Bayberry Cove Children's Land Trust v. Town of Steuben
| Decision Date | 27 February 2018 |
| Docket Number | Docket: Was–17–258 |
| Citation | 180 A.3d 119 |
| Parties | BAYBERRY COVE CHILDREN'S LAND TRUST v. TOWN OF STEUBEN et al. |
| Court | Maine Supreme Court |
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.
[¶ 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.
[¶ 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 ().
[¶ 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 1944[.]" 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.1. The Selectmen also directed that $1,020.60 would be paid to the Trust as just compensation for the taking. The Certificate of Taking, Affidavit of Title, and Order of Condemnation were timely filed and recorded with the Washington County Registry of Deeds. See 23 M.R.S. § 3024 (2017).
[¶ 7] Pursuant to M.R. Civ. P. 80B, the Trust filed a complaint, subsequently amended, in the Superior Court, alleging that the Town's taking of an interest in the road was unconstitutional. The court affirmed the Town's decision, and the Trust timely appealed to us.4 See 23 M.R.S. § 3029 (2017) ; M.R. Civ. P. 80B(n) ; M.R. App. P. 2(b)(3) (Tower 2016).5
[¶ 8] The Maine Constitution provides, "Private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it." Me. Const. art. 1, § 21 ; see also U.S. Const. amend V (). Therefore, in order to "avoid a constitutional violation, the establishment of any road or way [by eminent domain] ... must be for a public use and its requirement must be in response to public exigencies." Brown v. Warchalowski , 471 A.2d 1026, 1029 (Me. 1984) ; see also 23 M.R.S. § 3023. The Trust challenges the Town's determinations that the taking was supported by a public exigency and that the use of the road is public. We address the Trust's challenges in turn.
[¶ 9] In addressing a challenge to a public taking, we review directly the municipality's decision for a rational basis to support the finding of public exigency. See Portland Co. , 2009 ME 98, ¶ 25, 979 A.2d 1279. Three subsidiary findings are necessary to support a finding of a public exigency: "the taking was necessary; the property interest was taken only to the extent necessary; and the property is suitable for the particular public use for which it was taken." Id.
[¶ 10] Regarding the first of these elements that bear on the existence of a public exigency, we engage in only a limited review of a municipality's determination that a taking is necessary; we look to whether the taking " ‘was made in bad faith or through an abuse of power.’ " Dyer v. Dep't of Transp. , 2008 ME 106, ¶ 19, 951 A.2d 821 (quoting Finks v. Maine State Highway Comm'n , 328 A.2d 791, 797 (Me. 1974) ). "An abuse of power occurs when the agency uses its power in an extravagant manner, employs it contrary to the law of its use, or uses it improperly and to excess." Dyer , 2008 ME 106, ¶ 19, 951 A.2d 821.
[¶ 11] Here, the Town initiated the eminent domain process in response to legal challenges commenced by the Trust concerning the use and ownership of the road. Additionally, the road's physical location had changed from the boundaries as laid out in 1825 because of the 1887 extension and the 1944 wash-out. The resulting deviation between the record boundaries and a small portion of the physical location of the traveled area of the road was revealed by the 2013 survey. These circumstances reasonably prompted the Town to lay out new boundaries for a relatively small portion of the road. As a result of the historical changes affecting the road, and consistent with a municipality's authorization to take property for "highway purposes," which includes the "alignment" of town ways, see 23 M.R.S. § 3021(1) (2017), the Town decided to align the road's record boundaries with its actual location on the face of the earth.
[¶ 12] Also, prior to the taking, the Town issued a public notice of a town meeting to address two articles related to the road. At the public meeting, residents overwhelmingly approved the proposed article that authorized Town officials to take an interest in the land consisting of the traveled part of the road that was outside of the road's record description.
[¶ 13] Therefore, the reasons for the taking and the governmental process that led to it demonstrate that the Town neither acted in bad faith nor abused its power in making the necessity determination.
[¶ 14] Second, the Trust has not made any argument that the taking exceeded what was necessary to align the record description of the road with the road's physical location, as is shown by the record description of the taking being confined to the traveled area of the road. As stated in the Order of Condemnation, the existing road "strays outside the bounds of the right of way as laid out by the Town in 1825, 1887 and 1944[.]" This assertion is supported by the historical documents from 1825, 1887, and 1945, and by the boundary surveys conducted in 2013 and 2016. Therefore, the taking satisfied the second element of the public exigency analysis because the Town took an interest in only that portion of the Trust's property—approximately 2,470 square feet—that was needed to accomplish the purpose of the taking. See 23 M.R.S. § 3021(1).
[¶ 15] Third and finally, the record demonstrates that the property at issue is suitable for current use as a public way, as shown by evidence demonstrating that the road was established as a public town way and remains a town way used by the public today.
[¶ 16] Because the record supports each element of the public exigency framework, there is a rational basis in the record to support the Town's finding of a public exigency. See Portland Co. , 2009 ME 98, ¶ 25, 979 A.2d 1279. We now turn to the second question, namely, whether the taking is also supported by the Town's determination that the taking is for a public use.
[¶ 17] Appellate review of a taking of private property for public use presents a mixed question of law and fact. We consider "de novo the...
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