HARPSWELL — Although the Maine Supreme Judicial Court succeeded in eliminating an easement on the privately owned road to Cedar Beach, the decision did not eliminate the campaign for public access.
At a recent Board of Selectmen meeting, supporters of pedestrian access to the popular Bailey Island beach proposed the town start down the path of seizing the beach’s only access road by eminent domain.
Representatives from the Cedar Beach/Cedar Island Supporters asked the board on Oct. 13 to authorize an appraisal of the access road to initiate the process. Depending on the valuation, selectmen could then decide whether to put eminent domain to a vote at Town Meeting next March.
Selectmen are scheduled to meet in executive session to discuss the matter with the town’s attorney Friday, Oct. 21.
The group’s proposed tactics were met with resistance by two of the three selectmen, both of whom thought the action could endanger access now allowed to the beach.
As part of their request, CB/CIS Board member Tom Brudzinski and Secretary Martin Eisenstein asked the town to contribute $50,000 to the cost of acquiring and purchasing the road.
“So what we are asking for,” Eisenstein explained, “is that the town commission an appraiser (to set a value for the road) and report back to the Board of Selectmen so they can make an informed judgment as to whether they can proceed by eminent domain.”
He appealed to the uncertainty over future access: with the only road under private ownership, the owner could block the road at a moment’s notice with no explanation or town recourse.
According to legal information provided by Eisenstein, who is also an attorney, a town can take property by eminent domain under three conditions: if municipal officers decide the property requires an immediate taking, if the town is unable to purchase the property at what municipal officers “deem reasonable valuation,” or if the title is defective.
Town Administrator Kristi Eiane said that based on her experience, eminent seizures are uncommon in Harpswell. Speaking generally, she said that there is “usually a sense of reluctance” to begin the process, given its adversarial nature.
At the 2015 Town Meeting, the public voted to appropriate $110,000 to a reserve fund “for the purpose of defense and acquisition of interests in real property held or to be held by the Town or the public in the area of Cedar Beach, Cedar Island, and Small Beach on Merry’s Cove, including public access thereto,” as recorded in a warrant item in the town’s 2014 annual report.
The item further authorized the Board of Selectmen to reimburse CB/CIS for costs “in connection with the defense, acquisition or confirmation of such interests, and for the Town to acquire such interests on terms and conditions that the Board of Selectmen deems to be in the best interests of the Town.”
CB/CIS also provided Selectmen with a letter showing the road’s owner, Betsy Atkins, purchased the road for about $95,000 on July 18, 2014, from the previous owner.
Eiane said the town has so far paid Brann & Isaacson, CB/CIS’s lawyers, $68,000 for legal fees. Any remaining balance as of Dec. 31 will be transferred to the town’s general fund.
Brudzinski and Eisenstein wrote in their letter to selectmen that the balance could go toward the purchase of the entire road or a portion of the road. In the case of the latter, they informed the board that owner Betsy Parks has agreed to create an easement along a portion of the access road adjacent to her property.
While the group’s proposal drew the support of a packed room, it left the board divided.
“As far as I’m concerned, I won’t budge on this until someone shows me why it’s important to spend money now. The road is open,” Selectman Elinor Multer said, referring to Atkins’ decision to allow public use of the road despite the court’s action on the easement.
“It’s just spending money before there’s any occasion that it’s necessary,” she said.
Multer also expressed concern about damaging the town’s relationship with Atkins.
“My guess is, the owner of the road will close it the minute an eminent domain is made,” she speculated.
Multer said Atkins was unable to attend the meeting, but was aware of the agenda.
Chairman Rick Daniel agreed with Multer, stating that the appraisal would be “putting the cart before the horse.”
“I’m expressing to you, and you can all take it as you wish, that the (road) is open and we are working with the property owner to keep it open for everyone’s use,” Daniel said, after having to restate his position several times. “Eminent domain may be exactly what is needed should it ever be closed, but I don’t understand why you want to do it now.”
Selectman Kevin Johnson was the only member of the board who supported the appraisal.
“I see no problem going ahead with the appraisal, see what were up against, and make (Atkins) an offer,” he said. Initiating a conversation with Atkins prior to an appraisal, as Daniel suggested, would be akin to going into the conversation blind.
Tom Bailey, who is not a Maine resident, but owns property on Bailey Island, agreed.
“I feel what you’re doing is refusing to gather information,” he said. He called eminent domain a “heavy move,” but that appraising the property makes sense.
“I’ve been in construction all my life and I like to know what the hell I’m buying,” he added.
But Daniel held fast against Johnson and public support of the appraisal, at one point asking members of the public to put themselves in Atkins’ shoes.
“Why would you not want me to speak with any one of you first before a town serves action like this, and starts down this road?” he said.
“That’s not the town I want coming at my door,” he added, responding to a member of the public who characterized Atkins’ control of the road as adversarial, and that the town should act in kind.
In an email sent Tuesday, Daniel said he is in the process of scheduling a meeting with Atkins, who is traveling out of state, for some time after Oct. 28. He reported that while the two plan to speak at greater length in person, Atkins reaffirmed that she has no intention of closing the road in the foreseeable future.
The Maine Supreme Judicial Court struck down an easement on the only access road to Cedar Beach in July, but efforts to secure the road for public use – this time, through seizure by eminent domain – resurfaced this month in Harpswell.