Distinguished area actions generally is a “nuclear explosion,” says a law professor

BELFAST, Maine – The City of Belfast is nearing the application of major domain laws to achieve easement over a controversial mudflat, a move that would ensure a Norwegian aquaculture company needed access to Penobscot Bay.

It would also benefit Belfast, city officials said earlier this week.

However, that doesn’t mean the strategy is necessarily straight forward or guaranteed progress, according to Jeff Thaler, professor at the University of Maine School of Law. Thaler recently said the Significant Domains Act was much more complicated than its brief mention in the Maine Constitution suggests.

Article I, Section 21 states only: “Private property must not be used for public purposes without just compensation; nor unless the public needs require it. ”

But the constitution’s relative brevity in one important area is offset by the need to carefully interpret each word, Thaler said. The Maine Supreme Court interpreted the term “public use” as a restriction on the power to acquire private property through takeover or a significant domain, he said. This means that property must be accessible to the general public – not just individuals.

“The court has previously interpreted this in such a way that the use of an outstanding domain authorization for things like the correction of incorrect batches or private title defects does not count,” said Thaler. “It is entirely possible that [those with claims] would sue the city of Belfast for this [would] essentially extinguish all theoretical rights to which they are entitled in the intertidal zone for the purpose of public use. I don’t know how the court would judge that. ”

City officials said securing easement would allow Belfast to take advantage of the benefits outlined in a 2018 agreement between the City of Belfast, Nordic Aquafarms and the Belfast Water District. These benefits – described earlier this week by City Attorney Bill Kelly – include the provision of recreational land, including the popular Little River Trail, and the water district with sufficient guaranteed revenue to replace aging infrastructure and a new well online put. City officials also believe the Belfast Salmon Farm will generate the tax revenue and new jobs it needs, and will provide the city with land for a new waterfront park.

“You cannot argue against the public benefit here,” Councilor Neal Harkness said Tuesday evening during a regular council meeting.

Clearance of ownership of the disputed tidal land is one of the city’s stated goals in the major domain drive. Ownership of the Wadden Sea is currently being tried in the Waldo County Superior Court – a case seen as critical to the establishment of the proposed $ 500 million salmon farm on land.

But recently Richard and Janet Eckrote, who years ago had sold an easement to cross the tidal flats to Nordic Aquafarms, sold their entire property to the company. Nordic Aquafarms donated the 2.73-acre waterfront property to the City of Belfast in exchange for a permanent easement that allows the company to move its inflow and outflow pipes to Penobscot Bay.

The City of Belfast attempted to acquire the claims on the mudflats by hiring an appraiser to determine their value and then sending offers to anyone who could claim an interest. Since efforts to obtain bids have failed in good faith, the city can now pursue a significant domain on the property.

As with many aspects of the planned salmon farm, the measure was deeply controversial. Councilor Mike Hurley said during a council meeting Tuesday that he and other councilors had been severely criticized for their actions on the fish farm and even lost friends.

“Why am I ready to endure this? Why am I ready for people to hate me? ”He said. “Because it’s for the good of Belfast. For myself, there is nothing I would rather do than say, ‘There is no good reason to do this. It doesn’t help Belfast. ‘ But I think it’s incredibly important for the future of the city. ”

In addition to what the constitution provides, Maine law contains some additional restrictions on significant domain authority. In 2005, the state passed a law stating that land used for agriculture, fishing or forestry, or land that has been upgraded with houses or other structures, cannot be used for industrial and other types of development. Nor can it primarily serve to increase tax revenue.

“I don’t see anyone applying here. This intertidal zone is not used for agriculture or fishing, ”said Thaler. “The opponents could refer to it in a complaint. You could challenge what the city and the Nordic Aquafarms are doing. ”

In fact, opponents have indicated they will sue the city as a result of the major domain lawsuit.

Belfast was required by law to provide fair compensation to those with alleged claims in the intertidal zone in question before the property was opened to public use. However, the professor said that such offers do not need to be accepted and there may be more lawsuits related to the eminent domain lawsuit.

“I think you will continue to see litigation,” Thaler said. “I think this is a creative step from both the city and Nordic Aquafarms to address the situation. I don’t think it will get you there any faster. ”

In Maine, Eminent Domain is not widely used. A 2005 survey by the Maine City Association found that more than 96 percent of responding communities had not used or attempted to use significant domains in the past five years. Of the communities that did this, road projects were the dominant cause.

A high profile case in Maine, unrelated to a street project, occurred in Bangor in the mid-1990s when the city acquired several lots on Main Street to clear the area for Shaw’s Supermarket.

The city commissioned an appraiser to assess the properties and then submitted offers to the property owners. Two agreed to the sale, the other three filed lawsuits against the City of Bangor. One of these landowners finally came to an agreement with the city. But the other two – the owners of the former Brownie’s Market and the former Perry’s Restaurant – went to court over the appraised value of their properties.

One of the lawsuits was only resolved in 1997, two years after the city acquired the property for redevelopment.

Belfast is one of the few communities with outstanding domain experience. In 2016, when city officials argued with the owner of Penobscot McCrum over their strong desire to traverse the company’s waterfront property to connect the newly built Belfast Rail Trail to Belfast Harbor Walk and the city center.

City officials have negotiated with owner Jay McCrum for years, but those efforts have not been successful. The city offered McCrum $ 55,000 for a four-meter-wide easement to cross the property, but he did not respond within the deadline. Thereafter, the city councils unanimously agreed to use a significant domain to obtain a recreational easement on the property. Not long after, McCrum had an obvious change of heart and offered to build a path through his property and lease it to the city. The city agreed and signed a lease with McCrum, and the trail has been widespread since then.

That type of business is a much more popular avenue than a major domain, Thaler said. Therefore, the constitution puts limits on its use and is used sparingly, he said.

“The lawmakers represent the people, and these people will complain if they think the government is overstretching and exaggerating its service to the citizens,” he said. “That is why eminent domain is not used often.”

It is preferred that the government agency obtain an appraisal and buy the land in a friendly transaction, he said.

“That is by far the preferred approach,” said Thaler. “The eminent domain is the atomic explosion, the last step in court. That is why so many of these cases end up in court. ”