Payson family sues Cumberland and land trust, as town acquires beach property

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CUMBERLAND — The heirs to a Foreside Road beach property filed a lawsuit Dec. 18 against the town and a local land trust, one day before the town and a developer completed the purchases of their portions of the approximately 100-acre parcel.

Cumberland voters on Nov. 4 narrowly supported the town’s $3 million purchase of the Payson property at 179 Foreside Road. The lawsuit, filed in Cumberland County Superior Court, challenges the town’s purchase.

Town Manager Bill Shane said Monday that he had expected legal action.

“Maybe it’s the best thing,” Shane added. “Maybe it’s time for a judge to decide yea or nay.”

“I think there is still a misunderstanding of the abilities of what owners can do on the property,” Shane continued. He said the town’s use will respect the land’s 1997 conservation easement, “and be an awesome asset for community access to the shore.”

The Bateman Group, a development company, signed an agreement in June to buy the property from Spears Hill LLC, which represents the family of the late Marion Payson. The company completed its purchase Friday, 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 allowed by a 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.

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

“CCLT has just received the legal papers and is most disappointed with this action, especially after years of conscientious stewardship of the Payson easement and intensive efforts to meet the highest standards of protecting this special property during the transition of the owners’ sale to the developer and the subsequent sale to the Town of Cumberland,” CCLT President Penny Asherman said Monday via email.

Shane said he feels badly for the trust ” because as protectors of the conservation easement, they are truly the ones that are always going to be in the middle. That makes it difficult for them.”

The town’s proposed use has divided the community.

Supporters have said 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, with 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.

Attorney Scott Anderson, representing Spears Hill, said Dec. 11 that Bateman’s planned development is “clearly permitted” under the easement granted to the land trust.

“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,” Anderson said.

The lawsuit, with Payson family member Merrill Woodworth as plaintiff, seeks “a declaratory judgment that the Town’s proposed Facility is prohibited by the Conservation Easement, that CCLT’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.”

The suit argues that the 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.

Committee Chairman Denny Gallaudet said at a Planning Board meeting Dec. 16 that “we really wish to honor this remarkable property by minimizing the human impact to the extent possible, but still provide access.”

His group agreed by consensus to limit parking by the waterfront to two or three handicap spaces, and “the idea is to encourage non-vehicular access” as much as possible, he said.

Public input would be included in the facilities use plan, which the Town Council and land trust would have to approve.

Asherman told the town in a Sept. 30 letter that while there are “challenges inherent in managing increased public access while maintaining other conservation values on the Payson property, the CCLT board strongly believes that expanded access to the property, which is permitted under the easement, if managed properly, can occur while still protecting the natural and scenic features of this remarkable property.”

Asherman noted that more visitors to the property will inevitably create an impact, and that the Land Trust will need to “manage, monitor and attempt to minimize the impacts of more visitors in ways that respect the natural and scenic resources.”

CCLT asked the town to look into methods of managing access, such as limiting the number of parking spaces, having limited hours of operation, and creating a resident permit system. The trust also asked, among other things, that dogs be prohibited from the beach year-round to protect water quality, birds and beach grasses, and that smoking and fireworks be banned.

Shane told the Ocean Access Committee Dec. 9 that the council, town attorney, and land trust attorneys concur with Asherman’s Sept. 30 letter, “and the voters of Cumberland supported that position by their decision at the referendum vote.”

The town attorney has reviewed the conservation easement, “and nothing has changed regarding the town’s position,” Shane added.

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.