Town asked to help

Free Moody Beach group urges Wells to join battle over access: 'Frustration is rising'

Shawn P. Sullivan, York County Coast Star

WELLS, Maine — Members of a local group are asking the town to partner with them in ongoing efforts to increase public access to Moody Beach, particularly in the areas where seaside property owners restrict the uses by others of the intertidal zones.

In an open letter to Select Board Chair John McLeod III on Sept. 5, the steering committee for Free Moody Beach urged Wells to follow the same approach as Kennebunkport when it successfully argued, in a case decided in Maine Superior Court in 2019, that the town owned Goose Rocks Beach.

Free Moody Beach represents more than 170 people in the Moody community, according to Jeannie Connerney, a member of the steering committee. Members include year-round residents, seasonal homeowners, renters, visitors, and supporters.

In the letter, the group argued the Kennebunkport case showed legal pathways exist for Wells, despite a 1989 court ruling — in the case of Bell v. Town of Wells — stating certain intertidal zones on Moody Beach were privately owned.

“Were Wells to undertake similar actions, it’s likely the right to recreate on Moody Beach would be returned to the public,” the committee wrote in the letter. “Let’s work together to institute solutions for the benefit of all users of Moody Beach.”

Currently, another group, Our Maine Beaches, is hoping a Maine Superior Court judge will rule in its favor in response to a motion its attorney, Benjamin Ford, filed in May. In the motion, the group is seeking a summary judgment declaring many uses of the state’s beaches and intertidal lands are legal and allowed under current law.

The motion singles out three Moody Beach property owners as defendants: Judy’s Moody, LLC, OA2012 Trust, and Ocean 503, LLC.

The judge has not yet ruled on the issue.

Previous story:Lawyer pushes back in Moody Beach public access dispute

Free Moody Beach group calls on Wells Select Board to take action

In its letter, the Free Moody Beach committee lists a number of steps it hopes the town will take to help the cause.

Wells Town Manager Michael Pardue responded to the letter in an email on Sept. 11. Pardue said before answering the town would need to confer with legal counsel, given that some of the issues and questions mentioned in the group’s letter are currently part of the pending litigation.

On Sept. 20, Pardue told the Coast Star the Select Board and town attorney were working to schedule a time to meet and review the letter and reply “most appropriately.”

“I anticipate that meeting will occur within the next week or so,” Pardue said.

In its letter, the committee urged the town to promote discussion among all stakeholders of Moody Beach and seek to reach a community-wide agreement about public recreation at the beach. The committee also recommended the town consider suing any beachfront property owners who would refrain from being a part of any such agreement.

The group also recommended the town assert that “it is very unlikely that the town of Wells ever conveyed Moody Beach to any private property owner.” The letter referred to books, studies and videos that they maintained would make that argument clear.

The letter also called on Wells officials to explain why Moody Beach is not included on the local tax maps and why the town “upholds ownership of and trespassing laws on land for which no taxes are paid.”

It also urged the town to “explain if there is a difference on how taxes are assessed on property abutting Moody Beach and on property abutting Wells Beach, which is public.”

In the letter, Free Moody Beach also addressed concerns about liability.

“Some beachfront homeowners on Moody Beach have expressed concern that if they allow the public to recreate on the sand abutting their homes, liability issues may arise,” the steering committee wrote. “We ask Wells to erect signage stating that the users of Moody Beach assume all risk, thereby shielding the homeowners from any responsibility.”

The letter also recommended that the town establish a policy that clearly defines “fishing, fowling, and navigation,” the three public activities allowed by law within the privately owned intertidal zones. Such a policy, the committee wrote, would allow members of the public to know “what we are allowed to do.”

“Explain how Wells will respond if the police are called to remove someone holding a plastic fishing line, a net, binoculars, or a compass, or for walking along Moody Beach,” the letter said.

Moody Beach dispute goes back decades

In August, public beach advocates marched and rallied on Moody Beach. According to the committee, the demonstration highlighted the tensions that have risen in the years since Wells lost the 1989 case in Maine’s courts.

“Now more and more ‘Private Beach’ signs are erected every summer, more ‘seaweed fences’ are created every morning, and more people are either intimidated by the confusing signage or confronted and told to move,” the committee stated in its letter.

The committee said people are confused as to why the town of Wells has not taken any further action in the past 34 years to help the majority of those who use Moody Beach. The committee asked the town to support the court efforts taken by Ford and Our Maine Beaches in May.

“Frustration is rising,” the committee said.

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 was part of Maine's common law. That ordinance had acknowledged private ownership of beachfront property as including the intertidal zone, extending all the way 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 were those that were outlined in the colonial ordinance: fishing, fowling and navigating.

That means beachfront property owners along Maine's coasts have property rights all the way down to the low-tide area, except for an easement to allow the public to engage in those three permitted activities.