Payson heirs appeal dismissal of Cumberland property lawsuit

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CUMBERLAND — The heirs to a Foreside Road beach property are appealing the dismissal of their Superior Court lawsuit against the town and a local land trust.

The town purchased its portion of the property from a developer, Bateman Partners. While work has legally been underway on the developer’s piece of the land, a contractor working for Bateman recently damaged the town’s acreage by leaving debris and heavy equipment on the property without permission. Remediation of that parcel is underway.

Bateman, based in Portland, 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 consummated 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 18 years.

But Justice Nancy Mills decided May 5 that the “plaintiff lacks standing to bring the claims and the claims are not fit for judicial decision.” She said “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 town is scheduled to go before the Planning Board Tuesday, June 16, for site plan review of a parking and access plan for the property. Under the plan, 33 parking spots would be created near Foreside Road, while land would be reserved for another 11, if necessary.

The town intends to proceed with that review, Town Manager Bill Shane said Monday.

The Payson heirs’ appeal, filed in the Maine Supreme Judicial Court May 26 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.

Shane said the appeal by the heirs “is just more money that’s unnecessarily spent on defending a position (on) which I think we’ve been clear and we’ve been consistent from the beginning.”

The town’s attorneys will respond to the appeal, he added.

“It could take another year, and a lot more money, to continue, just on the legal side of things,” Shane said.

Damage to town land

“The family decided to appeal because they are very concerned that the land trust has engaged in a pattern of ignoring the restrictions in the conservation easement,” Anderson said in an email Monday. “Both the land trust’s blessing of the town’s recreational facility and the recent approved mechanized clearing by the developer show that the land trust is not able or willing to enforce the conservation easement.

“If the Superior Court decision stands, and is not reversed on appeal, the land trust’s irresponsible behavior may continue unchecked,” the attorney added. “This is a case about ensuring that land trusts will be accountable for their actions.  Otherwise landowners will be far less likely to set aside land for conservation.”

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.

Shane said Monday that the town received calls as far back as early April about the tree-cutting.

“We went out, and basically the cutting was … on the house lot side” of Bateman’s property, as the town had approved, the manager said.

Late in the month, cutting started near the border of Bateman’s property and a field on the parcel the town had purchased, Shane said.

“The cutter was given permission to go in and … cut in that area,” he noted. “It was all flagged, it was all inspected,” he noted, adding that material was laid down on the borderline, or “barely on town property.”

However, extensive work took place on May 7-8, and Shane said he found brush and construction equipment covering the town’s field.

“Excavators, bulldozers, front-end loaders, screening equipment and miscellaneous equipment had taken over the entire site,” the manager wrote in a notice of violation to Bateman. “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 parcel would now “require revegetation on the majority of the site and it may take several growing cycles before it recovers fully,” Shane added. “Further, this unauthorized work constitutes a trespass on the town’s land.”

Bateman was given until May 21 to restore the town’s portion of the property, and is now required to submit a weekly construction schedule to the town’s engineer.

Bateman said he was unaware of the matter until May 9, and that the town parcel would be clear by the next night and restored. He promised his company would monitor further work much more closely.

Shane said May 20 that the area had been loamed, seeded and mulched. A planting plan calls for additional shrubs, trees and grasses to be planted this month.

“It may take a year or two,” with a couple of growing seasons, for the grass to look as it had, Shane said, noting that the bushes and trees would take longer.

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.