said lawyers Wayne Crandall of Rockland and Mary Platt Cooper of Camden.
   Crandall cited an often-referenced 1600s Colonial ordinance establishing private ownership of beaches and limited, permitted uses such as fishing. He said the public’s traditional use of Martinsville beach was recreational, and such a use could only be legally permitted by the owner.
   Cooper cited a case some years ago in the town of Manchester, where the town sued the Augusta Country Club when the club cut off access to a swimming beach on Cobbossee Lake. The town lost. Cooper argued that allowing the Friends group to sue would set a precedent, and would be an injustice.
   Judy Metcalf of Brunswick, lawyer for the Friends, said she has 26 sworn affidavits from local people who used the beach but never asked permission to do so. They assumed they had a right to use it, she said, claiming that there is no history of use of the beach by permission. One affidavit, from Tenants Harbor innkeeper Tim Watts, states that Watts once ran into the late Dorothy Hupper (mother of John Hupper) on the beach, and she told him she hoped it would always be open for the enjoyment of local people.
   In arguing for the Friends’ legal standing, Metcalf cited the case of Fitz Gerald versus Baxter State Park Authority, in which citizens sued to stop timber harvesting that violated Percival Baxter’s charter and existing park policy. The cutting was halted.
   Metcalf has filed a companion suit against the Moreys and Hupper on behalf of the Roger Hannemann family, owners of Mosquito Head, a rocky point beyond Martinsville Beach. The Hannemanns oppose the gate and favor public access to the beach, she said. Mosquito Head is only accessible by land via the gated road. Because the Hannemanns have allowed school buses through the gate, the defendants now claim the Hannemanns are misusing their deeded right-of-way over that road.
   Martinsville Beach has, over the years, been a destination for school field trips, summer camp swims, picnics, sunbathing, baptisms and weddings, according to the Friends group. The gate on the narrow dirt driveway was apparently installed after the Moreys agreed to buy property adjacent to their house from Hupper. To raise money for that deal, the Moreys decided to sell a couple of beach-front lots, advertised at $750,000 and $850,000. The market value of those lots, observers said, would be decreased by public access to the beach.
   Meanwhile, Eliza Bailey said that to preserve access to the coast for fishermen and others, “the state needs to take a look at what really is a precious resource.”
   Last year, the Legislature failed to renew funding for the Land for Maine’s Future (LMF) fund, through a public referendum, and environmentalists are urging state government to do so this session. Over the past two decades, the statewide LMF program has protected thousands of acres and a considerable amount of saltwater frontage. The program has spent tens of millions of dollars to acquire conservation easements or full title to the land, often in partnership with local organizations. Several years ago, a $50 million bond for LMF won strong approval from voters.