Khalidiv.Town of Cape Elizabeth

Superior Court of MaineFeb 18, 2019
BUSINESS & COUNSUMER DOCKET DOCKET NO. BCD-RE-18-05 (Me. Super. Feb. 18, 2019)

BUSINESS & COUNSUMER DOCKET DOCKET NO. BCD-RE-18-05 BUSINESS & COUNSUMER DOCKET DOCKET NO. BCD-RE-18-06

02-18-2019

IMAD KHALIDI, et al., Plaintiff, v. TOWN OF CAPE ELIZABETH, Defendant.


STATE OF MAINE
CUMBERLAND, ss. ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Pending before the Court are Plaintiffs' amended motion for summary judgment and Defendant Town of Cape Elizabeth's (the "Town") motion for summary judgment on the two virtually identical two-count Complaints for declaratory judgment in this consolidated matter. Oral argument was heard on January 24, 2019. Plaintiffs were represented by John Shumadine, Esq. and the Town was represented by Susan Driscoll, Esq.

FACTS

This case arises out of a dispute over the Town's right to accept what the parties refer to as the Pilot Point Section of Surf Side Avenue (the "Pilot Point Section"). Surf Side Avenue is a so-called "paper street," or proposed, unaccepted way. The Shore Acres Land Company recorded the Shore Acres subdivision plan (the "Plan") on April 10, 1911 at the Cumberland County Registry of Deeds (the "Registry"). (Pl's Supp'g S.M.F. ¶ 1; Def's Supp'g S.M.F. ¶ 1.) Depicted on the subdivision plan is "Surf Side Avenue," running in a north-easterly direction along the southern border of the subdivision; south of Surf Side Avenue is the Atlantic Ocean. (Ex. A to Pl's Supp'g S.M.F.) As depicted on the Plan, Surf Side Avenue borders lots 1-10 along its western branch and lots 44-47 along its eastern branch. It. The western branch is what the parties refer to as the "Pilot Point Section" and on the Plan appears to be the only route of access to lots 3-10. Lots 3-10 were subsequently merged with the lots to their north (lots 11-18 on the Plan) and re-labeled lots 69-74B. (Ex. C to Pl's Supp'g S.M.F.) Lots 69-74B are accessible via what is now called "Pilot Point Road." (Pl's Supp'g S.M.F. ¶ 7.) Although the Town disputes this, it seems reasonably clear that the Pilot Point Section of Surf Side Avenue was initially intended to provide the exclusive means of access to (now defunct) lots 3-10, although the intended manner of access (whether by foot or otherwise) is genuinely disputed. (Pl's Supp'g S.M.F. ¶ 4; Def's Opp'g S.M.F. ¶ 4.) The Pilot Point Section was never constructed as a roadway. (Pl's Supp'g S.M.F. ¶ 8.)

Although paper streets can be either constructed or unconstructed, the Pilot Point Section is unconstructed. (Pl's Supp'g S.M.F ¶ 8.) See Fournier v. Elliott, 2009 ME 25, ¶¶ 15, 20, 966 A.2d 410; 23 M.R.S. § 3032.

The eastern branch, referred to by the parties as the Algonquin Section, is now called Surf Side Avenue and is maintained as a private way. (Ex. C to Pl's Supp'g S.M.F.) It is not at issue in this case.

The owners of the lots through which the Pilot Point Section passes, several of whom are plaintiffs in this lawsuit, have essentially been using the Pilot Point Section as their "backyards" with minimal development consistent with what one might expect to see in a backyard. Plaintiffs Stewart Wooden and Julie Wooden own lots 67 and 68, and have placed a flagpole and installed a subgrade irrigation system in the Pilot Point Section where it crosses their lots. (Pl's Add'l S.M.F. ¶¶ 23-24.) Plaintiffs Andrew Sommer and Susan Ross own lot 69, and there is a stone walkway, brick patio, renovated open deck, bench, and maintained ground cover in the Pilot Point Section, along with a subgrade drainage system and cement tank. (Pl's Add'l S.M.F. ¶¶ 26-27.) Plaintiff Pilot Point, LLC owns lot 70, which contains a bench and maintained ground cover in the Pilot Point Section. (Pl's Add'l S.M.F. ¶ 29.) Plaintiffs David Leopold and Kara Leopold own Lot 71, which contains within the Pilot Point Section a stairway, fence, and irrigation system. (Pl's Add'l S.M.F. ¶ 31.) Plaintiff Imad Khalidi owns Lot 74, which contains within the Pilot Point Section landscaping (including gardens, trees, and mulch beds), two Adirondack chairs, granite steps, and a stone walkway. (Pl's Add'l S.M.F. ¶¶ 34-36.) The granite steps replaced an older set of steps; at one point, there was a septic tank and leach field under the Pilot Point Section where it passes through Lot 74. (Pl's Add'l S.M.F. ¶ 35.) There is also evidence of obstructions in the Pilot Point Section in Lots 72, 74A, and 74B, whose owners are not parties to this lawsuit, including: a stone wall in Lot 72; lawns, gardens, and a wrought-iron fence in Lot 74A; and fill in Lot 74B. (Pl's Add'l S.M.F. ¶¶ 33, 38, 43.) The Town does not necessarily dispute Plaintiffs' descriptions of these uses, but does point out that there are unresolved factual issues regarding when certain obstructions were placed in the Pilot Point Section and how long they have been there. (Def's Reply S.M.F. ¶ 45.) The Town also argues that evidence of obstructions or uses in the Pilot Point Section where it transects Lots 72, 74A, and 74B is irrelevant because those lots are not owned by Plaintiffs. (Def's Reply S.M.F. ¶¶ 33, 38, 43.)

The Town has no fee interest in any part of Surf Side Avenue and has never accepted public rights over the Pilot Point Section. (Pl's Supp'g S.M.F. ¶¶ 9, 11.) However, the Town has taken formal action pursuant to statutory authority to extend the Town's right to either accept or vacate its right to accept the incipient dedication of the Pilot Point Section at a later date. (Def's Add'l S.M.F. ¶ 16.) On September 8, 1997, the Town council voted to extend the Town's right to accept certain paper streets within the Town for a period of twenty years. (Def's Add'l S.M.F. ¶ 17.) Pursuant to that vote, the Town recorded a notice of its reservation of rights in the Registry (the "1997 Notice"). (Def's Add'l S.M.F. ¶ 17.) On October 5, 2016, the Town voted to extend its right to accept certain paper streets within the Town for a further twenty-year period. (Def's Opp'g S.M.F. ¶ 18.) Prior to these votes, in 1992, consistent with the Maine Department of Environmental Protection's then newly-promulgated minimum shoreland zoning roadway setback standards, the Town adopted an ordinance (the "1992 Ordinance") that in relevant part barred the construction of any new roadway within fifty feet of the ocean's normal high-water line. (Pl's Supp'g S.M.F. ¶¶ 12, 17.) At least seventy-two percent of the Pilot Point Section is within the fifty-foot setback area. (Pl's Supp'g S.M.F. ¶ 16.) At least ninety-six percent of the Pilot Point Section is within the 1992 Ordinance's seventy-five-foot setback area, where new roadway development is prohibited unless no reasonable alternative exists. (Pl's Supp'g S.M.F. ¶ 25.)

When a developer of a subdivision records a deed with a proposed, unaccepted way, she is said to have made an "incipient dedication" of the proposed way for public use. See, e.g., Ocean Point Colony Trust, Inc. v. Town of Boothbay, 1999 ME 152, ¶¶ 1, 7, 739 A.2d 382, 383-84 (Me. 1999).

The two Complaints in these consolidated cases each plead two counts for declaratory judgment, which are the same in each Complaint. Count I seeks a declaration that the Town's right to accept the incipient dedication has lapsed at common law. (Pilot Point, LLC Compl. ¶¶ 25-31; Khalidi et al. Compl. ¶¶ 36-43.) Count II seeks a declaration that if the Town accepts the Pilot Point Section of Surf Side Avenue, that it is prohibited from altering the location, construction, or usage of the proposed roadway to become a trail or other type of public recreation space. (Pilot Point, LLC Compl. ¶¶ 32-34; Khalidi et al. Compl. ¶¶ 44-47.)

DISCUSSION

I. Ripeness and Timeliness

The Town's threshold argument is that Plaintiffs' claims are not ripe for adjudication. 14 M.R.S. § 5954 of Maine's Declaratory Judgments Act provides that:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration "of rights, status or other legal relations thereunder.


The Declaratory Judgments Act "may be invoked only where there is a genuine controversy." Patrons Oxford Mut. Ins. Co. v. Garcia, 1998 ME 38, ¶ 4, 707 A.2d 384 (citing Wagner v. Secretary of State, 663 A.2d 564, 567 (Me. 1995)). "A genuine controversy exists if a case is ripe for judicial consideration and action." Id. (citing id.). Ripeness is a question of law. Johnson v. Crane, 2017 ME 113, ¶ 9, 163 A.3d 832. Courts consider two factors in determining whether a case is ripe for review: (1) the fitness of the issue for judicial decision and (2) the hardship to the parties of withholding court consideration. Id. Speculative hardships cannot satisfy this requirement. Clark v. Hancock Cty. Comm'rs, 2014 ME 33, ¶ 19, 87 A.3d 712 (citing Johnson v. City of Augusta, 2006 ME 92, ¶ 8, 902 A.2d 855). See also Keybank Nat'l Ass'n v. Sargent, 2000 ME 153, ¶ 24, 758 A.2d 528 (quoting Maine Pub. Serv. Co. v. Public Utils. Comm'n, 524 A.2d 1222, 1226 (Me. 1987)) ("A case is fit for judicial decision if it 'presents a concrete and specific legal issue' that 'has a direct, immediate, and continuing impact' on the parties.")

The thrust of the Town's argument is that "lawsuits involving the actions of municipalities will not be ripe until the final decision affecting a particular plaintiff has been made." (Def's Mot. Summ. J. 6 (emphasis in original).) However, all of the cases cited by the Town for this proposition govern the final judgment rule for appeals of municipal agency actions pursuant to M.R. Civ. P. 80B. In effect, the Town seems to be conflating the "final action" rule for appeals of government actions under M.R. Civ. P. 80B with the rule that there be a genuine controversy ripe for judicial consideration and action for a plaintiff to state a claim for declaratory judgment. Compare Patrons Oxford Mut. Ins. Co., 1998 ME 38, ¶ 4, 707 A.2d 384 (declaratory judgment action ripe where there is a "genuine controversy" because "the case is ripe for judicial consideration and action" as determined by the two-factor test) with Rockland Plaza Realty Corp. v. City of Rockland, 2001 ME 81, ¶ 6, 772 A.2d 256 (general rule that for a case to be ripe "final action by an administrative body is required before a party can appeal that action.") (emphasis added)).

The Court declines to apply a "final decision" rule to these declaratory judgment claims. The Town cites no authority for such a rule in the declaratory judgment context. Furthermore, it would not make practical sense to apply such a rule here. Imposing a final action rule as to Count I could leave Plaintiffs without a resolution until 2036. (Def's Opp'g S.M.F. ¶ 18.) The Town's right to accept an incipient dedication is an inchoate right that does not grant a current right to enter onto Plaintiffs' properties. Harris v. S. Portland, 118 Me. 356, 359, 108 A. 326, 328 (1919) (referencing municipality's "inchoate rights growing out of the incipient dedication"). However, the uncertainty regarding whether the Town could exercise such a right is precisely the kind of issue that declaratory judgment actions are meant to resolve, provided the issue is ripe as determined by recourse to the two-factor test described above. See Dowley v. Morency, 1999 ME 137, ¶ 11 n.4, 737 A.2d 1061 ("a declaratory judgment action is a suitable form of action for determining rights in real property") (citations omitted); Hodgdon v. Campbell, 411 A.2d 667, 669 (Me. 1980) (purpose of the declaratory judgment act is "to provide a more adequate and flexible remedy in cases where jurisdiction already exists") (quoting Casco Bank & Tr. Co. v. Johnson, 265 A.2d 306, 307 (Me. 1970)). See also Horton & McGehee, Maine Civil Remedies § 34(c) at 33 (4th ed. 2004) ("No injury need have been suffered nor wrong inflicted as a predicate to a declaratory judgment action; the very purpose of the declaratory judgments act is to spare the parties the necessity of doing or suffering wrong before their legal rights can be construed judicially.")

The Town also analogizes to the timing rules of M.R. Civ. P. 80B to argue that Count I is untimely because Plaintiffs' cause of action accrued with the recording of the 1997 Notice and they did not file their Complaints seeking declaratory judgments within six years of that recording. As discussed in more detail below, the 1997 Notice did not explicitly list the Pilot Point Section. Plaintiffs did not feel compelled to bring the instant litigation until the Town began to take preliminary, exploratory steps toward development of the Pilot Point Section, which did not happen until 2016-17. (Pl's Add'l S.M.F. ¶¶ 58-59.) 2016 was also the year that the Town voted to extend its right to accept proposed ways in the Town a further twenty years by recording a second notice in the Registry, this time explicitly listing Surf Side Avenue. (Def's Supp'g S.M.F. ¶¶ 6-7.) In the context of this case the Court concludes that Count I is timely.

Turning to the application of the two-factor test for ripeness, the Court concludes that the issue of whether the Town's right to accept the incipient dedication of the Pilot Point Section has lapsed, presented in Count I, is ripe. As to the first factor, the issue is fit for judicial decision because it presents a concrete and specific legal issue—whether the Town's right to accept the Pilot Point Section has lapsed at common law—and furthermore the issue has a direct, immediate, and continuing impact on both Plaintiffs' use or disposition of their property and the Town's planning with respect to the Pilot Point Section. See Keybank Nat'l Ass'n, 2000 ME 153, ¶ 24, 758 A.2d 528. As to the second factor, withholding judicial resolution of the issue imposes a hardship on Plaintiffs because Plaintiffs have shown that the Town's right to accept the Pilot Point Section is affecting property values and the marketability of the affected plots now. (Pl's Add'l S.M.F. ¶¶ 22, 42.) With respect to the Town, a judicial declaration as to whether the Town's right has lapsed "can only aid [it] in making use of its lawful . . . powers." See Me. Pub. Serv. Co. v. Pub. Utils. Com., 524 A.2d 1222, 1226 (Me. 1987).

However, the Court reaches the opposite conclusion with respect to Count II. The issue of whether the Town is prohibited from altering the location, construction, or usage of the proposed roadway to become a trail or other type of public recreation space is not ripe under the two-factor test. First, there is no "concrete, certain, or immediate legal problem" presented by this Count. It is undisputed that on October 2016 and February 2017, the Town discussed, among other options for the space, the creation of a public trail system through the Pilot Point Section. (Pl's Add'l S.M.F. ¶ 58.) It is also undisputed that the Town retained Sebago Technics to survey, analyze, and provide the Town with a comprehensive study regarding the feasibility of locating a public walking path on or around Surf Side Avenue. (Pl's Add'l S.M.F. ¶ 59.) However, this is the extent of the evidence of the Town's intent to construct a trail or public recreation space along the Pilot Point Section. Put another way, there is no factual dispute that the Town has not taken any formal action on accepting the way for any purpose. The legal problem is entirely speculative. Although the declaratory judgment law does permit "anticipatory challenges to a regulation or ordinance to resolve a dispute regarding a planned action, before the matter actually proceeds and the challenged ordinance is applied to the detriment of the plaintiffs[,]" Plaintiffs in this case are not challenging an ordinance. Sold, Inc. v. Town of Gorham, 2005 ME 24, ¶ 14, 868 A.2d 172 (emphasis added).

Second, Plaintiffs have not demonstrated any harm they will suffer if the Court withholds decision on the issue. Plaintiffs' argument of harm is hedged entirely in the context of an argument discussed below; that is, that the Town is prohibited from constructing a paved road along the Pilot Point Section due to a municipal ordinance and Maine Department of Environmental Protection regulations. In essence, Plaintiffs argue that because resolution of Count II in their favor would be dispositive of the claim stated in Count I, that declining to decide Count II harms them. This is the kind of speculative harm that our Law Court has held insufficient under the second factor of the ripeness test. See Clark, 2014 ME 33, ¶¶ 19-20, 87 A.3d 712.

In sum, the Court concludes that the issue of the Town's hypothetical, future use of an easement that it may or may not accept is not ripe. Count II will be dismissed as unripe. This dismissal is without prejudice, as future action by the Town may cause the issue presented in that Count to ripen.

II. Merits

Public and private rights in "paper sheets" or proposed, unaccepted ways in subdivisions are governed by 23 M.R.S. §§ 3031-3035, 23 M.R.S. § 3032 describes the circumstances under which a proposed, unaccepted way may be deemed vacated:

A proposed, unaccepted way or portion of a proposed, unaccepted way laid out on a subdivision plan recorded in the registry of deeds prior to September 29, 1987 is deemed to have been subject to an order of vacation . . . if, by . . . September 29, 1997, both of the following conditions have been met:
A. The way or portion of the way has not been constructed or used as a way; and
B. The way or portion of the way has not been accepted as a town, county or state highway or as a public utility or recreational easement.

Id
. § 3032(1-A)(A)-(B). However, pursuant to section 3032(B):
The municipal officers of the affected municipality may except a proposed, unaccepted way or portion of a proposed, unaccepted way . . . from the operation of the time limitations [described above] . . . by filing, in the registry of deeds . . . a notice stating that the way or portion of the way is excepted from [deemed vacation] for a period of 20 years from the filing of the notice. To be effective, this exception must be filed prior to the expiration of the time limitations . . . . An extension accomplished under the subsection may be extended by the municipal officers for a subsequent 20-year period by the filing of a new notice within the preceding 20-year extension period.


However, "section 3032 applies only to those incipient dedications that have not lapsed pursuant to the common law." Ocean Point Colony Trust, Inc. v. Town of Boothbay, 1999 ME 152, ¶ 7, 739 A.2d 382. Whether the Town's right to accept the incipient dedication had lapsed prior to the recording of the 1997 Notice is discussed below.

Here, there is no dispute that the Pilot Point Section is a portion of a proposed, unaccepted way (Surf Side Avenue) laid out in a subdivision plan recorded in the Registry on April 10, 1911 that has never been constructed or accepted. (Pl's Supp'g S.M.F. ¶¶ 1, 8, 11.) There is no dispute that on September 8, 1997, the Town Council voted to extend its right to accept certain paper streets within the Town for a period of twenty years and recorded the Notice in the Registry, and then voted again to extend its right to accept certain paper streets a further twenty years prior to the expiration of the first notice, on October 5, 2016, and recorded notice of that extension in the Registry as well. (Def's Supp'g S.M.F. ¶¶ 4-7.)

Although it is undisputed that the Town council voted to extend its rights and recorded a section 3032(2) notice in the registry of deeds, Plaintiffs challenge the legal effectiveness of the 1997 Notice in their written memoranda. Plaintiffs argue that the 1997 Notice is defective because it did not list the ways that were subject to the extension but instead purported to extend its rights to accept all of the paper streets in the Town, with a few specifically listed exceptions. (Pl's Supp'g S.M.F. ¶ 5.) The Maine Superior Court (Horton, J.) has previously concluded that the 1997 Notice is sufficient under 23 M.R.S § 3032(2). Monroe v. Chatmas, No. RE-15-169, 2016 Me. Super. LEXIS 54, at *11 (March 23, 2016). Based on the doctrine of stare decisis and the persuasive authority of Monroe the Court concludes that the 1997 Notice is effective under section 3032.

Plaintiffs did not pursue this argument at the oral argument and seemed to argue under the assumption that the 1997 Notice was effective.

Plaintiffs' primary argument for summary judgment is that the Town abandoned its right to accept the Pilot Point Section when it enacted the 1992 Ordinance, and this was the main focus of Plaintiffs' presentation at oral argument. As authority for this argument, Plaintiffs analogize to Phillips v. Gregg, 628 A.2d 151, 153 (Me. 1993) and State ex rel. Shemo v. City of Mansfield Heights, 765 N.E.2d 345, 354-55 (Ohio 2002). The Court does not find the analogy to either case persuasive. Phillips discusses what a plaintiff must prove to show abandonment of an easement, as opposed to the lapse of a municipality's right to accept an incipient dedication, which requires proof of different elements. A plaintiff can prove abandonment of an easement through a history of nonuse coupled with an act or omission evincing a clear intent to abandon. Phillips, 628 A.2d at 152. As Plaintiffs point out, "when a highway [is] established . . . the common rule is that the public acquires only an easement in land taken for the establishment of the highway except as the rule has been changed by statute[,]" as was done in Maine, but not until 1975, but long after the Plan was recorded in 1911. See Rockland v. Johnson, 267 A.2d 382, 384 (Me. 1970); 23 M.R.S. § 3021(2). However, the instant case does not concern an easement, which is a cognizable property interest, but a right to accept an incipient dedication, which is an inchoate right of the public to accept a proposed, unaccepted way. Harris v. S. Portland, 118 Me. 356, 359, 108 A. 326, 327 (1919). Put simply, the Town could not have abandoned its easement over the Pilot Point Section in 1992 because it did not have an easement over the Pilot Point Section in 1992. It may have had an inchoate light to accept the incipient dedication, which, if previously exercised, would have resulted in an easement, provided that its right to accept the incipient dedication had not lapsed. Whether the Town's right to accept the Pilot Point Section had lapsed is determined by a different test that is distinct from the rule from Phillips for determining whether an easement has been abandoned at common law. See Ocean Point Colony Trust, Inc., 1999 ME 152, ¶¶ 7-9, 739 A.2d 382.

Plaintiffs also cite Rockland for the proposition that the scope of the resulting easement is limited to a "right to the viatic use of the road by the public." Rockland, 267 A.2d at 385. The Court's conclusion above that Count II is not ripe is bolstered by Rockland. In that case, the Law Court did not have to speculate as to whether the municipality's use of an easement it had accepted was impermissible because it was already making use of its easement. Here, the Town has no easement, may never have an easement, and whether its use of any easement it may eventually acquire would be impermissible cannot be determined without speculating as to what that use might be.

In Ohio, the Shemo Court did apply a test similar to the Phillips test for the abandonment of easements to determine whether the City of Mayfield Heights had "abandoned" a paper street, although it seems that evidence of either non-use for a specifically delineated period (twenty-one years) or a municipality's intent to abandon a paper street is sufficient to prove abandonment of a paper street in Ohio. Shemo, 765 N.E.2d at 354; cf. Phillips, 628 A.2d at152 (requiring nonuse and an act or omission evincing a clear intent to abandon). Because the Shemo Court determined that plaintiffs had proven non-use for the requisite period, its discussion of the municipality's "intent to abandon" through inconsistent municipal action may be dictum. Regardless, while Ohio courts may apply Ohio's test for abandonment to determine whether a municipality's right to accept a paper street has lapsed, Maine applies a different test, as explained below.

Finally, even if Maine law were to apply the common law rule of abandonment of easements to a municipality's right to accept an incipient dedication, the Court disagrees with Plaintiffs that the 1992 Ordinance is "an act or omission evincing a clear intent to abandon." Phillips, 628 A.2d at 152. "To prove intent to abandon, a party must show unequivocal acts inconsistent with the further assertion of rights associated with the existence of the easement. . . . The acts asserted as evidence of abandonment must be decisive and conclusive and thereby indicate a clear intent to abandon the easement." Id. at 153; see also Dupuis v. Ellingwood, 2017 ME 132, ¶ 10, 166 A.3d 112 ("A party asserting the extinguishment of an easement by abandonment must establish, by clear and convincing evidence, a history of nonuse coupled with an act or omission evincing a clear intent to abandon.") (citations and quotations omitted). "The effectiveness of an abandonment depends on a finding of intention." Stickney v. City of Saco, 2001 ME 69, ¶ 50, 770 A.2d 592. Here, Plaintiffs have presented no evidence of intention, let alone clear and convincing evidence of intent to abandon. Instead, Plaintiffs urge the Court to follow the reasoning of the Shemo Court and infer an intent to abandon from the mere fact that the Town passed an ordinance which may prevent the Town from constructing a certain kind of way along the Pilot Point Section. At the summary judgment stage, if the Court is to draw any inference, it is in favor of the non-movant. See Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24, ¶ 6, 816 A.2d 63 (courts review "the facts in the light most favorable to the nonmoving party" on summary judgment). The Court declines to conclude that the 1992 Ordinance is clear and convincing evidence of an unequivocal act inconsistent with the Town later exercising its right to accept the Pilot Point Section.

In any event, as noted above, Maine does not apply the common law rule for abandonment of an easement to determine whether a municipality's right to accept an incipient dedication has lapsed. In Ocean Point Colony Trust, Inc. v. Town of Boothbay, the Law Court lays out what is required for a municipality's right to accept an incipient dedication to lapse:

At common law an incipient dedication must be accepted within a reasonable time or the right to accept that dedication will be lost. Adverse possession of the incipiently dedicated way will cause the dedication to lapse, but mere non-use or use that is not inconsistent with the premise that the public may later open the path will not cause the incipient dedication to expire. The facts and circumstances of each case determine whether a reasonable time for acceptance has passed. We have consistently found that the public's right to accept the incipient dedication lapses when another person possesses the property and exhibits ownership over the property in a manner that is inconsistent with the incipient dedication and would likely constitute adverse possession of the property.


1999 ME 152
, ¶¶ 8-9, 739 A.2d 382 (citing Burnham v. Holmes, 137 Me. 183, 16 A.2d 476, 478 (1940); Harris v. City of South Portland, 118 Me. 356, 108 A. 326, 327 (1919); Kelley v. Jones, 110 Me. 360, 86 A. 252 (1913); Bartlett v. City of Bangor, 67 Me. 460, 466 (1878)). The Ocean Point Colony opinion is explicit that the "facts and circumstances of each case determine whether a reasonable time for acceptance has passed," and declines to impose any bright-line rules as to what uses are inconsistent with the public's later acceptance of a way or how long the use must be extant for the public's ability to accept the way to lapse. Id. ¶ 9.

The Court concludes that there are unresolved factual issues that bear on whether the Town's right to accept the Pilot Point Section has lapsed. First, there is a dispute about whether the purported inconsistent uses identified by Plaintiffs are indeed inconsistent "with the premise that the public may later open the path." Ocean Point Colony Tr., Inc., 1999 ME 152, ¶¶ 8, 10, 739 A.2d 382. The case law is not explicit as to whether this issue is factual or legal, but the case law suggests that it is factual. There is, however, some guidance as to what is insufficient as a matter of law. See Bartlett, 67 Me. at 466 ("using the land for pasturage, or the growth of crops, or other purpose, which does not indicate an intention that it shall never be used as a street," is not an inconsistent use). Maintained ground cover, landscaping, fill, and subgrade irrigation systems are thus unlikely to be inconsistent uses sufficient to foreclose the Town from accepting the Pilot Point Section. However, at the oral argument, Plaintiffs argued that those uses are distinguishable from the "agricultural" uses the Law Court held insufficient in Bartlett. Plaintiffs may attempt to prove so at trial.

Second, there is a dispute about how long any particular structure or object has been in the Pilot Point Section, and whether such structures and objects have been there consistently. The Court concludes that there is a genuine factual dispute as to whether any of the myriad uses identified by Plaintiffs have been in the Pilot Point Section long enough to satisfy the test from Ocean Point Colony, which the Law Court explicitly held to be a "facts and circumstances" inquiry. Ocean Point Colony Tr., Inc., 1999 ME 152, ¶ 9, 739 A.2d 382. Plaintiffs will bear the burden of proving that under the facts and circumstances of this case the various uses they have identified have been in the Pilot Point Section of their lots for a sufficient period of time such that "a reasonable tune for acceptance has passed." Id.

At the oral argument, the Town challenged the sufficiency of Plaintiffs' evidence of inconsistent uses during the requisite period—1911 to 1997—pointing out that most Plaintiffs did not acquire their parcels until after 1997 and arguing, correctly, that any uses after the recording of the 1997 Notice are not relevant to the lapse analysis. Ocean Point Colony Trust, Inc., 1999 ME 152, ¶ 7, 739 A.2d 382 (agreeing with defendant that section 3032(2) "applies only to those incipient dedications that have not already lapsed . . . . pursuant to the common law") (emphasis added); 23 M.R.S. § 3032. The Court concludes that on this record Plaintiffs have generated a factual issue as to whether any inconsistent uses were extant for a reasonable time between 1911 and 1997. The Town can attack the Plaintiffs' witnesses' credibility on this issue and argue that the credible evidence is insufficient at trial.

Finally, the parties dispute whether the purported "inconsistent uses" identified by Plaintiffs actually obstruct the Pilot Point Section where it traverses each Plaintiff's lot. At the oral argument, the Town argued that each Plaintiff must prove inconsistent use for the requisite time period in order to prove lapse. However, in Kelley, the Law Court suggests that a party may prove lapse as to a portion of a "paper street" without proving lapse over its entire length. Kelley, 110 Me. at 363, 86 A. at 254. In that case, the Law Court assumed in dicta that even where "substantial buildings had been erected upon" a proposed, unconstructed way by plaintiffs' predecessors-in-interest, the public still retained rights in a "small 'heater-piece' at the extreme point . . . which is said to have been constantly used as a part of the sidewalk." Id. Analogizing to the instant case, this means that Plaintiffs are entitled to prove the public's rights have lapsed as to some lots, or portions of those lots, at trial. On the other hand, as the Town pointed out at oral argument, if the Town can and does accept the Pilot Point Section, the resulting way may be able to be constructed such that it avoids the obstacles in its path identified by Plaintiffs. The Court concludes that on this record Plaintiffs have generated a genuine factual dispute as to whether the Town's rights have lapsed through inconsistent as to at least some portions of the Pilot Point Section in each of their lots in the context of their opposition to the Town's motion for summary judgment. On the other hand, with respect to their motion, Plaintiffs have not demonstrated that there is no dispute of fact that the Town's right to accept any portion of the way has lapsed through inconsistent use.

Plaintiffs may prove that the Town's right has lapsed as to enough lots that it would be infeasible for the Town to make any use of those portions of the Pilot Point Section over which its right to accept has not lapsed. Though the scope of the Town's easement in the event of any acceptance is not yet ripe, a declaratory judgment as to the geographical scope of what it can accept will be of use to the Town in determining whether it accepts it at all. This further highlights why Count I is ripe for judicial decision. See Me. Pub. Serv. Co., 524 A.2d at 1226.

A main point of Plaintiffs' oral argument was that the only easement the Town can accept over the Pilot Point Section is a broad thoroughfare suitable for modern vehicular traffic. As the Court concluded above, the issue of the scope of the Town's easement in the event it accepts the Pilot Point Section, assuming its right to accept the Pilot Point Section has not lapsed, is not ripe. --------

CONCLUSION

Based on the foregoing it is hereby ordered:

1. That Count II of the Complaints in BCD-RB-18-05 and BCD-RE-18-06 is DISMISSED as unripe. Because the claim stated in Count II of each Complaint may ripen in the event that the Town accepts the Pilot Point Section, this dismissal is without prejudice.

2. That both parties' motions for summary judgment on Count I of the Complaints in BCD-RE-18-05 and BCD-RE-18-06 are DENIED.

The Clerk is requested to enter this Order on the docket for this case by incorporating it by reference. M.R. Civ. P. 79(a). Dated: 2/18/19

/s/_________


M. Michaela Murphy


Justice, Business and Consumer Court Entered on the Docket:2/19/19
Copies sent via Mail___Electronicallyv