PORTLAND — A Sept. 28 filing by the Freeport-based Island Rover Foundation changed the course of a Sept. 29 court hearing.
The intent of the hearing was to determine whether the foundation purged a June 26 finding of contempt.
The foundation’s namesake – The Island Rover – was being built in a residential Freeport zone, which was allowed until resident Harold Arndt put the project under the auspices of the nonprofit foundation in 2005. Arndt began building the immense vessel over 20 years ago.
The town and foundation had since signed off on two consent agreements, both stating the vessel’s location in the Medium Density Residential District is not in compliance with the town’s zoning ordinances.
The town took possession of the ship in September 2016 after the foundation failed to move the 113-foot metal schooner by a court-ordered date. In January, the town sought a contempt motion against the foundation.
The Maine Superior Court held hearings in April, May, and June to address the motion, which eventually produced the finding of contempt.
The June court order gave the foundation until Aug. 21 to move the Island Rover out of town or to a location deemed “conforming” with the town’s zoning ordinances.
The vessel was moved about 30 yards from its previous location on Lower Flying Point Road to private Bucknam Road, adjacent to the property. Both locations are in the same residential zone.
On Friday, Sept. 29, Freeport Code Enforcement Officer Nick Adams said that permitted uses for the zone are single-family dwelling, two-family dwelling, mobile homes, agriculture, agri-tourism activity, and timber harvesting.
The town’s position in court was that the vessel’s new location is not conforming.
According to the June 30 court order, if the foundation failed to comply with an Aug. 22 deadline, it could be fined $500 per day until the vessel was moved. Fines have not been paid because the foundation believes Bucknam Road is a conforming location.
The foundation’s stance stated in a Sept. 28 memorandum – what Justice Thomas Warren on Friday called a “difficult argument to make” – is that the vessel’s location has always been in compliance with permitted uses.
The memo asserts that “there is quite simply nothing in Town of Freeport Zoning Ordinance that prohibits an owner from building a boat (on) property he or she owns.”
The memo goes on to say that the use of the land is an “accessory use,” which is “permitted in every district” in the town’s zoning ordinance. It also said the town based the list of conforming locations on the classification of “Commercial Boat,” stating, “Unfortunately for the Town, there is no mention of “Commercial Boat” anywhere within the Zoning Ordinance and factually, this is not a commercial boat.”
Town attorney Wendy Paradis called this debate “water under the bridge,” noting that the foundation and the town had signed multiple consent agreements in 2005 and 2010 in which the foundation agreed the vessel’s location on Lower Flying Point Road was not in compliance with town ordinances.
Paradis said the purpose of Friday’s hearing was not to re-litigate closed issues, but to find whether the foundation had purged contempt by moving the vessel to Bucknam Road.
She reaffirmed the town’s stance in a letter submitted to the court on Friday saying, “The Defendant should not be permitted to re-argue the Court’s findings from past hearings … (the foundation) has failed to honor three consent agreements over thirteen years, and has failed to purge the contempt as required by the Order of June 30, 2017.”
Arndt’s attorney, Twain Braden, said that the consent agreements should not be the basis for which the trial is ruled.
“The fact that two private parties in a private settlement agreement say that it’s true doesn’t make it true,” Twain added, referencing 2005 and 2010 consent agreements.
“(The consent agreement) was a private agreement,” Twain said. “I don’t think that, by virtue of it being a private agreement, that that would suggest now that that is the law of the case. It was an admission made in a consent agreement that was not actually litigated.”
However, on Monday, Town Manager Peter Joseph said the consent agreements were litigated during another 2014 consent agreement reached in Maine Superior Court, which said the Island Rover must be moved off property on Lower Flying Point Road.
“The premise of the entire agreement was that there was a reason to move the vessel,” Justice Warren said. “Which is why the town and the foundation reached not just one, but several agreements.”
Joseph added the foundation had made the same argument earlier in this year’s hearing process, but it was dismissed by the judge.
“I wasn’t anticipating (that argument would be made on Friday),” Joseph said. “I thought it had kind of been settled … it may or may not be relevant.”
He added that, should the judge chose to consider the foundation’s Sept. 28 filing, he will give the town an opportunity to respond in writing to those arguments before the judge makes his decision. Should he not choose to consider the filing, Warren will likely rule whether the foundation purged contempt.
Joseph said the town expects Warren to rule within a week or two.
The town of Freeport expects a ruling in the next two to three weeks on whether the Island Rover Foundation purged a June finding of contempt.