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Judge Cites Puritans In Banning Sunbathing

September 16, 1987

ALFRED, Maine (AP) _ The Puritans would have found repugnant the prospect of beachgoers slathered in suntan oil, a judge said in banning sunbathers and swimmers from private sections of a southern Maine beach.

Superior Court Justice William S. Brodrick, siding with beachfront property owners, ruled Tuesday that a 1648 Puritan ordinance permits only fishing, fowling and navigation on Moody Beach, a mile-long stretch of sand in Wells.

The police chief in the placid town said he doesn’t expect many arrests once the department begins enforcing the order in the 3-year-old case today.

The judge’s decision could have broad implications for the public’s use of all private beaches in the state, where sandy stretches are at a premium along the rocky coast.

Brodrick based his conclusions on four weeks of testimony on what public rights could be inferred from the Puritan ordinance regulating use of the intertidal zone, the area between low and high tides.

Thirty property owners had sued the state and Wells to keep the land in front of their cottages quiet and private. They testified that beachgoers often sit on the steps of beachfront cottages and litter.

Attorneys for the state and the town argued that the public had earned the right to use the beach for recreation based on historical use, local custom and the Puritan law, which they said guarded certain public rights to privately owned beaches.

Brodrick disagreed. He said that no public common-law right to sunbathe and swim there ever developed, and that the drafters of the ordinance ″intended fishing, fowling and navigation to mean exactly what it said and nothing more.″

″The type of intense beach usage sought by the Attorney General ... including beach towels, umbrellas, coolers and the slathering of bodies with various (suntan) oils ... would have been repugnant to the Puritans who drafted the original easement,″ the judge wrote.

Wells Police Chief William H. Zackular, whose 17-member force was to begin enforcing the law today, said, property owners have the right to ask trespassers to leave if on their beachfront.

If the sunbather or swimmer resists in front of a police officer, he will be given a summons or arrested, Zackular said.

″I don’t expect we’ll be arresting people on a regular basis,″ the chief said. ″I expect we’ll advise people of Judge Brodrick’s decision and that they’re on private property.″

Brodrick said members of the public have no unconditional right to walk along the beach but may do so as long as the property owners do not object.

The judge stressed that the decision applies only to Moody Beach.

The property owners’ attorney, Sidney Thaxter, cheered the ″total victory″ for his clients, saying he considered it a landmark decision.

David Cheever, a spokesman for Attorney General James E. Tierney, said state officials had no immediate comment.

Wells Town Manager Fred Breslin said that he was ″stunned″ by the decision and that an appeal is likely.

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