Portsmouth Herald, Oct. 17
Wells declines to join Free Moody Beach public access fight: Here's why
Shawn P. Sullivan, Portsmouth Herald (Link to original story HERE)
WELLS, Maine — The town is not prepared at this time to join Free Moody Beachand other public-use advocates in their fight to gain more access to local intertidal lands that are privately owned, Town Manager Michael Pardue wrote in a letter to activist Jeannie Connerney.
Michael Pardue, Town Manager, Wells, Maine
On behalf of Free Moody Beach, Connerney sent a letter to Wells Select Board Chair John MacLeod III in September, asking the town to join and support its efforts, which currently coincide with a case, Masucci v. Judy’s Moody, which is currently making its way through Maine Superior Court. Specifically, the group urged Wells to follow the same approach as Kennebunkportwhen it successfully argued, in a case decided in Maine Superior Court in 2019, the town owned Goose Rocks Beach. In the letter, the group argued that the Kennebunkport case showed that 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. Pardue acknowledged Free Moody Beach’s hopes that Wells would play an active role in the public-access issues related to the case, but explained in his Oct. 6 letter why the town is unable during the current circumstances.
“Given that the issues presented have the potential to impact the rights of town residents in different, potentially conflicting ways, the town is not prepared to take the steps requested at this time,” Pardue wrote.
Pardue added Wells is monitoring the Masucci case and would be “open to responding accordingly,” if circumstances arise warranting a response from the town. On Oct. 16, Connerney said she was grateful the town responded to her letter.
“Obviously, we are not 100% with it, but we’re not surprised,” she said.
Connerney elaborated those sentiments in an email, in which she shared statements she planned to make at the Wells Select Board’s meeting on Oct. 17.
“It’s clear that the town’s response was quite carefully lawyered, which may explain why it took six weeks,” Connerney wrote. “We’d like the (Select Board) to know that we understand such a response. In fact, we expected it.”
Connerney said Free Moody Beach will approach the town in the coming months and will ask the Select Board to deliberate on specific proposals.
“They will all be reasonable and well within Maine law and the town’s municipal codes,” she said.
Free Moody Beach to keep pushing for Wells to take action Connerney said Free Moody Beach, comprising about 170 local members, will be engaging with voters in Wells. She added that the group will support other efforts to expand beach access in the state and warned that more developments on the subject will be forthcoming.
“Moody Beach will figure prominently in statewide discussions,” Connerney said. “Wells will be in the spotlight.”
In his letter, Pardue was able to address three issues, related to taxes, rights-of-way and liability, that Connerney raised in her Sept. 5 letter that did not have ties to the Masucci case. In response to Connerney asking if Wells assesses taxes differently for properties near Moody Beach and Wells Beach, Pardue said the town does not.
“All residential property in the town of Wells is assessed according to its market value,” Pardue wrote.
In her letter, Connerney also referenced rights-of-way Free Moody Beach maintains once existed at Moody Beach. Pardue asked Connerney for more information so that the town could do some research and determine their status. Lastly, Pardue addressed concerns that Connerney raised in her letter about homeowners’ liability if the public was to be allowed to recreate on the sand abutting their homes.
“Although the town is not expressing any opinion on either ownership or liability issues, Maine statute affords property owners who allow permissive recreational use on their property certain statutory protections,” Pardue said.
In the Masucci case, another group, called 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 that 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.
The motion pursued by Our Maine Beaches has roots in a case settled more than 30 years ago. 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 privately owned intertidal areas are those that were outlined in a colonial ordinance from the 1600s: 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.