Maine’s highest court has backed the town of Cape Elizabeth in a yearslong dispute over seaside access in the Shore Acres neighborhood.

The Maine Supreme Judicial Court upheld a July 2018 Superior Court ruling that found several residents of Pilot Point Road failed to prove they had established ownership of an undeveloped portion of Surf Side Avenue. The so-called paper street, which appears on a subdivision plan, runs along the rocky Atlantic shore, between their multimillion-dollar homes and Broad Cove.

In its decision issued Tuesday, the Law Court also agreed that the waterfront residents had no standing to ask the court to block the town from developing a recreational path in the area of the paper street because the town has yet to accept the undeveloped strip of land as a public way.

“A declaratory judgment concerning the permissible scope of any hypothetical, future development of the (paper street) would be only an advisory opinion because the town has taken no formal, concrete steps toward accepting or developing the (paper street) and may never do so,” the Law Court stated.

The Law Court’s decision returns the opponents in this land-rights battle to their original corners, where the waterfront property owners remain insecure about the town’s plans for the paper street, said David Soley, attorney for the plaintiffs.

“They wanted it to be clear that the town wouldn’t develop a public path,” Soley said Wednesday. “If the town does nothing there, then we do nothing. If the town moves to develop a public path, then the property owners will resume their efforts.”

The Shore Acres neighborhood in Cape Elizabeth has been divided for years over public access to a strip of land in front of several homes that overlook Broad Cove. Maine’s highest court has decided the homeowners cannot claim ownership of that land. Gregory Rec/Staff Photographer

Cape Elizabeth officials are glad the Law Court has preserved the town’s right to so-called incipient dedication in a case that has cost local taxpayers about $180,000 in legal fees, said Town Manager Matt Sturgis.

Incipient dedication is an initial or early stage of land ownership that basically gives municipalities the right of first refusal regarding property where public ways are outlined on subdivision plans. In this case, the town has neither accepted nor vacated its right to establish the disputed section of Surf Side Avenue as a public way.

“The goal was to preserve the town’s incipient right of dedication and to preserve the town’s ability to accept these rights in the future,” Sturgis said.

Under Maine law, when a subdivision plan is recorded at the Registry of Deeds, “the public acquires rights of incipient dedication to public use of the ways laid out on the plan.” Adverse possession, or squatter’s rights, may take effect when another person uses a landowner’s property for at least 20 years uninterrupted. However, this legal doctrine is widely understood to be ineffective in taking or claiming ownership of government land, and the Law Court’s decision recognizes the town’s continued claim on the paper street.

The plaintiffs have 14 days to file a motion for reconsideration with the Law Court, said Durward Parkinson, the town’s attorney. The Town Council will hold an executive session during its next meeting to discuss the Law Court’s ruling and consider next steps, including whether to seek reimbursement from the plaintiffs for $5,000 to $10,000 in court costs other than attorney’s fees.

The lawsuit was filed in January 2018 by homeowners Imad and Hulda Khalidi, David and Kara Leopold, Andrew Sommer and Susan Ross, Stewart and Julie Wooden, and Pilot Point LLC. Each of their properties was valued at $1 million to $2 million for tax purposes, according to town records.

In their lawsuit, the property owners asserted that the town’s right to establish a public way on the disputed section of Surf Side Avenue had lapsed because they were allowed to encroach on the undeveloped street and “(exhibit) ownership in a manner inconsistent with a public way for a period exceeding twenty years.”

The complaint noted that the property owners had incorporated the paper street into their backyards, installing items such as a wooden deck, a brick patio, a fenced-in garden, a stone walkway, a brick stairway, an established hedgerow and an irrigation system on the narrow, 800-foot-long strip of land.

In her 2019 decision, Superior Court Justice Michaela Murphy concluded that the structures identified in the lawsuit “do not exhibit ownership over the property in a manner that is inconsistent with the incipient dedication and would not likely constitute adverse possession of the property.”

Surf Side Avenue first appeared on a 1911 plan for the Shore Acres subdivision, but it was neither completed nor formally accepted by the town.

Inland residents of the 115-home subdivision have for decades enjoyed the deeded right to hike along Broad Cove. In recent years, newer waterfront neighbors have indicated that they want to prevent the town from ever extending that right to the general public.

The dispute has sometimes flared into neighborhood confrontations, especially after the town’s Conservation Committee identified Surf Side Avenue as a potential public walking trail in the town’s 2013 Greenbelt Plan.

Under state law, the town may either vacate, accept or continue to extend the town’s right to accept the paper street. More than 1,400 town residents signed a petition in 2018 asking the council to accept Surf Side Avenue as a public way.

A 1987 statute stipulated that if a paper street wasn’t built within 20 years, the private rights-of-way related to that paper street would be terminated. However, the state has allowed municipalities to extend public claim to paper streets in 20-year increments, which the Cape Elizabeth Town Council has done twice for Surf Side Avenue, through 2036.

In September 2018, the Town Council rejected a proposed settlement to the land dispute, under which the town would have vacated any claim to the paper street. The plaintiffs, in turn, would have dropped the lawsuit, paid the town $500,000, assumed ownership of the land and started paying taxes on it.

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