Cumberland asks court to dismiss lawsuit by Payson beach property heirs

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CUMBERLAND — The town is seeking dismissal of a lawsuit filed against it and a local land trust by the heirs to a Foreside Road beach property.

The complaint, filed Dec. 18, 2014, in Cumberland County Superior Court against the town and the Chebeague and Cumberland Land Trust, challenges the town’s proposed use of the so-called Payson property at 179 Foreside Road.

Cumberland bought part of the property Dec. 19. In the motion for dismissal it claims the heirs lack standing to bring the case, and that the case “is not ripe for consideration.”

The heirs meanwhile are seeking a meeting with the land trust, arguing that a proposed extension of a trail easement to the shore requires their consent.

Cumberland voters on Nov. 4 narrowly supported the town’s $3 million purchase of the Payson property. The Bateman Group, a development company, signed an agreement in June to buy the approximately 100-acre property from Spears Hill LLC, which represents the family of the late Marion Payson. The company completed its purchase Dec. 19, and immediately sold a portion of the property to the town.

There are three homes on the land, and Bateman plans to build another seven, as a 1997 conservation easement allows. The town’s nearly 25-acre purchase includes 2,200 feet of shoreline and a 200-foot pier; funds for the acquisition are coming from a 20-year bond, at a cost of $240,000 a year.

The Chebeague and Cumberland Land Trust, also being sued by Spears Hill, has been the Payson property’s steward for 17 years.

The town’s proposed use has divided the community, with supporters saying the acquisition will accomplish a long-time town goal to provide public waterfront access.

Opponents include Spears Hill and some residents of the adjoining Wildwood neighborhood, whose private beach abuts the land the town purchased. They have argued the Payson beach is worth less than the purchase price; that other areas of shoreline access, offering more potential for public use, can be found; that the sale proceeded too quickly and without sufficient transparency, and that recreation access at the property is not feasible.

“The primary concern that the Payson family has is … the scope of the activity that the town is planning to do on the remainder of the property,” Attorney Scott Anderson, representing the family, said last month.

In an op-ed published this week by The Forecaster, Payson’s grandchildren said their goal “is not to prevent continued or even expanded public access, but to ensure that the Town of Cumberland and the Chebeague and Cumberland Land Trust comply with the conservation restrictions imposed years ago by our grandmother.”

William Robbins, Peter Robbins, Merrill Woodworth and Jennifer Robbins said Payson “could have developed the 100-plus acre parcel for dozens of house lots, instead, she limited development to no more than 10 houses and placed a conservation easement over the entirety of the property. This limited development significantly reduced the potential real estate value. The conservation easement restricts what can be done on the property and protects its unique ecological and aesthetic attributes.”

The heirs’ lawsuit seeks “a declaratory judgment that the Town’s proposed Facility is prohibited by the Conservation Easement, that (the land trust’s) interpretation of the Conservation Easement is contrary to its terms and unlawful, that parking and road facilities are not permitted except in association with permitted residential development, and that public use of the Property is limited to the Trail Easement.”

In a Jan. 13 letter to the land trust, Anderson asked for a meeting with CCLT to discuss Bateman’s proposed extension of the trail easement. He noted that the Robbins family “own a portion of the property subject to the Easement and are the only lineal descendants of the initial Grantor who currently own any portion of the property subject to the Easement.”

The Robbinses are now the only grantors, so any change to the trail easement needs written agreement from both the family and CCLT, Anderson wrote, requesting the land trust “confirm that (it) will not take any action to extend or alter, in any way, the Trail Easement on the Property without the consent of the Robbins family.”

CCLT President Penny Asherman declined in an email Sunday to comment on Anderson’s letter.

Cumberland’s motion to dismiss the lawsuit, filed by attorneys Natalie Burns and Alyssa Tibbetts, notes that the conservation easement covers the entire 100-acre property Payson owned, and that of that, the heirs retain a 2.21-acre piece “derived from, but generally exempted from the burdens of, the Conservation Easement,” since it contains an existing home.

Because the rest was sold to Bateman, and with the town owning a piece of that balance, there are now three owners of what encompassed the Payson property, the motion states. CCLT is the sole holder of the conservation easement, and by that easement is the only entity “responsible for and entitled to generally enforce (the easement’s) terms,” according to the motion.

The family can only bring an action concerning the portion of the easement on its own, 2.21-acre parcel, and cannot bring an action concerning proposed uses on other portions of the property, including beach areas and the shoreline that are not part of (the family’s) property, the motion states.

Since the family members no longer owns the portion of the property where the town proposes to offer recreation, Cumberland argues, they lack standing to bring a claim against the town.

The motion adds that the the grantor’s only right to use the trail easement is now as part of the public.

“The Trail Easement does not limit the access to the property by successors in interest to the Grantor. In short, the Developer and the Town as successors in interest to the Grantor, have acquired all of the reserved rights set forth in the Conservation Easement, including rights of access, and CCLT maintains enforcement rights granted to it by that document,” the town argues.

The motion also states that the case is “not ripe for review,” noting that while the family claims its complaint stems from actions that have arisen from, or are related to, the conservation easement’s terms, no action has yet occurred aside from the transfer of land.

The heirs have three weeks from the filing of the town’s motion to respond, Burns said Jan. 15 in an email, after which the town will have a week to respond. The court will then decide whether there should be oral arguments, she said.

The lawsuit also argues that CCLT’s support of the town’s use “is a breach of its obligation as holder of the Conservation Easement and its obligations to the Grantors, Plaintiff, and the Payson Family,” and adds that the land trust “has failed to enforce the terms of the Conservation Easement and such failure … has caused and will continue to cause harm to Plaintiff.”

The lawsuit seeks a permanent injunction to prevent the town from consummating its proposed use.

The town has proposed retaining most public parking in a 12,000-square-foot, 25-spot, gravel lot near Foreside Road, a half mile from the beach. Eight spaces in a 400-square-foot lot closer to the beach would be designated, with parking on grass, while four handicapped spots would be available at the access road’s turnaround loop. That loop could also be a drop-off area for cars that park near Foreside Road.

A 54-tree buffer has also been proposed between the public area and Wildwood. A future bathroom facility could include a composting toilet.

The Town Council formed an Ocean Access Committee to meet with the town attorney on the conservation easement and protection of the natural qualities of the property, and ultimately to develop a facility use plan.

Alex Lear can be reached at 781-3661 ext. 113 or alear@theforecaster.net. Follow him on Twitter: @learics.

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A Maine native and Colby College graduate, Alex has been covering coastal communities since 2001, and currently handles Bath, Topsham, Cumberland, and North Yarmouth. He and his wife, Lauren, live in the Portland area, and Alex recently released his third album of original music.