A judge heard arguments last month on whether to block a suit against the gating of Martinsville Beach in St. George.
Officials at the Rockland courthouse said Superior Court Judge Donald Marden could take weeks or months to decide on what’s called a motion for summary judgment, brought by defendants in the case. If he rules in favor of the motion, the Friends of Martinsville Beach (also known as Friends of St. George) would have lost a round in their fight to re-open public access to the popular sandy beach. If he rejects the motion on behalf of property owners David and Amy Morey and John Hupper, a lawsuit filed more than a year ago by the Friends could proceed. If Marden rules against them, the Friends could appeal his decision.
The case is being watched up and down the coast, where an increasing amount of waterfront traditionally open to the public has been purchased by landowners who have paid hundreds of thousands of dollars for their frontage and don’t want to share it.
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 this week’s 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 to the St. George board of selectmen, said Wayne Crandall of Rockland and Mary Platt Cooper of Camden, lawyers for Hupper and the Moreys, respectively.
Crandall cited the 1600s Colonial Ordinance, which established private ownership of beaches and the limited permitted uses of “fishing, fowling and navigation.” He said the public’s traditional use of Martinsville beach was recreational, and that could only be by owner permission.
Cooper cited a case some years ago from Manchester, Maine, where that town sued the Augusta Country Club when the club cut off access to a path across its golf course to a swimming beach on Cobbosseecontee Lake. The town lost in that case. She said 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 FitzGerald v. Baxter State Park Authority, in which citizens sued to stop wood cutting because it violated the park’s charter and existing policy. The cutting was halted.
A separate suit, also being handled by Metcalf, has been filed against the Moreys and Hupper on behalf of the Roger Hannemann family, which owns Mosquito Head, opposes the gate and favors public access. Mosquito Head is accessible by the gated road. Because the Hannemanns have allowed public school buses through the gate, the defendants claim the Hannemanns are misusing their right-of-way over that road.
Twenty-two members of the Friends of Martinsville Beach, or their supporters, sat in the courtroom for the hearing on the motion. Neither the Moreys nor Hupper, a New York lawyer, were on hand for the proceeding. Coincidentally, one board member of the Friends group is herself a former lawyer from New York.
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 installed, sources said, after the Moreys agreed to buy property adjacent to their house from Hupper, and to help pay for it decided to sell a couple of beachfront lots. The value of those lots — advertised at $750,000 and $850,000 — could be decreased by public access to the beach.