Maine attorney general seeks role in Payson lawsuit against Cumberland

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CUMBERLAND — The Maine attorney general’s office hopes to help convince the state’s highest court to allow the heirs to a Foreside Road beach property to pursue their lawsuit against the town and Chebeague & Cumberland Land Trust.

The Payson property heirs recently appealed the dismissal of their Superior Court lawsuit against the town and land trust. The AG’s office agrees that the lawsuit should not have been dismissed, and wants the Maine Supreme Judicial Court to order that the case be heard.

Meanwhile, the Planning Board on Tuesday tabled a public hearing on the town’s parking and access plan for the shoreline property. The board meets again Tuesday, July 21.

On Monday night, meanwhile, the Town Council unanimously supported a use policy for the 179 Foreside Road property, as presented by the town’s Ocean Access Committee.

AG’s participation

The town purchased its portion of the property from Portland-based developer Bateman Partners. Bateman 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 property for public use and beach access. Bateman consummated its purchase Dec. 19, 2014, and immediately sold a portion of the property to the town.

The town’s purchase includes 2,200 feet of shoreline and a 200-foot pier.

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 land trust has been the Payson property’s steward for 18 years.

Justice Nancy Mills decided May 5 that the “plaintiff lacks standing to bring the claims and the claims are not fit for judicial decision,” adding that “the (town’s) 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.”

The Payson heirs’ appeal, filed May 26 in Maine Supreme Judicial Court by their attorney, Scott Anderson, says “the town has proposed to construct a public recreational facility on a portion of the real property burdened by the Conservation Easement. This project will include roads, parking lots, bathroom facilities, and other amenities.”

The heirs claim the easement prohibits such construction.

“The AG’s Office would like to provide the Law Court with its perspective on how Maine’s conservation easement statute should be interpreted and applied,” Lauren Parker, an assistant attorney general, said in an email June 12.

“We believe that the Superior Court erred in holding that the plaintiff did not have standing to bring its lawsuit against the Town and the land trust and that the matter was not ripe for adjudication,” Parker said. “If the Law Court so concludes, the plaintiff would be able to proceed with its case against the Town and the land trust in Superior Court.”

She noted that the office’s interest is “limited to the resolution of these jurisdictional questions,” and that its participation “should not be construed as taking a position on whether this conservation easement allows the uses that are proposed for the protected property.”

The AG’s office needs consent from the court to file an amicus curiae – or “friend of the court” – brief in the appeal, Parker said.

Parking, access plan

Only five Planning Board members were in attendance Tuesday, one of whom – Steve Moriarty – recused himself, since he works for a law firm representing the land trust.

The town attorney advised that four affirmative votes were needed to approve an item, which meant all four members would have to vote in favor that night.

With the town not ready to move forward, and the desire to have more Planning Board members decide the matter, the panel voted unanimously to table the item.

Applicants have the right to say they are not  ready to proceed, “and in this particular case I can’t fault the applicant, since I’ve seen the advice it was given by its attorney,” Planning Board Chairman Chris Neagle said.

The Planning Board is scheduled to hold a site walk on the property at 4:30 p.m. Wednesday, July 8.

Three homes stand on the Payson property, and Bateman is building another seven, as allowed by a 1997 conservation easement.

While work has legally been underway on Bateman’s piece of the land, a contractor working for the developer recently damaged the town’s acreage by leaving debris and heavy equipment on the property without permission. Remediation of the meadow’s grass, bush and trees is underway.

Under the town’s plan, 33 parking spots would be created in a wooded area, near the Foreside Road entrance, on a 5,600-square-foot reclaimed asphalt lot. Land would be reserved for another 11 spots, if necessary.

Existing vegetation will block the lot from sight, and the lot’s location will minimize vehicle traffic along Beach Road, which leads from Foreside Road into the property, according to a memorandum to the Planning Board from Planning Director Carla Nixon.

The property will also be gated, and hours of operation will be from dawn to dusk. The property will have no artificial lighting, nor will utility lines be brought onto the site, Nixon said.

No wetlands will be disturbed, except for a 2,350-square-foot area adjacent to the parking lot, she added.

While the 11-acre passive recreation area is open to the public, parking is limited this year to Cumberland residents.

A four-car parking area for mobility-challenged people will be closer to the water, on a mowed grass surface. A set of stairs leading down to the beach is the only new construction proposed on the site, and would help control erosion, according to Nixon.

An existing bath house would be moved from the eastern side of the property, near the shore, to the western side, out of the Resource Protection District, Nixon said. Two bathroom stalls will be placed in that building, and no sewer or subsurface waste disposal system will be on the site.

The parcel has also been found to have historical significance, triggering an archaeological investigation.

Use policy

The Ocean Access Committee has established a set of stewardship principles for the property, which the panel has dubbed the Broad Cove Reserve.

Those principles, unchanged from the committee’s presentation to the council in April, 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.

General on-site parking would be available only near the Foreside Road entrance, with handicapped parking at the turnaround, as the town proposed Tuesday. The residents-only parking restriction could continue in future years, committee Chairman Denny Gallaudet has said.

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

Prohibited uses include discharge of firearms, 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, are also banned.

Concerning the dog-walking ban, Gallaudet has noted “all that watershed is rolling right downhill into Broad Cove. So any runoff is going to hit that very sensitive ecosystem immediately. And it doesn’t take very much in the way of animal waste to cause a problem.”

“This management plan is a living document, and will change,” Gallaudet said Monday, noting that the Town Council is charged with coming up with annual recommendations and updates based on what the town learns about the property’s use.

Alex Lear can be reached at 781-3661 ext. 113 or 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.