Judge denies attempt to block Cumberland beach acquisition

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CUMBERLAND — A Maine Superior Court judge has dismissed a lawsuit filed against the town and a local land trust by the heirs to a Foreside Road beach property.

“The plaintiff lacks standing to bring the claims and the claims are not fit for judicial decision,” Justice Nancy Mills wrote in her May 5 decision.

This week, the town said the developer that sold it the land had damaged the town’s acreage by leaving debris and heavy equipment on the property without permission.

Bateman Partners, the Portland-based development company, signed an agreement last June to buy the approximately 100-acre property from Spears Hill LLC, which represents the family of the late Marion Payson.

Cumberland voters on Nov. 4, 2014, narrowly approved the town’s $3 million purchase of a portion of the 179 Foreside Road property for public use and beach access. Bateman completed its purchase Dec. 19, 2014, and immediately sold a portion of the property to the town.

The Payson heirs’ complaint, filed Dec. 18, 2014, in Cumberland County Superior Court in Portland, challenged the town’s proposed use of the property. The Chebeague and Cumberland Land Trust, also being sued by Spears Hill, has been the Payson property’s steward for 17 years.

“This is a huge win for the town and the Land Trust,” Town Manager Bill Shane said in a May 8 email, in response to the decision. “Now we can begin to deal with parking areas and other big items that our Ocean Access Committee has put on hold pending the judge’s opinion.”

He said the town will continue to abide by the terms of a conservation easement as it develops parking on the site.

CCLT President Penny Asherman said in an email May 8 that “Justice Mills’ decision means that CCLT can now focus all of our efforts regarding the property on ensuring that resources on this magnificent property are protected for generations to come, a responsibility that we will continue to pursue with the utmost fervor and diligence.”

Scott Anderson, attorney for the Payson heirs, said in an email May 8 that “the family is very disappointed with the decision and is concerned about the impact of the decision on the Payson land as well as other conservation easements in Maine. The decision is particularly concerning given the massive mechanized tree clearing that is currently being conducted by (Bateman Partners) in clear violation of the conservation easement.

“We are shocked and saddened that CCLT has concluded this clearing is consistent with the purpose of the conservation easement,” he added. “We continue to believe that CCLT is failing to enforce the easement and if the judge’s decision stands there will be no way to hold the land trust accountable for its mismanagement of this property.”

The heirs have three weeks to appeal the Superior Court decision to the Maine Supreme Court.

Nathan Bateman of Bateman Partners said in an email May 7 that the developers had been “cutting the approved building windows and viewsheds” for the past four weeks, and that “all cutting has been approved by CCLT and the state forester.”

But on May 8, Shane said he found brush and construction equipment covering the entire parcel. He advised Bateman of the violation on Monday.

“Excavators, bulldozers, front-end loaders, screening equipment and miscellaneous equipment had taken over the entire site,” the manager wrote. “While I was assured by your contractor the site would be restored to better than original, no permission from the town was requested or received for this operation.”

The town would have denied the request, if one had been submitted, since “this was part of our early park walking loop with only a mower cut needed to get it ready,” Shane continued. “Now it will require revegetation on the majority of the site and it may take several growing cycles before it recovers fully. Further, this unauthorized work constitutes a trespass on the town’s land.”

Shane gave Bateman until May 21 to restore the town’s portion of the property to its satisfaction, and required the developer to submit a weekly construction schedule to the town’s engineer.

“This is not how I had hoped the project would get started,” Shane wrote. “I truly hope this will be an isolated incident and restoration to the town’s property will begin immediately.”

Bateman said Monday that he was unaware of the matter until two days earlier, and that the town parcel would be clear by the next night and restored.

“The site work contractor made a mistake,” Bateman said, promising that his company would be monitoring further work much more closely. “We are respectful and responsible developers, and I can assure we will continue to live to the letter of the law. This … non-communication will not happen in the future.”

Asherman said in an email Tuesday that CCLT will require Bateman “to remediate areas adversely impacted by some of the activity including; restoration of the lower meadow owned by the Town of Cumberland, replanting of some trees on the mansion’s lot, and an assessment of the impact to nearby archeological sites. 

“CCLT is also requiring the developer to educate all of their subcontractors about the terms of the conservation easement prior to any additional work on the site so that the remaining work is conducted in compliance with the easement,” Asherman added.

In its January motion for dismissal of the lawsuit, the town claimed the heirs lacked standing to bring the case, and that the case “is not ripe for consideration.”

Mills agreed, stating in her 10-page decision that “the proposal has not yet been finalized and it is unclear whether, and in what form, (the land trust) will approve the project. There is also no hardship to the plaintiff at this time because the project has not yet adversely impacted plaintiff’s property.”

There are three homes on the land, and Bateman is building another seven, as allowed by the 1997 conservation easement. 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.

An Ocean Access Committee – which has given the property a working name: the Broad Cove Reserve – has established a set of stewardship principles, which include encouraging citizens to passively recreate within the preserve’s boundaries, and limiting use of vehicles and bicycles to Beach Road (leading from Foreside Road to the beach) and its turnaround area.

The OAC has called for general on-site parking to be available only near the Foreside Road entrance, with handicapped parking at the turnaround. Parking will be limited this year, and so the committee proposes to restrict it to Cumberland residents only, a measure that could continue in future years.

Allowed uses would include hiking, walking, some swimming, boating, fishing, shellfishing, picnicking, educational activities, cross-country skiing, and snowshoeing.

Prohibited uses would include hunting, open fires, fireworks, walking dogs, littering or disposal of trash, and construction or improvements without approval from the committee. Cutting or removal of trees, vegetation or brush, and use of herbicides, fungicides or pesticides without the committee’s approval, would also be banned.

“The site is now under construction for the subdivision portion of the project, which received all Land Trust and town approvals,” Shane said. “I expect that work by Bateman will last will into the summer, making vehicle access to the site difficult. We will monitor the progress and the OAC will be recommending to the Town Council when they believe the site will be ready for public access.”

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

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.