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Bayberry Cove Childrens Land Trust v. Town of Steuben

Supreme Court of Maine

February 27, 2018

BAYBERRY COVE CHILDRENS LAND TRUST
v.
TOWN OF STEUBEN et al.[1]

          Argued: December 14, 2017

         Washington County Superior Court docket number AP-2016-7

          Eric N. Columber, Esq. (orally), Acadia Law Group, LLC, Ellsworth, for appellant Bayberry Cove Children's Land Trust

          Mark A. Bower, Esq. (orally), Jensen Baird Gardner & Henry, Portland, for appellee Town of Steuben

          Diane S. O'Connell, Esq., Patterson & O'Connell, LLC, Ellsworth, for appellees Leon F. Sherwood and Jane B. Sherwood

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          HJELM, J.

         [¶1] Bayberry Cove Children's Land Trust appeals from a judgment of the Superior Court (Washington County, Stewart, J.) affirming the Town of Steuben's taking of an interest in Rogers Point Road by eminent domain pursuant to 23 M.R.S. § 3023 (2017).[2] Contrary to the Trust's contentions, the taking is constitutional because it arose from a public exigency and is for public use. We therefore affirm the judgment.

         I. BACKGROUND

         [¶2] The following facts are undisputed and are taken from the administrative record, see Portland Co. v. City of Portland, 2009 ME 98, ¶ 25, 979 A.2d 1279 (stating that in an eminent domain proceeding, we review a municipality's decision directly).

         [¶3] The road at issue, Rogers Point Road, also known as Wharfs Road, is located in the Town of Steuben. A portion of the road's present location is on or within land owned in fee simple by the Trust. The history of the road dates back to the nineteenth century. In 1825, the Town accepted the road, which then was 770 rods long and three rods wide. Sixty years later, in 1885, the Town issued a notice that the municipal officers intended to extend the road, and in 1887, the road was extended by approximately 262 rods for the "use of said town" and ended "at the Island." As with the original part of the road, the extension was three rods wide. In 1944, a portion of the road was washed out, prompting the Town, the following year, to lay out a new section of the road, in order to bypass the damaged portion, from "a point in the center of the old road ... to the bar that goes to [the] Island, " a distance of "800 feet long and 20 feet wide."

         [¶4] In 2013, the Town commissioned a survey of the road's boundaries. The survey revealed that "a small portion of the existing traveled way for Rogers Point Road stray[ed] outside the bounds of the right of way as laid out by the Town in 1825, 1887 and l944[.]" In 2015, the Trust filed a declaratory judgment action against the Town to establish the legal status, including title, to the portion of the road laid out on its property.

         [¶5] In April of 2016, while the declaratory judgment action was pending, the Town issued a warrant for a special town meeting that presented, in relevant part, two alternative articles for the Town's residents' consideration. One article would authorize the Town to settle the declaratory judgment action by discontinuing the road in exchange for $150, 000 to be paid by the Trust. The second article would authorize a taking of an interest in the road by eminent domain, pursuant to 23 M.R.S. § 3023, [3] "in order to confirm that the boundaries of the Town's right-of-way for that town way are coincident with the existing traveled way, " which terminates at the end of a point of land that is surrounded by a saltwater bay.

         [¶6] At the resulting town meeting held in May of 2016, voters rejected the settlement option and instead authorized the Town to take, by eminent domain, the traveled part of the road. Having been given the voters' approval, in August of 2016 the Town Selectmen issued a notice of an intent to take an interest in the road by eminent domain. That same month, the Town also commissioned a second boundary survey to depict the "right of way layout" of the road. After a second public hearing, held on August 31, 2016, the Selectmen signed an Order of Condemnation, ordering the taking of an interest in approximately 4, 000 square feet of private property to "confirm" the road's boundaries, based on public exigency or, alternatively, defective title to the road. Of the total area taken by the Town, 2, 470 square feet are located on the Trust's land, and the remainder is located on an abutting parcel owned by the Sherwoods, see supra n.l. The Selectmen also directed that $1, 020.60 ...


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