High court allows Portland to take waterfront rights; jury to decide payment

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— The state’s highest court has ruled that the city can take by eminent domain the railroad track rights over property it owns on the Eastern Waterfront.

But the court battle will continue, because the Maine Supreme Judicial Court also decided Sept. 3 that the case must return to Superior Court to have a jury decide how much the city should pay the The Portland Co.

The Superior Court in September 2007 sided with The Portland Co., owned by Phineas Sprague Jr., ruling that while the city in 2005 acted properly in taking property rights over two of its parcels in the Eastern Waterfront, the taking over the parcel commonly known as the Peaks parking lot was not appropriate because there were no immediate development plans for it. The city appealed.

“We believed that (the taking) should have been found appropriate,” the city’s attorney, Kenneth Cole III of Jensen Baird Gardiner & Henry, said Tuesday. “The (high) court decided it was.”

Sprague also appealed, seeking attorney fees. That appeal was denied by the supreme court.

“The good thing for the city is, once the taking is confirmed, all the Spragues have for a dispute is the value,” Cole said.

The city claims the rights are worth about $5,000. The Portland Co. contends the value is as much as $2 million.

Michael Traister, of Murray, Plumb & Murray, represents The Portland Co.  He said Tuesday that he was still in the process of reviewing the high court’s decision.

Sprague originally sued the city in July 2005, after the city’s decision to take by eminent domain track rights owned by The Portland Co. that travelled across three city parcels. The city took the rights in order to move the Ocean Gateway parking garage project along, as well as the now defunct Riverwalk development.

Cole said that while the city will have to pay whatever a jury decides the land is worth, the court decision means the city can search for economic development opportunities for the parcel.

It could take up to a year for a trial to take place, Cole said, because of a backlog of cases in Cumberland County.

Kate Bucklin can be reached at 781-3661 ext. 106 or kbucklin@theforecaster.net