An attorney fighting for public access on Moody Beach in Wells is advising York voters to follow his case at the state Supreme Court before deciding on the $4 million land purchase at Long Sands Beach.
Attorney Benjamin Ford represents several families in Wells contesting Maine’s private beach laws. The current law permits private beach owners to restrict public access to those not engaged in “fishing, fowling, and navigation.”
The Supreme Court will hear arguments in October, less than a month before York votes on purchasing the Long Sands property owned by the Norton estate. While York officials and the Nortons claim the deal will secure public access to the sand in perpetuity, Ford argues that overturning the current law would render the purchase unnecessary.
“To have a municipality proposing to spend $4 million on a piece of sand that may actually not be worthless, but be priceless or valueless, is pretty striking to us,” Ford said. “We think that that is maybe not in the best interest of the people of the town.”
A press release on Ford’s assertion, as well as a claim that York is owed back taxes on the beach property, has drawn discussion on social media. Sylas Hatch, a realtor from the Dunham Group working with the Norton family on the proposed deal, called that and other claims circulating in town “misinformation.”
Hatch shared statements from the Norton family, whose attorneys contest claims that the land is valueless. The family expressed their awareness of the Moody Beach case and confidence in past rulings that uphold the law.
“The precedent that is being challenged in the Moody Beach case has been unsuccessfully challenged many, many times since the 1980s,” the family said, “And has never been overturned.”
Long Sands Beach purchase would protect public access, family says
The land owned by the Norton family at Long Sands Beach makes up much of the sand at the longtime vacation destination. It spans 42.35 acres of shorefront property and runs from the intersection of Juniper Road and Long Beach Avenue to the area of 87-89 Long Sands Road. The property, all east of Long Beach Road’s right of way, runs about 3,270 feet from north to south, according to a memo to the Selectboard.
The land has been owned for almost a century by the Nortons, the family said this week. Most of this time, they say they have sought to preserve the public’s access to Long Sands Beach through agreements with the town that date back to the 1950s.
Town Manager Peter Joseph said the town has no record of those agreements, but believes they may have been made despite being counter to state law today. He said the town will assess the property if the town does not take it over, but that the Nortons do not owe back taxes.
The property is owned now by four siblings including Roger Norton III. Their great-grandfather Harry Norton, who owned a 500-acre farm in York, bought the Long Sands land in 1937, the family said. He passed it to his son Roger Norton Sr., who made an effort to sell parcels of land specifically to families looking to come to York.
“He wanted York to be a family town,” Roger Norton III said about his grandfather.
The family states that Roger Norton Sr. established their first agreement with the town of York in the 1950s, allowing the public free access to Long Sands Beach. In their statement released Tuesday, they mentioned that these agreements included a provision that the town would not assess property taxes on the land.
The agreement was renewed in 1993 by Roger Norton, Jr., according to the family. The town, they said, has generated substantial revenue from parking meter fees as a result of the agreement.
The Nortons claim that around 2015, the town approached them about selling the land during negotiations for the property where the bathhouse is located. They commissioned an appraisal at their own expense, valuing the property at approximately $5.8 million, which included the economic impact of the beach on the town. However, a second appraisal conducted by the town in 2019 valued the property significantly lower at $43,000, based on the assumption that the land was “unusable for most development purposes beyond open space.”
The Nortons say that the town’s appraisal was incorrect and not legitimate.
“This appraisal was later invalidated following a third-party review, which later found the appraisal did not comply with appraisal accounting standards and was uncertified,” the Nortons statement read.
The town then commissioned a third appraisal with the involvement of the Norton family. The family said it confirmed a fair market valuation of $4.3 million but did not take into account the economic impact of the beach. The family has since agreed to sell it for $4 million, which they say is “substantially less than fair market value.”
The decision to sell at that price, they said, is rooted in their longstanding desire to share their land for the betterment of the community.
“The Nortons have been part of the fabric of York for generations, as residents, as business owners, and as neighbors,” the family’s statement read. “The current owners want the town of York to acquire the property so future generations can continue to enjoy it as they have.”
Residents air concerns regarding Long Sands Beach purchase
Residents have raised many questions to town officials since the Selectboard voted to move the proposed purchase to the Nov. 5 referendum ballot earlier this summer. They questioned the value of the land and asked in an Aug. 26 public hearing whether the pending case at Moody Beach in Wells could render the Long Sands Beach property valueless.
In that case, Peter and Cathy Masucci of Wells and other plaintiffs are seeking to overturn a 1989 court decision that sided with the owners of intertidal properties on Maine’s beaches, stating the public was limited to “fishing, fowling, and navigating” on such land.
At the Sept. 9 Selectboard meeting, Joseph addressed frequently asked questions about the property, including whether the town should delay the purchase pending the outcome of the Moody Beach case. He noted, like the Nortons, that the beach access law has not been overturned. The Moody Beach case is currently before the Supreme Court following previous rulings that upheld the law.
“It has been adjudicated at least at the superior court level that, that is still the law of the state, that you cannot get public access to the intertidal land for sunbathing,” Joseph said.
Access to the sand above the intertidal zone is not in dispute. The land above the high tide mark is considered private property and is not part of the Moody Beach case.
Joseph cautioned that private landowners could still restrict access to the intertidal zone, preventing access to the ocean. He noted that the town owns only one strip of land reaching the intertidal zone, located at the bathhouse.
“Portions of land that are above high tide considered upland, not tidal land, can be posted to trespassing, can be fenced at any time,” Joseph said. “There’s no exceptions to that.”
Attorney says public should have rights to Maine beaches
While the Norton family is confident precedent will once again be upheld by the Supreme Court, attorneys in the Moody Beach case say their arguments for beach access have never been made on a statewide level.
Ford said cases have challenged whether certain uses are prohibited under the 1989 ruling, like scuba diving. He said never has a team made their argument that the intertidal zone is owned by the state.
Ford explained that their argument begins with the Equal Footing Doctrine, which he said overruled colonial laws governing intertidal land when states joined the union. He stated that when Maine became a state in 1820, the doctrine effectively reset land ownership to the state. According to Ford, the chain of title cannot be traced back to the state because the state never granted the property to any other owners.
He argued that even if the state upholds the law, “fishing, fowling, and navigating” should be interpreted through a colonial lens. Since these activities are economic in nature, he contended that sunbathing should also be permitted due to its relevance to the local tourism industry.
Ford also noted that the precedent is considered common law, which can be established by judges but nullified by the state Legislature. He mentioned that a law was passed in the 1980s regarding the intertidal zone but was overlooked in the 1989 court ruling.
“These arguments have never been made on a statewide basis,” Ford said. “We’ve never had a case set up before that says, here’s a broad spectrum of activities that happen on our coast. You tell us (what’s allowed).”
Ford said he cannot say how the Supreme Court will rule in the case. He said he spoke out about York because he believed it was unwise to make such an expensive purchase while their case was still open.
“The point was it makes no sense to a municipality to offer to pay for intertidal land when this court, this case, is pending,” Ford said.
Some town officials have expressed a reluctance to support the vote. Members of the Budget Committee discussed the uncertainty of the property’s value at the Aug. 26 public hearing. While four members still voted to support the purchase, member Adam Gould said he voted against it because “the number still seems high.”
“If that ruling goes a different way, there’s a $4 million piece of land that’s really worth nothing,” Gould said in that meeting.
According to Joseph, during negotiations, the town asked the Norton family to consider a provision that would account for a potential future overturning of the 1989 law in the Moody Beach case. However, he noted that there was “no appetite” for such a provision.
The Nortons said their hope is to preserve York’s public access to the beach through the sale, which they believe could be at risk if the town does not purchase the land.
“Ultimately, the Norton family does not believe litigation is the best and most assured path forward for ensuring public access at Long Sands Beach,” the family said.
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