Southern Maine Opening and Welcome

Southern Maine Workshop, September 23
Opening and Welcome

Paul Dest, director of the Wells National Estuarine Research Reserve and moderator of today's workshop, welcomes us to the workshop, mentioning that this is one of three workshops planned for the next few weeks. Paul points out that the Reserve is not only a center for environmental education and research, but also a coastal public access site. As such, the Reserve preserves public access to a coastline that is quickly being privatized, in a way that both protects private property rights and meets the need of some coastal users (access is limited to those willing to walk the paths to the coast). Paul explains that the purpose of these workshops is to educate the public as to the rights and restrictions associated with public access and provide tools to stakeholders to address public access issue without litigation.

Before handing the floor over to Joey Donnelly for the official welcome, Paul thanks the workshop sponsors and supporters: National Sea Grant Law Center, located at the University of Mississippi School of Law; Maine Sea Grant; Island Institute; Maine Coastal Program and the Center for Law and Innovation at the University of Maine School of Law.

Next, Paul introduces Joey Donnelly, Vice Chair of the York Harbor Board. Joey welcomes everyone. He says that we are all here because we are concerned about public access to Maine's coast. Thanks to many groups working to preserve public access and its long history of protecting access to private beaches, natural resources, and working waterfront, Maine is "ahead of the pack." However, Joey reminds us that with public access to private land there comes a great deal of responsibility, specifically, the need to act as stewards of the land. Therefore, it is important for those of us interested in maintaining public access to be educating the public as to the rights and restrictions of access, emphasizing the need to be stewards.

In the room are community members, property owners, recreationists, land use planners, administrators, and lawyers. What each of these people have in common is ties to the Maine coast. People are excited, so let us begin with a question from the audience:

Q: In light of the fact that many of those using the public access site are not residents of Maine-either part-time or full time-and do not have a connection to the community how do you educate them as to the appropriate behavior on private land?

A: Signs are very important. Unfortunately, enforcement is expensive, so self-enforcement, through signage, is very important. Also we need to establish a culture of respect and stewardship regarding public access to private land.

Next: Progress made

Progress Made

Progress Made: Presentation of Model Regional Projects from the New Working Waterfront Access Pilot Program and Current Use Taxation Program

We begin with the Working Waterfront Access Pilot Project. Jim Connors, senior planner for the Maine Coastal Program and an active supporter of working waterfront access in Maine, is joined by Eileen Sewall, wife of fisherman Mark Sewall and advocate for preservation Maine's working waterfront.

Jim begins by explaining what the Working Waterfront Pilot Program is and how it works. The program provides funds to help purchase, preserve and protect key properties on the coast that provide access to and support commercial fishing activities. More specifically, when a project is funded the Department of Marine Resources, which administers the program along with the Land for Maine's Future Program, holds a deed that prohibits any conflicting non-fishery land use. Jim notes that Maine has lost 20% of its working waterfront in the past ten years, making this public access to the coast an important factor in the continued vitality of Maine's fishing industry.

Eileen Sewall provides some background on public access in York explaining that traditionally public access for commercial fishermen was secured through informal agreements with private landowners. Over time these agreements expired (public access points were sold, fishermen passed away, and landowners developed the property) threatening the livelihood of fishermen who need docks to land their catch and tie up their boats, and shorefront space to store their equipment. However, Eileen says programs like the Working Waterfront Access Pilot Project are slowly helping fishermen regain public access to the York waterfront.

Examples of the Working Waterfront Access Pilot Projects Successes:

Sewall Bridge Dock: This project began with the purchase of a pier by two fishermen (paid $300,000 of the $710,000 asking price), including Eileen's husband, and sold a conservation easement to the York Land Trust (paid $410,000 for the easement, which went to cover the rest of the purchase cost). While the fishermen retain ownership of the property, the easement protects the property from development.

Hancock Wharf: The dock itself was initially in disrepair, however, through the sale of an easement to the state the fishermen were able to purchase the land, repair the dock, and the wharf will remain a working waterfront in perpetuity. Eileen thanks the Working Waterfront Coalition for recognizing that even though this dock can only support three fishing boats, the project is still important.

Jim mentions that there is a bill sponsored by Tom Allen to create a federal program based on Maine's Working Waterfront Coalition. He notes that although it is unlikely that it will get through this session it is an example of how Maine is a leader in working waterfront issues.

Next, Jim introduces Bill Healey, the tax assessor for the towns of Cumberland and Yarmouth Maine, to talk about the Current Use Taxation Program. Bill says that the most difficult task of a tax assessor working with the Working Waterfront Access Project is valuing the property for tax purposes. He explains that the law gives us a few choices for valuing property each of which imposes a significant tax burden on the fishermen. Under one scenario, Bill's valuation of the land did not provide the family with enough tax savings to support use of the Program. His idea to segregate the property into non-waterfront as well as waterfront land helped lower the assessed value and thus improved the tax benefit to the landowner under the Working Waterfront program.

Although this decision has yet to be challenged, Bill believes that it comports with the spirit and the letter of the Current Use Taxation Program. Bill points to the intent of the law: to the provide a break to families using their property as working waterfront, explaining that this approach fulfilled the purpose of the statute and allowed one Maine family to continue to earn their livelihood by lobstering.

Q: What is the water amenity classification?

A: The waterfront amenity classification provides all the benefits of waterfront without actually owning the land in front of you.

Q: Have anyone other property owners on Chebeague applied to the program?

A: No, but not because they do not qualify. Usually people do not apply because they do not want to get the government involved in how they use their private property.

Next: New information and tools

New Information and Tools

New Information and Tools: Legal Framework for Coastal Access Tools in Maine

Here to introduce Maine Sea Grant's Accessing the Maine Coast Web site is Kristen Grant, extension associate of Maine Sea Grant and organizer of the workshops.
Kristen starts by reminding us that the goal of these workshops and the website is to provide stakeholders with legal tools to address public access issues cooperatively, without having to resort to litigation. Much of the information on the website comes from research done by Rita Heimes, Director of the Center for Law and Innovation at the University of Maine School of Law, and David Kallin, a third-year student at Maine Law. Kristen turns the floor over to Rita to talk about the Center's findings.

Rita begins by acknowledging that many people in the room may know as much if not more about the subject than she does because as landowners and fellow lawyers they may face these issues every day.

Many of the legal tools available for addressing public access issues are not necessarily new and innovative. In fact, most of them are common law doctrines that have been around for a long time: property rights, the public trust doctrine, contracts, easements, etc. With each of these tools comes different access rights and restrictions, so it is important to think about which option best meets your access needs. Another thing to consider when deciding what tools are appropriate is how you want to access the coast: perpendicular access or along the beach.

Keeping that in mind, there are a few ways to buy access, including buying the land, buying certain rights in the land, or purchasing the land and then selling a conservation easement to an organization interested in preserving the land.

If purchasing access is not an option, go talk to the landowner. You may be able to secure limited access through a private contract. For a landowner concerned with liability it is important to note that Maine encourages public access by providing for limited liability for landowners that allow for recreational use of their coastal land. In addition to private agreements Rita explains that town and state governments may be able to regulate to preserve access (i.e. zoning) or create incentives to provide public access (i.e. tax breaks).

Also, a right of access may already exist. For example, long-term, continuous and adverse use can create what is called a prescriptive easement.

Q: What do you do if the police will not keep trespassers off your private property?

A: This is difficult because the police should be protecting your rights. If they are not you can go to the municipality and lodge a complaint or you can sue the trespassers. Also if you have an access contract with someone and that person violates a provision of the contract you can terminate the contract.

Q: If my deed says that I own up to the high tide line, is it my responsibility to post signs indicating that it is private property and will/can I incur liability by posting the property?

A: The police should protect your private property rights, whether or not you posted the land. However, signs are an important part of educating the public about public access. [ed. note: since the person asking this question owns only to "the high tide line," then s/he does not own the intertidal zone, and therefore may not have the right to prevent people from using that area.]

Q:If you own land adjacent to a forest, could someone go across your land to access the forest?

A: It is unlikely that someone could cross private land to access a public forest. However, under Maine common law you can walk across private property to access an interior body of water (Great Pond) provided you don't use "improved" land (the common law standard is "cornfields or meadows"). This same access right does not apply to coastal land.

Q: Wasn't the issue in Bell v. The Town of Wells that the Police were not enforcing private property rights?

A: The issue in Bell was who had rights to use the beach. The Maine Law Court held that the beach was privately owned and that the public trust doctrine allowed public use of the intertidal zone only for "fishing, fowling and navigation" which does not include recreational use.

Q: How does a private landowner get the public to behave respectfully, while they are using their private property? Many landowners want to preserve public access, but do not want to deal with the disrespect of public users.

A: The tools we discussed earlier are designed to address issues like this. For example, municipal regulation may allow for limited access to property and may even provide for enforcement of restrictions.

Q: Isn't a town's failure to enforce trespassing laws and regulations restricting public access essentially a taking of private property?

A: That is a novel legal theory and one that someone might want to explore further.

Q: What do you do if your property is adjacent to a public walkway and people automatically assume that your beach is also public?

A: Again signs and education. The public may not realize they are on private property so consider a sign explaining that just because there is a public walkway here does not mean that the adjacent beach is public. Also this brings us back to the issue of stewardship and the idea that with the right of public access comes a heightened responsibility.

Paul thanks people for sharing their stories and Rita for coming to speak.

Coastal Access Tools on the Web

Kristen Grant is finishing up the first half of the workshop by talking us through Maine Sea Grant's Coastal Access website. She reiterates that the purpose of the website is to give stakeholders (landowners, waterfront users, government entities, etc.) tools to address access issues without having to resort to litigation. All the tools that Rita just discussed are on the website, organized so that individuals can educate themselves as to their rights and obligations as landowners or waterfront users or government entities.

Encouraging people to explore the website on their own, Kristen takes some time to explain the best ways to navigate the site.

With the legal research findings in hand, the project team began to think about how to share these tools by first identifying who would be the main users of this type of information. Key stakeholders were identified as waterfront property owners, waterfront users (both commercial and recreational) and public interest entities (federal, state and local governments, land trusts, etc). With these users in mind, we tried to consider how these users might search for information. It was decided that most users likely would come to the site trying to solve a problem. So, the team’s job became how to present the tools from a problem-solving perspective. To do this, the info was organized in flow chart format – leading users through a range or web of options based on how specific questions are answered.

Kristen explains that the site we’re seeing tonight is a "beta" version, and that the site will continue to evolve. The design is likely to change before the site is officially released. Kristen welcomes all workshop participants to provide your input on the site at http://www.seagrant.umaine.edu/accesslaw/index.htm .

A review workshop is available to guide your comments. (attach). Please forward comments to kngrant@maiine.edu.

Kristen describes the basis for the way the site functions. We want to make it possible for users to explore and discover existing, but also new and innovative tools – tools you might not be aware of. This meant that the traditional navigational approach of keyword-search needed to be expanded, since you might not know the words to search. This led to the need for new search approaches beyond keyword that allow you to explore and discover new tools. So we have provided options to broadly explore new ideas in a problem solving approach. These include "Who are you," "Tools," and "FAQ."

"Legal Principles and Statutes" This search option still allows for problem solving, but info is presented in an educational format in which one concept builds on another, rather than allowing for drilling down. Alternatively, if you think you know the answer to your question, but need more specifics, then use a more focused search via "Keyword" or "Site map."

With this concept of how info can be sorted, Kristen takes us through various approaches to introduce us to the site’s content. But there was not a specific discussion of content itself.

Next: Where do we go from here?

Where Do We Go From Here?

Where Do We Go From Here?: Presentation of the Results from the Working Waterfront Coalition Member Survey and WWC Strategic Planning Initiatives and Discussion to Further Clarify Needs and Identify Gaps

Paul is introducing Hugh Cowperthwaite, of Coastal Enterprises, Inc, who is going to present the results from the Working Waterfront Coalition member survey and speak about the Coalition's plan for the future. Click here for presentation slides.

Hugh starts by going over the survey and talking a little bit about the Working Waterfront Coalition. He says that the Coalition is a five-year-old, grassroots initiative, whose participants include industry associations, nonprofit organizations, state agencies and concerned citizens. The Coalition was established to "enhance Maine's working waterfront through policy, planning and research, investment and education." Hugh explains that when the Coalition started the two central issues were the tax program for fishermen and the Working Waterfront Access Pilot Program. In 2005 the Coalition was successful and both initiatives passed. Thus, the survey was designed to help the Coalition determine whether or not there is still a role for them to play in preservation of the working waterfront. Of the 40 people who took the survey, 37 agreed that there was still work to be done to protect Maine's working waterfront and that the Coalition was still very important.

Q: Is it counter-productive to be preserving working waterfront when the fishery is declining? Is the Coalition doing anything to encourage sustainable management of Maine's fishery?

A. The Coalition feels that it is important to preserve this land as working waterfront. The lobster fishery is the primary fishery in Maine and is an intregal part of the Maine culture. Loss of the lobster industry will have an adverse impact not only on the fishing industry but also on tourism. Thus, it will negatively affect two of Maine's most important industries. In addition, development is a short-term economic benefit, while fishermen provide a long-term economic benefit.

Q: What is the Coalition's role now and in the future?

A: The Coalition would like to see a more refined definition of working waterfront, a definition that includes other marine trades. In addition, the Coalition would like to monitor the success and use of the Current Use Taxation Program and the Working Waterfront Pilot Project, invest in increased educational outreach at the municipal level, and collaborate with other organizations and coalitions.

Q: You mentioned that the Coalition wanted to limit the infrastructure allowed on the working waterfront. For example in the Portland Pier Project, how is this going to support the coalition's efforts?

A: The municipality is talking about putting private commercial development on a municipally owned pier; the question is, what effect will this have on public access.

Q: Will the definition of working waterfront be expanded to include other commercial business besides fishermen?

A: The Coalition has focused on fishermen because they are faced with unique economic challenges, specifically, they do not know what they will get for their catch. Unlike boatbuilders and marinas, fishermen do not have the ability to pass their business costs on to their customers making it difficult to stay in business. The challenge to expanding the definition of working waterfront is determining how far it should go. The Coalition would like to see an expanded definition, however, they are not sure yet what types of activities the new definition should include.

Q: Do you deal with dredging so that working waterfront can continue to be working waterfront?

A: No, but that is a good point. This is the feedback the Coalition needs to hear-where should resources be directed. We should add the issue of dredging to the website.

Next: Closing Question & Answer

Southern Maine Closing

Closing: Moderated Q/A with Panel of all Workshop Presenters and Summary of Central Themes

The Panel of Workshop Presenters includes: Joey Donnelly, Paul Dest, Jim Connors, Bill Healey, Kristen Grant, Gillian Garret-Reed, Eileen Sewall, Hugh Cowperthwaite, and Jeff Kendall.

Q: Where does the information compiled from the workshops go? For example, do you send the information to the state agencies and do you make recommendations to these agencies?

A: The supporters of the workshop will take the information and decide what steps to take next. In addition, the information will help inform the supporters of future decisions (i.e. where to put resources). We work closely with state agencies so there is no need to develop a report for those agencies.

Q: How do groups with competing interests (commercial, tourists, landowners, waterfront users) come to a solution that meets everyone's needs?

A: What we are trying to present tonight are tools for addressing this very issue. Just because the tourism industry and yourself have conflicting needs does not mean that with a little compromise both of your needs can not be met. However, it takes the involvement of the stakeholders, the landowners, the waterfront users, and the municipal and state agencies, working together.

Q What do you do when land has been preserved as working waterfront by a restricted deed, but the provisions of that deed are not being enforced (i.e. the municipality is letting development encroach on our working waterfront)?

A. The responsibility for protecting the land should be placed in the hands of a third party. For example a land trust. Also, it is very important to keep it on the public radar through some sort of press, because you do not want people to forget what the land was set aside for.

Q: Why can't we get rid of the language in the tax statutes that says property value is to be determined in accordance to "highest and best use"? This language promotes development as opposed to preserving open space and public access.

A: That language will not go away absent a Constitutional amendment. However, there are ways to get around it. For example, programs like the Current Use Taxation program allow for tax breaks for uses that are not necessarily considered the "highest or best use." Also a private individual can work with a land trust. The more your property is encumbered the less it is worth, the lower your taxes. It is important to note that there are land trusts that will enter into a conservation easement without requiring you to allow public access.

Also there are tax breaks for entering into conservation easements and preserving open space. You can apply for "open space tax deduction" if you are allowing public access (a public benefit) for a 20% open space deduction. In addition the deduction can be increased depending on other factors, such as amount of access, length of time you have allowed public access, etc.

Q: If you apply for the open access deduction do you have to keep it open for public access for a certain period of time?

A: No. It is based on public benefit and there are other public benefits besides public access (open space, no development, etc.). However, you need to meet certain criteria to be eligible for the deduction.

Q: Why can't we postpone valuation until the property is going to be sold?

A: You have to value property according to "just value". For example, if you have two houses with the same fair market value and one is occupied by a couple that has been there for twenty years and the other by a couple who just moved in, the new couple should not have to pay double the taxes; that would be unfair. It is an equity issue.

Q: Are there any communities in Maine where there is privately-owned beach front property leased by the private owner to a public entity for private enjoyment?

A: No.

We are running out of time so Paul thanks all the presenters and audience members for participating in the Workshop.