[From the U.S. Government Printing Office, www.gpo.gov]





















































































            TD
            224
            .M2
            M68
            1990


















  IZ








               THE MOUSAM RIVER
                       GREENWAY PLAN
                                             Kennebunk, Maine




               A Study by The Kennebunk Conservation Commission
                                                    July 1990


























































                          "Financial assistance for preparation
                          of this document was provided by a
                          grant from Maine's Coastal Program
                          through funding provided by the U.S.
                          Department of Commerce, Office of Ocean
                          and Coastal Resource Management, under
                          the Coastal Zone Management Act of
                          1972, as amended."




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...this study is conducted in response to 
the need to conserve and enjoy the
significant resource that is the Mousam
River.  Our intent is to satisfy this need for
present and future generations who value
this resource.  The Kennebunk
Conservation Commmission has directed
this study in response to that need...


















	US Department of Commerce
	NOAA Coastal Services Center Library										2
	2828 South Hobson Avenue
	Charleston, SC  29405-2413






 



























                               The Kennebunk Conservation Commission


                              Chairman:                      Vice Chairman:
                              Nancy Naimey                   Mary Cook

                              Sharon DuBois                  Lynda Breary

                              Gregory Pargellis              Jan Kristof

                              Junior Member:                 Honoraa Member:
                              Robert Underwood               Wayne Roberts

                              Associate Member:              Secreta1y.
                              Nathalie Lloyd                 Barbara Storer





                              Study Consultant:
                              Sebago Technics, Inc.             Westbrook, Maine
             3                William T. Conway                         Scott R. Brown










                     the commission wishes to acknowledge the

                     following individuals and organizations in
                     response to their interest and contributions         to

                     this study.-


                     the people and the town of kennebunk

                     landowners within the study area

                     judy bernstein, kennebunk town planner

                     richard erb, kennebunk town manager

                     mark gunter, ex-officio commission member
                     richard hogue, ex-officio commission member

                     carol drake, former commission secretary

                     brian costello, kennebunk parks & recreation director

                     kennebunk comprehensive plan committee

                     terrence j. dewan associates/comprehensive plan consultants

                     ramanascho land trust

                     land for maine's future board

                     kennebunk light and power company

                     central maine power company

                     granite state gas transmission company
                     consolidated hydroelectric company                             .4





                           content

                           THE RESOURCE         .........................                Page 7

                                   thestud                  9 water control and safety
                                       ony,area.
                                   reg       nfluence       * history of the river
                                   water quality            9 the great fire
                           METHODOLOGY          ........................                Page 19

                           INVENTORY       ...........................                  Page 23

                                   land ownership           * topography
                                   land cover               o wetlands

                           ANALYSIS      ............................                    Page 33
                                9 public access             * the river corridor
                                9 existing conservation     * riverscape zones
                                   measures

                                *  wildlife                 9 analysis summary

                           THE PLAN      ............................                    Page 49

                                * proposed conservation           9 greenway parks
                                   measures

                                *  evaluate regulatory control    * greenway path
                                *  encourage conservation         * pathway design
                                   easements

                                e  natural landscape recovery     9 water-based
                                                                     recreation

                                *  education                      9 greenway signage

                                9  recreation use

                           IMPLEMENTATION           ......................               Page 75

                                * value to community          implementation cost
                                9 funding strategies          maintenance
                                o legal aspects of the plan
                           MAPPING      .......... ...................                   Page 87





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                       the resource


                       THE STUDY AREA

                       With the understanding of the Mousam, River as a regional
                       natural resource, the next step in the process is to define
                       the limits of the study area. For the purpose of
                       understanding the immediate context of the river corridor,
                       the study area has been essentially defined as the extent of
                       the natural landscape containing the river. Based on the
                       rural character of the area, developed areas occur along
                       existing roads and are linear in nature. A second factor
                       considered in the determination of the study area is the
                       presence of the Maine Turnpike. The turnpike edge
                       corridor creates a physical barrier to the natural landscape,
                       and hence defines one edge of the study area. Finally, the
                       political boundary which describes the Kennebunk-Sanford
                       town line is superceded by the natural landscape; therefore,
                       a portion of the Town of Sanford has been included within
                       the study area. In conclusion, the study area may be
                       defined as the natural areas contained by the Maine
                       Turnpike, the Cat Mousam - Webber Hill Road, Wichers
                       Mill Road and Old Falls Road in Sanford, and the Alfred
                       Road.










                                                                                                                                                    MA                          4%








                                                                                                                                                                                                      CIOD






                                                                                                                                            7119 PLAPS




                                                                 Mousam River
                                                                 Study Area






                                                                 north                                                                                            Up









                             the resource


                             REGIONAL INFLUENCE


                             "The river under study is the Mousam River which rises
                             on the Maine - New Hampshire border in the southeastern
                             foothills of the White Mountains. From its source, the
                             Mousam. flows approximately fifty miles to join the North
                             Atlantic Ocean at Kennebunk, Maine. The river basin
                             encompasses approximately 125 square miles of drainage
                             area. The Mousam, River can be described as being in an
                             advanced state of youth as regards the development of its
                             drainage pattern which is post-glacial in age. The
                             relatively early stage of downcutting results in the absence
                             of a signifcant floodplain; instead, relatively deep and
                             steep valleys exist within the river basin." - It is important
                             to consider that this study is focused upon only a segment
                             of this significant regional resource. Accordingly, the
                             management, conservation and enjoyment of the river
                             within Kennebunk is dependent upon the regional
                             influence and activity within the entire watershed basin.



                               Foster-Milter Associates: Feasibility Determination of Low Head
                             Hydroelectric Power Development at Existing Sites, Mousam River Project.









                                                                                                                  10










                                Mousam River Basin,

             SEA EIG






                                          F.RlRQRO







                                      MAN




                  SANFOR






             STUDY AREA









                                      KENNEBUNK
                                     J


                                    Atlantic Ocean









                             the resource


                             WATER QUALITY


                             Water quality standards for the Mousam River basin are
                             found in the Maine Revised Statutes Annotated, Title 38,
                             Chapter 3, Classification of Surface Water (Department of
                             Environmental Protection, 1989). "A particular
                             watershed may contain numerous classifications and
                             several categories. The section of the river within the
                             scope of this study receives a B-2 classification which
                             means the waters are acceptable for water contact
                             recreation, potable water supply after -treatment, and as
                             fish and wildlife habitat. "2 In recent years, the
                             Kennebunk Conservation Commission and Maine D.E.P.
                             have conducted water quality testing which has shown that
                             the river, in fact, exhibits very clean water. As
                             aforementioned, the protection of this water quality can
                             only be realized through a regional effort involving the
                             entire Mousam River Watershed.


                             2 Foster-Miller Associates: Feasibility Determination of Low Head
                               Hydroelectric Power Development at Existing Sites, Mousam River Project.












                                                                                                                 12



















                          WATER CONTROL AND SAFETY


                          Water flow characteristics within the study area are largely
                          controlled by three dam structures and impoundment basins. The
                          Old Falls Dam, owned and operated by Consolidated
                          Hydroelectric Co., Inc., is 63 feet in height. The Lane Perkins
                          Dam and Twine Mill Dam, operated by the Kennebunk Light and
                          Power District, are 8 feet and 18 feet in height, respectively.
                          The presence of these facilities represents the need for safety
                          precautions associated with the use of the river and the sites
                          immediately adjacent to the dam structures. In consideration  of
                          the feasibility of public use of the river, it is necessary to
                          coordinate such use with the flow needs of these two power
                          companies.
















             13









                       the resource


                       HISTORY OF THE RIVER


                            "the Indian name for the then so-called Cape Porpus
                            was Mousam...

                       ...  The forest in all its stateliness and gloom stood there,
                            as it had for centuries before, and the land it covered
                            was a part of the great Indian hunting-ground. Indians
                            and wild beasts had hither tho held entire and
                            undisturbed possession of the domain. With such
                            surroundings, the first white settlers commenced the
                            work of improvement; brought to the ground the first
                            tree ... obstructed the free flowing of waters where they
                            had rolled along for centuries unimpeded...",

                       The Mousam River, once called Cape Porpus River, has
                       played a major role in the development of Kennebunk. As
                       Colonial settlement progressed from the seacoast inland,
                       several mills were established on the river to harvest timber
                       and, later, to provide for electricity. These mill sites, as
                       well as further developments of man, are evident today.
                       Also of interest is the establishment of a walking path along
                       the river, established by the Boy Scouts, portions of which
                       are currently in use.


                          History of Kennebunk; Daniel Remich






                                                                                            14

































                                      MA








                Old Falls Dam




                Bov Scout Path









                                           Lane Perkins Dam

                                           Railroad Overoass

                                                  Twine Mill




         15









                              the resource


                              THE GREAT FIRE

                              it A major fire occurred in Southwestern Maine during
                              October of 1947. Initial estimates of the extent indicated
                              that 130,000 acres of forested land had been damaged out
                              of a total of 150,000 acres. Maps illustrative of the fire of
                              1947 designate that the Mousam River drainage basin was
                              affected by the fire, and the area in the vicinity of Old
                              Falls Pond and from Twine Mill to the Kennebunk Plains
                              were burned with unspecified density.             N   It is likely that the
                              deep valleys and steep slopes which contain the river
                              limited the extent of fire damage immediately adjacent to
                              the river. As a result, impressive stands of old growth
                              timber exist today in some areas along the river which
                              have not been affected by dam impoundment projects.





                              4Foster-Miller Associates: Feasibility Determination of Low Head
                              Hydroelectric Power Development at Existing Sites, Mousarn River Project.












                                                                                                                   16





































                                                                                                                                                                                                        ........... .

















                                                                                                                                                                .... ......



                                                                             DAMAGE WITHIN
                                                                              STUDY AREA












                                                                                                                                              x.M..














                                            17                                                              Southwestern Maine 1947 Forest Fire





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                 methodology

                 ... this study is funded through a grant from
                 the Maine Coastal Program to the Town of
                 Kennebunk. Sebago Technics, Inc. was
                 retained to assist the Conservation
                 Commission with the technical aspects of this
                 study. In accordance with grant funding
                 requirements and with the Conm-lission's
                 respect for landowners within the study area,
                 our methodology is based on a process
                 focused on public participation and comment.
                 The illustration of this process is depicted in
                 accordance with the chronologic order of
                 events associated with the study. A detailed
                 account of the inventory, analysis and
                 recommendations of this study are provided
                 herein...
















                                                                   20













                      identify property owners



                      property owners workshop




                      inventory and analysis




                      property owners workshop
                                                                    M P,





                      prepare draft plan

                                                                             DRAFT
                                                                               PLAN

                      conduct public hearing


                      prepare fmal plan                                          F1
                                                                              FINAL
                                                                               PLAN

                      implement the plan
                                                                   mil-








              21





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                      inventory

                      LAND OWNERSHIP


                      The Mousam River is a river body which is owned by the
                      State of and people of Maine. The Town of Kennebunk,
                      and the Kennebunk Light and Power District,
                      Consolidated Hydroelectric Company and the Granite
                      State Gas Transmission Company own a portion of the land
                      adjacent to the river. The land within the study area,
                      however, is almost exclusively owned by private
                      individuals or business corporations. Within the river
                      corridor, less than one percent of the land is publicly
                      owned and available for public access to the river. As an
                      important component of this study, the landowners within
                      the study area were contacted and encouraged to participate
                      in the planning process. A complete inventory of existing
                      ownership parcels is depicted on Map 1.















                                                                                       24





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                              inventory


                              LAI@M COVER


                              Within the study area, the land use patterns are diverse
                              and comprised of many components. To begin to define
                              the place, it is first necessary to examine the various land
                              cover types. With the aid of aerial photographs,* it is
                              possible to identify the surface characteristics of the
                              landscape. For a complete analysis of the study area,
                              refer to Map 2.





                                Source: Aerial Survey, Inc.; aerial photography. April 1989



















                                                                                                                   26





































                   TH    LAINS,
                                      %0

                               00
                     al 1* 0









                  LAND COVER

                      mixed forest cover     open/agricukwe

         27           u&wVresidential        pure evergreen forest







                      inventory

                      TOPOGRAPHY


                      In association with land cover types, landform. patterns
                      complete the observable landscape character within
                      the study area. Utilizing topographic contou'rs,* elevation
                      zones are delineated based on the height of land above
                      mean sea level. The elevation above sea level ranges
                      from approximately 60 feet to 200 feet within the study
                      area, creating a vertical change of 140 feet. The spatial
                      configuration of the landscape may then be defined by the
                      horizontal relationship of vertical elevation change.
                      Steep slopes and topographic enclosure within the river
                      basin are identified by this process. For a complete
                      inventory within the study area, refer to Map 3.




                      *Source: U.S.G.S. Datum, Kennebunk Quadrangle.


















                                                                                     28









































                                                                                N.Y,


                                                                                                                             ....... ...
                                                                                                                                                      00
                                                                                                                   ..............  ..
                                                                                             6                  . .. . . .......



                                                                                           0





                                                                                                                                                    6



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                                                                                                                                              0

                                                        . . . . .. . . . . . . .










                                                             .............




                                                  TOYDIOG-j"INAPHY

                                                             UPLAND AREAS                                                 RIVER CORRIDOR
                          29                                       terrace areas                                                 sloping areas







                     inventory

                     WETLANDS


                     Our knowledge of the importance of wetland areas today
                     is far better than it was many years ago. Unfortunately,
                     many of our wetland areas have been compromised or
                     irretrievably lost by past development activities. Wetland
                     areas provide excellent habitat for wildlife and plant
                     communities and serve as an important component of the
                     river environment.

                     Wetland communities are prevalent within the study area
                     and are most often associated with the edge condition of
                     the Mousam River. Various types of wetland associations
                     occur according to hydrology, soil conditions and
                     vegetation types. For the purposes of this study, mapping
                     is based on the National Wetlands Inventory.* It is
                     important to note that this information is not thorough and
                     accurate to actual site conditions; however, this mapping
                     is useful for analysis and planning applications. Wetland
                     mapping based on this information is provided on Map 4.



                      1982, Map 4, Kennebunk












                                                                                   30


























































                                                                                                                                                                                                              40dop







                                                                        THE PLAINS





                                                                                                                                                                                                . . . . . . . . . . . . . . . . . . . .




                                                                                                                                                           .... .......





                                                                   WETLAND AREAS



                                 31





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          ---- --- ------------ -- - -- - -- -- -- - - -                         - - - - - - --                 - ---



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                      analysis

                      PUBLIC ACCESS


                      During the course of this study, many access locations
                      have been considered. Due to the ownership conditions
                      within the study area, the objective to minimize impact on
                      landowners, and to control the amount of use within the
                      Greenway, proposed access points are limited. Phased
                      implementation of the proposed access locations will
                      provide for the evaluation of impacts of recreation use in
                      the river corridor. Proposed access points are as follows:

                      ï¿½ Old Falls Pond/Old Falls Road (Sanford)

                      ï¿½ Regional Resource Interpretive Center
                      ï¿½  Mill Road/Mousam River Crossing

                      ï¿½  West Kennebunk Village Park

                      ï¿½  West Kennebunk Riverpark
                      ï¿½  Maine Turnpike/Mousam River Crossing










                                                                                   34


















                OLD FALLS ROAD
                ACCESS SITE








                                      old falls
                                          pon
                          vd,
                           u


                REGIONAL RESOURCE   the plains
                INTERPRETIVE CENTE







                WEST KENNEBUNK
                VILLAGE PARK


                MILL ROAD ACCESS SITE
                WEST KENNEBUNK RIVERPA-             treet



                MAINE TURNPIKE ACCESS SIT
         35                               main tur ike







                    analysis


                    EXISTING CONSERVATION MEASURES


                    Present resource protection regulations which serve to
                    protect the Mousam River exist in the form of the
                    Kennebunk Municipal Ordinances, Resource Protection
                    District (RP); and further by the State of Maine Natural
                    Resources Protection Act (NRPA). While these measures
                    serve to conserve existing resources in the river basin,
                    they are based on standard 100 foot and 250 shoreland
                    dimensions from the river or associated wetlands; they do
                    not relate to the diversity of terrain exemplary within the
                    river corridor. In most cases, the overall river landscape
                    is subject to further compromise from human activity.




                              KENNEBUNK SHORELAND, ZONING
                                    250                    250'
















                                      -4
         NATURAL RESOURCES PROTECTION ACT                                      36







                       analysis

                       WILDLIFE


                            "that portion of our territory now known as the Alewives and The
                            Plains, as well as the region roundabout ... abounded with game
                            an4 the streams with fish; deer, moose and all the smaller wild
                            animals usually found in the northern woods; otter, muskrat and
                            beaver ... and birds in countless variety built their nests in the trees
                            and shrubs as well as on the ground. The scenery - forest, meadow
                            and water - was delightful. " 4
                       Much of the wildlife habit'at recounted in this turn of the century
                       passage is still available to see within the river corridor. During the
                       course of this study, numerous sightings of wildlife include the great
                       blue heron, red-tailed hawk, numerous ducks, water-fowl and songbirds.
                        Beaver activity is particularly noticeable along the river today. Plant
                       communities are equally diverse and numerous. The Wild Garlic, a rare
                       plant in Maine, occurs within the river corridor. The adjacent
                       Kennebunk Plains provides habitat for endangered -animal species,
                       including the Black Racer Snake and Grasshopper Sparrow.

                       As a natural river corridor, the Mousam. River and adjacent lands
                       provide for both wildlife habitat and wildlife movement free from
                       roadways and developed areas. In planning for the future of this river
                       corridor, wildlife protection should be assigned a high priority.

                        History of Kennebunk; Daniel Remich









              37







                      analysis

                      THE RIVER CORRIDOR


                      By analysis of the topographic configuration within the
                      study area, it is possible to define that portion of the
                      landscape which is directly associated or influenced by the
                      Mousam River. Through the application of
                      cross-sectional analysis, the river corridor is hence
                      defined as the extent of the landform which contains the
                      river. The river corridor area is depicted on Map 5 and
                      its components are further described as follows:
                      ï¿½ edge transition zone

                          ... this zone contains the topographic "edge" which
                          descends from the upland terraces within the study area
                          into the river bottom.

                      ï¿½   visual influence zone


                          ... this zone is comprised of the sloping terrain between
                          the edge transition zone and the river bottom and may
                          be described as the area potentially visible from the
                          river or from within the river container.

                      ï¿½   the riverscape

                          ... this area includes the river itself, as well as islands
                          within the river, sand bars, river meanders and
                          associated wetlands.




                                                                                      38





















                                    THE STUDY AgEA



                                       river corridor









                        -4       THE RIVER CORRIDOR               40
                             G       visual influence zone

                                              the
                                           riverscape






           39                         edge transition zones       T







                       analysis

                       RrVERSCAPE ZONES


                       The inventory and analysis to this point has been
                       organized on a descending order of scale: the study area;
                       land cover types; topographic configuration; the river
                                                                          ined as
                       corridor. The riverscape has been previously def
                       the river itself, as well as islands, sand bars, river
                       meanders, and associated wetlands. Within the river
                       corridor, the river expesses many different conditions
                       which contribute to formulate the character of the river
                       basin. Within the study area, distinct riverscape, zones are
                       evident between Sanford and the Maine Turnpike, based
                       on the following criteria:

                       ï¿½ sinuousity
                            ... describes the degree of meander or linear configuration
                            of the river channel; many sections meander often, while
                            other sections are straight and linear.

                       ï¿½ enclosure

                            ... describes the topographic relief upland from. the river;
                            some sections feel very enclosed by topography, other
                            sections feel wide open.

                          water movement

                            ... dam impoundments have significantly altered and
                            slowed water movement in some sections; other sections
                            flow naturally or contain rapids.

                          influence of man
                            ... the upper reaches of the river are very natural, while
                            lower sections contain dams, road crossings and
                            proximate population areas.                                  40










                        RIVERSCAPE ZONES:


                      Zone 1: Old Falls Pond

                      Old Falls Pond is broad and
                      approaches the scale of a lake
                      rather than a pond.


                      Zone 2: The Narrows

                      The river is narrow and
                      exhibits a strong sense of
                      enclosure; water movement
                      is moderate to rapid below
                      Old Falls Dam


                      Zone 3: The Lagoon

                      Water movement is slow
                      with a high degree of
                      sinuousity; very little sense
                      of enclosure; linear lagoon
                      character due to impoundment.


                      Zone 4: The Village

                      Mill Road crossing, darn
                      structures, railroad crossing,
                      proximate West Kennebunk
                      population; this is where the
                      village meets the river.

                      Zone 5: The River

                      Within the study area, the
                      only section with water movement,
                      old growth timber, and topographic
                      enclosure which exhibit the character
                      of a natural river.


             41         See Map 5







                       analysis

                       ANALYSIS SUMMARY


                       The inventory presented herein has been conducted to gain
                       an understanding of land ownership patterns, vegetation,
                       topography, wetlands, wildlife, historical aspect, and
                       existing conservation measures within the Mousarn River
                       Basin study area. The analysis presented in the preceding
                       pages has provided an understanding of the overall
                       character and essential components of the river. This
                       analysis has identified that the Mousam River, within the
                       study area, is composed of distinct segments, referred to
                       as riverscape zones. The analysis summary further
                       evaluates each riverscape zone with respect to existing
                       conditions and potential future use. The analysis criteria
                       is described as follows:



                       ï¿½ proximity of existing developed areas
                            ... evaluates the adjacency of existing residential or
                            commercial development to the river.


                       ï¿½ sensitivity to future development
                            ... evaluates the potential for future development widiin
                            the river corridor.


                       ï¿½ diversity of land cover
                            ... Measures the diversity and complexity of various
                            land cover types.



                                                                                       42














                        0 degree of topographic enclosure

                              ... measures the degree to which the river is enclosed
                              by sloping terrain.



                        9 water movement




                        0 incidence of wetlands



                        0 wildlife potential: terrestrial

                              ... evaluates the potential for terrestrial wildlife habitat
                              and wildlife movement within the river coridor.



                        0 wildlife potential: aquatic

                              ... evaluates the potential for aquatic wildlife habitat
                              widiin the river corridor.



                        0 river overlook potential

                              ..evaluates the potential for overlook sites within the
                              river corridor.



                        0 river access potential

                              ... evaluates the potential for public access to the river.



              43







                   analysis

                  RIVERSCAPE ZONE 1: OLD FALLS POND
















                           true,





                      at turnpike
                                                                 >
                                                                 0
           ANALYSIS CRITERIA:
            proximity of existing developed areas
            sensitivity to future development
            diversity of land cover
            degree of topographic enclosure

            water movement
            incidence of wetlands
            wildlife potential: terrestrial
            wildlife potential: aquatic
            river overlook potential
            river access potential                                      44
















                   RIVERSCAPE ZONE 2: THE NARROWS






                            omf Is





                          the PIIIUA


















                               IM turapike

                                                                         0
                    ANALYSIS CRITERIA:                                S
                     proximity of existing developed areas
                     sensitivity to future development            0
                     diversity of land cover
                     degree of topographic enclosure

                     water movement
                     incidence of wetlands
                     wildlife potential: terrestrial
                     wildlife potential: aquatic
                     river overlook potential
            45       river access potential







                   analysis

                   PJVERSCAPE ZONE 3: THE LAGOON





















                   Maine 111frkpike


         ANALYSIS CRITERIA:
          proximity of existing developed areas               49
          sensitivity to future development
          diversity of land cover
          degree of topographic enclosure                     40
          water movement                                      0
          incidence of wetlands
          wildlife potential: terrestrial
          wildlife potential: aquatic
          river overlook potential
          river access potential                                       46

















                    RIVERSCAPE ZONE 4: THE VILLAGE






















                              Malow lurnpik*


                                                                          0
                    ANALYSIS CRITERIA:
                     proximity of existing developed areas
                     sensitivity to future development
                     diversity of land cover
                     degree of topographic enclosure

                     water movement

                     incidence of wetlands
                     wildlife potential: terrestrial
                     wildlife potential: aquatic
                     river overlook potential
            47       river access potential







                  analysis

                  RIVERSCAPE ZONE 5: THE RIVER

















                     fro"





                 iturnpike
     ANALYSIS CRITERIA:                                E
      proximity of existing developed areas
      sensitivity to future development
      diversity of land cover
      degree of topographic enclosure
      water movement                               0
      incidence of wetlands
      wildlife potential: terrestrial
      wildlife potential: aquatic
      river overlook potential
      river access potential                                           48





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                        the plan

                        PLAN COMPONENTS


                        The analysis conducted concludes that the Mousam River is
                        a significant regional resource with great value to the
                        people of Maine. This study further concludes that the
                        particular section of the river within the study area largely
                        remains in its natural state and exhibits wild and scenic
                        characteristics. Finally, this study area has experienced,
                        and continues to experience, a rapid rate of residential and
                        commercial development. In response to the intent of this
                        study and to the analysis presented herein, the Conservation
                        Commission has identified three components of the
                        Mousam River Greenway Plan...


                        * conservation



                        0 education


                        0 recreation and public acess


                        As a transition step between the study area analysis and the
                        proposed plan for the Mousam River Greenway, a
                        Greenway Framework Plan has been prepared. This plan
                        depicts the river corridor, its sensitive areas, points of
                        interest, and public access locations. See Map 7.





               51







                      the plan
                      PROPOSED CONSERVATION MEASURES

                      it In virtually every community, parcels of undeveloped
                      land provide important benefits that accrue from the
                      protection of scenery, farmland, wildlife habitat,
                      recreation lands and watershed areas. Unless these lands
                      and their uses are protected, nothing will prevent their
                      succumbing to the pressure of development.",

                      A community effort is required to maintain the current
                      natural quality of the Mousam River Basin. Private
                      landowners, utility companies, land developers and the
                      Town of Kennebunk should work together towards a
                      common goal of conserving the significant resource that is
                      the Mousam River. The Kennebunk Conservation
                      Commission should act as the "umbrella" for overseeing
                      the implementation of the folowing conservation
                      measures:


                      ï¿½   further evaluate the adequacy of existing shoreland
                          protection ordinances and environmental review
                          criteria


                      ï¿½   encourage the creation of conservation easements
                          along riverfront properties and, if warranted,
                          recommend Town purchase of those lands which
                          are most in need of protection


                      ï¿½   encourage the recovery of the natural landscape



                       'Me Undowners Options, Janet Milne, 1985                     52












                      EVALUATE REGULATORY CONTROLS


                      The inventory and analysis of the natural landscape which
                      has been conducted concludes that standard setbacks
                      established by existing regulations do not adequately
                      address the diversity of terrain within the river corridor.
                      It is not within the scope of this study to recommend
                      specific regulatory ordinance amendments. However, it is
                      recommended that local review boards carefully
                      examine any activity within the river corridor zone.
                      Specific review criteria should include groundwater
                      protection, phosphorus mitigation, erosion and
                      sedimentation control, wetland protection, wildlife habitat
                      protection, protection of old growth timber, and visual
                      impact assessment required to retain the existing integrity
                      of the place.



                         -A EVALUATE REGULATORY CONTROL
                                                                                'M P"
                          -40         THE RIVER CORRIDOR

                                            visual influence zone



                                                      the
                                                   riverscape
                                                t

                                                 Itv,


              53                  T          edge transition zones          T







                      the plan

                      ENCOURAGE CONSERVATION
                      EASEMENTS


                      "Maine possesses not only an outstanding natural
                      environment, but caring people with the will to conserve
                      it. The tradition of land conservation by private citizens
                      is strong in Maine. The decision to permanently protect
                      land is a decision that requires careful thought. Financial
                      realities, personal desires and family needs must be
                      considered, along with the type of land and the reasons
                      for wanting to conserve it. This often difficult decision
                      can be simplified by understanding the options available to
                      a landowner who is interested in land protection." I
                      Preservation of conservation lands within the Mousam.
                      River Basin is dependent upon the private landowners
                      within the study area whose options for preserving the
                      river corridor include the following:

                      ï¿½ cluster development

                      ï¿½ conservation easements

                      ï¿½ mutual covenants with neighboring landowners

                      ï¿½ long-term conservation leases
                      ï¿½ donations of land to land trusts of public agencies

                      ï¿½ purchase of land



                        Ile Lmdowners options, Janet Milne, 1995


                                                                                     54








                               cluster development

                                 Cluster development for currently undeveloped tracts can
                                 preserve natural areas within the river corridor.
                                 Developers are encouraged to grant conservation/
                                 recreation easements associated with new development
                                 projects.

                            *conservation easements

                                 Conservation easements are legal means by which
                                 landowners voluntarily set permanent limitations on the
                                 future use of land, thus protecting their land's attributes.
                                 An owner can still use the land and can still sell it. But,
                                 if the land is sold, it remains subject to the terms of the
                                 easement. Landowners can realize property tax benefits
                                 for land placed in conservation easements.

                               mutual covenants I

                                 If the landowner does not wish to enter into an agreement
                                 with an outside agency, he may limit future use of the land
                                 by exchanging mutual covenants with neighboring
                                 landowners interested in protecting their property from
                                 uncontrolled development.
                               long-term conservation lease

                                 The long-term lease provides an alternative for those who
                                 do not wish to transfer their land to a conservation agency
                                 or organization, but who want to see it used or protected
                                 by such a group for a period of years.

                               donations of land I

                                 Donations of land are generally transferred to land trusts
                                 which are private, non-profit organizations devoted to
                                 protecting land. I In Kennebunk, the Ramanascho Land
                                 Trust has achieved great success in protecting valuable
                                 open space lands.

                               purchase of land I

                                 Purchase of land may be appropriate for landowners who
                                 need or prefer to sell their property, yet wish to see it
                                 protected. The landowner has the option of selling at
                                 fair market value, at a "bargain price" or in installments.


                 55            The Landowners Options, Janet Milne, 1985







                      the plan

                      NATURAL LANDSCAPE RECOVERY


                      Conservation by right does not include management of
                      natural resources. The purpose of conservation is to
                      allow the dynamic ecological process involving natural
                      resources to occur on its own accord. Recent water
                      impoundment projects on the Mousam River have
                      dramatically altered the natural landscape. Old growth
                      pine, hemlock and hardwoods, which contribute to the
                      river's landscape character, have been removed. Much
                      remaining vegetation has been inundated by the raised
                      water elevation associated with dam construction.

                      It is now time to allow the natural landscape succession to
                      renew and restore itself. Through the non- management
                      of this process, the river will regain its sense of natural
                      landscape character.
















                                                                                     56











































                                                      RL
                                  Mull IN Mill Tlllmii @11

                  JULY 1990-


















                                                   ji


          57      JULY 2025







                     the plan


                     EDUCATION


                     Understanding natural resources and their importance to a
                     community begins with the process of education.
                     Conservation, protection, and wise use of our remaining
                     natural resource base can be greatly enhanced through
                     achieving an understanding of what natural resources are
                     and what they mean to a community.

                     Some aspects of education which are important concerning
                     the Mousani River include the following:


                     ï¿½    Understanding that a particular segment of the river
                          that we may be familiar with is only a part of a River
                          System of regional significance. Where does the
                          river start and end? What other communities
                          share the river? What is a watershed basin?


                     ï¿½    Understanding that the management, conservation
                          and enjoyment of the river within Kennebunk is
                          dependent upon the regional influence and activity
                          within the entire watershed basin. What are the
                          effects of development activities and water pollution
                          from other communities on our segment of the river?







                                                                                    58















                            Learning about the specific natural resources within
                            the river basin. What is a wetland? What is the
                            importance of old growth timber? Why is the river so
                            important to wildlife? What is the history of man and
                            influence of man within the river corridor?


                        These and many other aspects of education about the
                        Mousam River are important to Kennebunk, particularly to
                        the children of this community. With increased awareness
                        and knowledge, the objectives of management,
                        conservation and enjoyment can be more successfully met.
                        Potential methods of implementing the education objective
                        include the following:


                            education of children through school programs.


                            education and activities organized by Kennebunk
                            Department of Parks & Recreation.


                            installation of interpretive signage and other
                            interpretive features within the river environment.


                            publication and distribution of this study.


                            encourage cooperative education and interpretation of
                            the Mousam River and adjacent Kennebunk Plains.







               59







                     the plan

                     RECREATION


                     "Ten minutes drive from my apartment, there is a long,
                     grassy ridge from which you can look out over parkland
                     and sprawling metropolis, over bay and ocean and distant
                     mountains. I often walk along this ridge in order to think
                     uncluttered thoughts or to feel with accuracy or to achieve
                     some other worthy end, recognized or submerged." I
                     This quotation concisely describes the type of recreation
                     envisioned within the Mousam. River Greenway: passive,
                     low key, an opportunity to relax and contemplate life in a
                     natural setting. The Kennebunk Conservation
                     Commission has strived to create a plan which is
                     consistent with its goals of conservation, fosters
                     understanding and education of natural resources, and is
                     sensitive to potential impacts of private landowners. The
                     recreation aspects of the Greenway Plan, as noted below,
                     are further described on the following pages:


                     ï¿½    recreation use

                     ï¿½    greenway parks

                     ï¿½    river pathway

                     ï¿½    water recreation

                     ï¿½    public access



                       The Complete Walicer, Cohn Fletcher, 1978
                                                                                    60













                        RECREATION USE

                        0   Suggested Uses which would be permitted within the
                            Mousam River Greenway are as follows:
                                   * walking          e cross-country skiing

                                   0 jogging          o nature interpretation

                                   * fishing          * wildlife observation

                                   9 boating*         e conservation

                                   0 hunting"

                        0   Suggested Prohibited Uses within the Mousarn River
                            Greenway are as follows:

                                   * snowmobiles            * fires

                                   9 motorized vehicles     * trespassing
                                     (including ATVs)

                                   * horseback riding       e overnight camping


                        0   Hours of Use within the Mousam River Greenway
                            should be limited from sunrise to sunset. Management
                            and maintenance of recreation facilities should be
                            assumed by the Town of Kennebunk. Use restrictions
                            should be posted, and access control devices should be
                            provided at all access points within the Greenway.


                           boating limited to non-motorized boats, excepting electric
                           troffing motors

                           pathway would be closed during hunting season



              61














































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                       GREENWAY PARKS

                       0    regional resource interpretive center

                            ... located at the interface between the Mousarn
                            River and the Kennebunk Plains, this facility is
                            envisioned to provide an opportunity to experience
                            both of these important regional resources. The
                            Kennebunk Plains has been purchased by the State
                            of Maine for preservation and, as such, this facility
                            would be developed in conjunction with State
                            authorities. Proposed potential uses include a small
                            visitors center building housing maps and interpretive
                            information about the Kennebunk Plains and the
                            Mousam, River; exterior facilities @roposed are
                            handicapped pathways, river overlooks, nature
                            interpretive signage, and linkage with the Mousarn
                            River Greenway Path.



















                                                                                       62














                           west kennebunk riverpark


                           ... this park, located on the abandoned Boston and
                           Maine Railroad overpass over the river, would
                           provide passive recreation opportunities to the
                           residents of West Kennebunk Village. The location
                           of this park on the former railroad overpass provides
                           easy access for area residents and a dramatic setting
                           overlooking the river. The site is generally isolated
                           from, yet within walking distance of, the West
                           Kennebunk Village residential district. This linear
                           park, approximately 100 feet above the river,
                           provides excellent views both upriver and downriver,
                           and is located in an historical context, including river
                           dams, the Twine Mill, and the overpass structure
                           itself. Proposed facilities include limited parking,
                           complete handicapped accessibility, and linkage to
                           the Mousam River Greenway Path.



















                                                                                      64






































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                                     65







                       the plan

                       MOUSAM RIVER GREENWAY PATH

                       The primary component of recreation use within the study
                       area is the proposed River Pathway. Serving as the
                       backbone for recreation use of the river corridor, the
                       pathway is planned to provide pedestrian access for 5.5
                       miles along the river between the Maine Turnpike
                       overpass in Kennebunk to Old Falls Pond in Sanford. In
                       addition, a one mile loop trail is proposed along the river
                       immediately adjacent to West Kennebunk Village.
                       Descriptive elements of the pathway plan are as follows:


                            location criteria

                            ... as a result of the inventory and analysis conducted
                            as part of this study, the major criteria for the
                            pathway location were identified as:


                            0 avoid wetlands and other sensitive areas


                            9 minimize impact on landowners


                            * avoid dam structures and other hazard areas


                            * maximize the diversity of experience along
                              the path afforded by the diversity of land
                              cover, topographic conditions, riverscape
                              character, overlooks, and other points of
                              interest


                                                                                        66















                            pathway linkage


                            As the major recreation spine within the Mousam
                            River Greenway, the path provides pedestrian linkage
                            between greenway parks, river overlooks, and access
                            points within the river corridor. The pathway, as
                            planned, would also provide linkage to private
                            properties and create improved pedestrian access to the
                            river for area landowners. Private trails would be
                            clearly signed as prohibited for public use.

                            At a municipal and regional scale, this section of the
                            proposed river pathway may be extended in the future.
                            For example, a future linkage could be implemented
                            with the bridle path currently used along the Mousam.
                            River below Kennebunk Village. In turn, the pathway
                            may be extended west into Sanford. In the future, it
                            may be possible to follow the river from its
                            headwaters to its confluence with the Atlantic Ocean.






















              67







                       the plan

                       PATHWAY DESIGN


                       Map 7 depicts the location and design for the river
                       pathway in conformance with the location criteria cited
                       herein. It is recommended that, prior to the
                       implementation of the path, the route be marked in the
                       field to account for the detailed and isolated conditions of
                       the natural landscape.
                       With the exception of canoe portage sections and
                       the one-mile loop trail proposed near West Kennebunk
                       Village, the pathway is designed at a width of two feet,
                       with natural forest litter forming the trail surface material.
                       Portage sections and the one-mile loop trail are designed
                       at a width of five feet, with stone dust or granite
                       screenings forming the trail surface. In all cases, the trail
                       is designed to follow the natural ground configuration.
                       Switchbacks are proposed for locations where the trail
                       ascends and descends sloping areas. All trailheads should
                       include timber or stone barriers to prevent motorized
                       vehicle use.














                                                                                        68


























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                   69







                      the plan

                      WATER BASED RECREATION


                      Light watercraft, such as canoes, kayaks or small fishing
                      boats are permitted to use the river for pleasure boating
                      and fishing use. Vehicular access and parking for these
                      purposes are suggested at the Mill Road river crossing
                      near West Kennebunk Village and at Old Falls Pond in
                      Sanford.

                      Evaluation of boating use within this section of the river
                      concludes that the primary use is most suitable between
                      Mill Road and the Old Falls Dam. The limited length of
                      this river section (3.5 miles) and lack of water movement
                      offset the need for "put in" and "take out" facilities;
                      therefore, the Mill Road crossing is proposed as the only
                      access point for boating use within Kennebunk.

                      A vehicular access point at Old Falls Pond in Sanford is
                      suggested as an amenity for Sanford residents. Old Falls
                      Pond itself is of sufficient size to accomodate limited
                      boating use independent from the river. In all cases,
                      portage trails are proposed to circumvent structures at Old
                      Falls Pond Dam', Wichers Mill Dam and the Twine Mill
                      Dam.










                                                                                      70



















                       OLD FALLS POND
                       ACCESS SITE
                       o parking -
                       o boat laun6h





                                                old falls
                                                    pon

                                  04,
                                   U,
                                    e


                                             the plains


                       OLD FALLS DAM PORTAGE                      *0


                       PRIMARY BOATING AREA

                        3.5 miles river section-




                       MILL ROAD ACCESS SITE
                       * parking                                treet
                       & boat launch
                       o lane perkins dam portage


                       TWINE MILL DAM PORTAGE
                                                           P
           71                                        maine'Pturnpike







                     the plan

                     GREENWAY SIGNAGE


                     Consistent signage is recommended throughout the
                     Mousam, River Greenway in order to establish a uniform
                     understanding of the river corridor. A standard logo
                     should be developed to provide a major theme for the
                     Greenway; this logo should remain as a standard feature
                     throughout the Greenway, most importantly at proposed
                     access locations. Specific signage within greenway parks,
                     access facilities, and along the river pathway should
                     incorporate or be designed as compatible with the
                     Greenway logo. Basic signage program elements should
                     be used to convey the following messages:
                           ï¿½ greenway access points
                           ï¿½ permitted and prohibited uses

                           ï¿½ hours of use

                           ï¿½ handicapped facilities

                           ï¿½ trail markings

                           ï¿½ overlook sites

                           ï¿½ boat launch sites

                           ï¿½ nature interpretation components




                                                                                    72


























































                                         MMSAM RIVER         M(XJSAM RIVER
                                           GREENWAY            GREENWAY











                                                                                                        10










                                          MILL ROAD ACCESS SITE
                                          Area Rules:
                                                                       @ER
















                                             OUSAM RIVER GREEN
                 73





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                      implementation

                      SUMMARY


                      Implementation of the Mousam River Greenway Plan is
                      an evolutionary process which will require participation
                      and cooperation at the local level. The Kennebunk
                      Conservation Commission, Kennebunk Planning Office,
                      Kennebunk Parks and Recreation Department, Greenway
                      area landowners, and residents of the Town must all
                      cooperate for the ultimate plan to be realized.

                      The objectives of the plan to be implemented have been
                      defined as conservation, education and recreation, in
                      order of priority. In order to achieve these objectives,
                      more specific implementation steps are as follows:
                      ï¿½ implement proposed conservation
                          measures

                      ï¿½ develop greenway education programs

                      ï¿½ incorporate greenway plan into
                          Comprehensive Plan update

                      ï¿½ establish funding strategies

                      0 encourage greenway easements

                      0 construct recreation facilities

                                                                                    76













                       VALUE OF THE PLAN



                       "Affection for and commitment to the cause of natural
                       corridors is growing in spirit and in fact all across the
                       United States. Called greenways, these corridors link open
                       spaces and tie an increasingly urbanized population to
                       experiences in the outdoors. Greenways may be as
                       elaborate as a hiking-biking-riding route, but they can also
                       be as simple and natural - and ecologically important - as a
                       stretch of stream bank left wild."'

                       The above passage illustrates the activity of greenway
                       implementation nationwide and describes the basic
                       objectives of the Mousam River Greenway Plan:
                       conservation, education, and recreation within a natural
                       river corridor. Similar to other communities,
                       implementation of this greenway is dependent upon the use
                       of private lands. The National Geographic article describes
                       the experiences of other communities, in part, as follows:

                           "The community really got behind it ... thirty-two
                           landowners agreed to let the path run through their
                           property. "           ... Anne Lusk, Stowe, Vermont

                           "The trail played a part in our deciding to buy this
                           house. "       ... Marty Eichinger, Portland, Oregon
                            (A Seattle study showed that property sold faster
                           when it faced a recreation corridor).

                           "I found that 90 percent of the areas with outstanding
                           natural and cultural features were around water,
                           wetlands and steep topography. "
                                             ... Phil Lewis, Madison, Wisconsin


                       2Paths to the Future, National Geographic Magazine,
                        Article by Noel Grove, June IM


             77







                      implementation

                      FUNDING STRATEGIES


                      The acquisition of greenway easements and construction
                      of recreation facilities will require further investigation
                      into available funding sources. Potential funding sources
                      are identified herein; however, funding strategies require
                      direction from municipal authorities...

                          ï¿½ Private donations

                          ï¿½ Private fund raising campaigns

                          ï¿½  Municipal bonds

                          ï¿½  State bonds

                          ï¿½  Maine Coastal Program

                          ï¿½  Federal Land and Water Conservation Funds
                             (FLWC)

                          ï¿½  Land for Maine's Future Board












                                                                                    78














                          IMPLEMENTATION COST


                          Aside from property or easement acquisitions within the
                          greenway, approximate long-term implementation costs are
                          itemized as follows:


                          0 regional resource interpretive center
                                  interpretive center building            $50,000.00
                                  access roads and parking                   25,000.00
                                  walkways and landscaping                    5,000.00
                                  trailheads, signage, miscellaneous          5,000.00


                                                            Subtotal      $85,000.00



                             west kennebunk riverpark *
                               * access roads and parking                 $ 5,000.00
                               0 walkways and landscaping                      5,000.00
                               9 fencing, safety guardrails                    5,000.00
                               9 ti-ailheads, signage, miscellaneous           5.000.00

                                                            Subtotal      $20,000.00



                             west kennebunk mile loop trail
                                  a-ail construction and signage          $ 20,000.00


                                                            Subtotal      $ 20,000.00





               79















                       ï¿½ old falls pond access site *
                            ï¿½ access roads and parking             $  5,000.00
                            ï¿½ trailheads, signage, miscellaneous      5,000.00

                                                      Subtotal     $ 10,000.00


                       ï¿½ mill road/mousam river access site

                            ï¿½ access roads and parking             $ 15,000.00
                            ï¿½ trailheads, signage, miscellaneous      5,000.00

                                                      Subtotal     $ 20,000.00
                       ï¿½ maine turnpike/mousam river access site *                                       

                            ï¿½ access roads and parking             $  5,000.00
                            ï¿½ trailheads, signage, miscellaneous      5,000.00


                                                      Subtotal     $ 10,000.00


         ï¿½ greenway river path**
  signage, miscellaneous materials $ 15.000.00


                            Subtotal     $ 15,000.00


                         * Estimates are based on conceptual planning.

                       **  Pathway construction cost based on volunteer labor.


                                                                                        80
 













                       PHASING

                       To a great extent, phasing of development of the proposed
                       recreation facilities will be dependent on easement
                       acquisitions and funding success. In support of the
                       Greenway Plan, the following phasing scenario is
                       recommended as follows:

                       0   Encourage land developers to set aside easement areas
                           for conservation and recreation as part of new
                           development plans.

                       0   Acquire easement for areas of particular scenic
                           quality, environmental sensitivity, or vulnerability
                           to development.

                       0   Construct Regional Resource Interpretive Center in
                           cooperation with the Maine Department of Inland
                           Fisheries & Wildlife.

                       9   Acquire easements for contiguous riverpath sections,
                           such as the mile loop trail.

                       0   Construct Mill. Road/Mousam River Access Site.

                       0   Construct West Kennebunk Riverpark.

                       0   Acquire remaining easements for completion of
                           greenway path; construct additional access sites
                           as appropriate.

                       MAINTENANCE

                       Maintenance of greenway parks and public access points
                       should be undertaken by the Kennebunk Parks and
                       Recreation Department. Maintenance of the river pathway
                       could be organized and underaken by volunteer groups,
                       perhaps local Boy Scout and Girl Scout troops. Trail
                       maintenance should include routine inspections of the trail
              81       and the maintenance of the trail surface and trail signage.









                        LEGAL ASPECTS OF THE PLAN
                        (prepared for the Kennebunk Conservation Commission
                        by Robert Furbish, Town Attorney, July 16, 1990)
                        You have asked for some general legal opinions regarding
                        the proposed Mousam River Greenway Plan which calls
                        for the establishment of a recreational footpath along the
                        Mousam. River over land currently owned by private
                        persons. You have indicated two areas of concern: 1.
                        Creation by the Town of the pathway and the means
                        which are to be employed to convey an interest in the land
                        to the Town for recreational purposes; and 2. The legal
                        liability of owners of land over which the pathway will be
                        located and of the Town arising out of its maintenance and
                        operation of the pathway. The opinions expressed in this
                        letter are intended for the guidance of the Town only.
                        Land owners who are contemplating transferring an
                        interest in the land to the Town for the purposes of the
                        Greenway Plan should be advised to seek the opinions of
                        their own counsel.

                        I. CREATION OF THE PATHWAY

                        There are several legal means of creating a pathway such
                        as is contemplated by the Greenway Plan. There are three
                        essential ways of doing so: transfer of an easement;
                        transfer of a fee simple interest; and dedication and
                        acceptance.
                        An easement is simply a right to pass over land of another
                        or to use that land for certain specified purposes. An
                        easement is an interest in land that can be created by deed
                        or by eminent domain taking (although I understand the
                        Town does not wish to consider the latter alternative).
                        Easements of various types can also arise by operation of
                        the law, i.e., without the need for an express creation, but
                        such easements are not within the scope of this letter.
                        Disputes between landowners of holders of express
                        easement over their land typically involve whether the use
                        of the easement exceeds the scope of that granted. Thus,
                        an easement should be created by language which, as
                        specifically as possible, sets forth the purposes for which
                        the pathway may be used and the activities which will be
                        conducted on it. For example, the plan to ban motorized          82










                        vehicles from the pathway should be translated into the
                        easement language itself so that the easement is specifically
                        limited to pedestrian traffic. It should be noted that the
                        owner of the land comprising an easement retains the right
                        to use the land for any purpose not inconsistent with the
                        easement. Thus, presumably the landowners would retain
                        the right to cross over the easement from one portion of
                        their land to another.

                        The second interest which the Town could acquire is a fee
                        interest in the land. This would be no different from a
                        transfer of a lot of land by one owner to another, and
                        would give the Town full right of control over the land
                        deeded. This gives the Town greater control and
                        eliminates any possibility of disputes regarding scope of the
                        use permitted within the pathway; however, there are
                        certain aspects to the fee ownership which may be
                        troublesome. First, the land comprising the path might in
                        many cases divide one portion of the private landowners
                        land from another requiring that the deed retain easements
                        in the property owner over the path. This is not a
                        tremendous obstacle but is obviously somewhat more
                        cumbersome than the granting of an easement rather than a
                        fee to the Town for the pathway. Also, the interest is more
                        costly than an easement. The above may not be serious
                        obstacles; however, at this point, I do not see why an
                        easement interest to the Town would not serve all the
                        purposes that a fee interest would serve. The difference
                        seems to be somewhat analogous to the difference between
                        a Town way in which the Town owns the fee interest in the
                        described roadway as against a Town way in which the
                        Town owns a right-of-way or easement and the abutting
                        landowners continue to own to the centerline. One is no
                        less serviceable as a Town way than the other. The only
                        time the difference becomes important is when the Town
                        way is abandoned and questions of the ownership under the
                        former Town way arise. Obviously, with regard to the
                        pathway, buildings should be located on land owned by the
                        Town and fee.

                        Whether a fee simple interest or an easement is used, a
                        description of the pathway by metes and bounds should be
                        set forth in the instrument creating the pathway. As we
               83       have discussed, this may require a survey. The third









                      method of creating in the public an interest in land is
                      dedication and acceptance. This does not require a deed
                      and, in fact, does not even require a written instrument.
                      It requires an offer of the land to the municipality for use
                      by the public and an acceptance by the municipality of the
                      land for that purpose. This results in the described land
                      being held in trust for use by the public. Dedication and
                      .acceptance is most commonly used in the creation of
                      public parks and the like. I would not advise this method
                      of creating the pathway be used unless the pathway is
                      described by metes and bounds. Therefore, dedication
                      and acceptance, while not requiring a deed, should not be
                      viewed as a means of avoiding a specific description of
                      the pathway, which should be developed in any event.

                      II. LIABILITY ISSUES

                      I have reviewed "A Guide to the Liability of Maine Land
                      Owners Providing Public Access" prepared for the Maine
                      Coastal Program, Department of Economic and
                      Community Development dated June 7, 1988 which you
                      forwarded to me. This document is a detailed legal
                      analysis of liability issues for private landowners and
                      governmental entities maintaining recreational land and
                      providing access to such land. The discussion contained
                      in that document is detailed and there is little that I can
                      add although I will summarize the basic principles.

                      A. LIABILITY OF PRIVATE LANDOWNERS

                      As noted in the Guide, the Legislature has extended
                      protection to private landowners who provide the public
                      with access to their land for recreational and certain
                      enumerated other purposes. 14 M.R.S.A. Section 159A.
                      This statute relieves such private landowners from the
                      obligation to maintain their property in a safe condition
                      for those whom they allow to use their land for recreation.
                       The issue of what is included in recreational activities is
                      contained in pages 19-21 of the Guide. There are three
                      exceptions, i.e., situations in which a landowner will be
                      liable to persons on his land for recreation: 1. When the
                      landowner engages in willful or malicious failure to guard
                      or warn the user of the land against dangerous conditions.
                                                                                     84










                      Such conduct obviously goes far beyond negligence and
                      does require in the words of the Guide "a high degree of
                      malfeasance" on the part of the landowner. Secondly, a
                      landowner who charges persons to use his land for
                      recreation does not receive the protection of the statute.
                      Finally, if the landowner owes a duty of care to a person
                      on his land may be liable if that person is injured by a
                      person on the land for recreation.

                      Outside of these exceptions, the statute gives broad
                      protection to landowners who allow access to their land for
                      recreation.


                      B. LIABILITY OF MUNICEPALITIES

                      While 14 M.R.S.A. Section 159A provides protection only
                      to private persons, the Maine Tort Claims Act does provide
                      broad protection to municipalities in the ownership and
                      maintenance of recreational land. The Tort Claims Act
                      provides immunity from civil actions for damages for tort
                      claims in all but certain specified cases. None of those
                      specified grounds for suit apply to the ownership and
                      maintenance of recreational land. Moreover, the Maine
                      Tort Claims Act specifically states that notwithstanding
                      liability for negligent acts or omissions in the construction,
                      operation or maintenance of any public building, the
                      governmental entity is not liable for any claim which
                      results from the construction, ownership, maintenance or
                      use of unimproved land; and land, buildings, structures,
                      facilities or equipment designed for use primarily by the
                      public in connection with public outdoor recreation. 14
                      M.R.S.A. Section 8104-A (2) (A) (1), (3). It would seem
                      clear that the operation and maintenance of the pathway by
                      the Town is unlikely to subject the Town to any liability.

                      As pointed out in the Guide, liability of employees stands
                      on a slightly different footing from the liability of the
                      municipality. See Id. at 10 through 12. However, even
                      where liable, the employee would be protected by the
                      $10,000.00 limitation on claims.

                      As pointed out by the Guide, the Federal Civil Rights Act
                      could potentially result in liability on the part of the Town
             85       and/or its employees for violations of Constitutional Rights,









                      and potentially from gross or reckless actions which result
                      in the deprivation of such rights. However, mere
                      negligence on the part of the Town or its employees is
                      probably not under existing United States Supreme Court
                      case law sufficient to result in liability under the Civil
                      Rights Act.
                      Because of the nature of the questions asked, this letter is
                      necessarily somewhat general. I would be happy to
                      answer more specific questions as they arise.



























                                                                                       86




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                          MAP INDEX


                          Map 1:              land ownership*
                          Map 2:              land cover *                                                            I

                          Map 3:              topographic configuration

                          Map 4:              wetland areas

                          Map 5:              the river corridor

                          Map 6:              framework plan

                          Map 7:              greenway recreation plan*




                           full size maps are available for inspection at Kennebunk
                           Town Hall.













                                                                                                  88











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                                                             LAND OWNERSHIP
                                                             Source: Town of Kennebunk Municipal Tax Maps







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