November 23, 2012






Court favors city in lawsuit over land sale
 by Lora Whelan


     The lawsuit brought by Eastport residents Phyllis Bradbury and David Gholson against the City of Eastport over the sale of The Boat School property was dismissed in Washington County Superior Court on November 15 and made known to the involved parties on November 20. The Boat School has struggled since the suit was filed and has been unable to offer full-time programs this school year. While an appeal can still be filed, Dennis Mahar, the city attorney, says, "Speaking for the city, we're very pleased with the decision. Now, hopefully, the city and The Boat School can move forward."
     The two Eastport residents brought the suit against the city in late 2011 because they believed the city failed to comply with the requirements of the city charter to advertise the sale of the city‑owned property before entering a sale agreement. They contended that the charter's language requires that the city manger advertise the property. In a section devoted to a description of the city manager's conduct and duties, the charter states that the manager "shall conduct all sales of property belonging to the city which is unfit or unnecessary for the city's use, but only after such sale has been authorized and advertised by the city council."
     In late October 2011 First Perry Realty, a company created by Perry Marine & Construction (PMC), which is a partnership between CPM Constructors and Morrison Manufacturing Inc. of Perry, purchased the city‑owned parcel for $300,000, which included The Boat School facility and a pier used by the public and commercial entities for boat repair, launching and berthing. The city's sale to First Perry Realty stipulated that PMC turn over about half the property to the nonprofit Friends of The Boat School, allow public access to the ramp for one year and give permanent ramp access to specific stakeholders and that PMC give $75,000 to the city to use to build a replacement public boat ramp. In addition a small parcel of land on Deep Cove Road was given to the city as a location to build the new ramp. PMC is using the property as a site for the fabrication of units for Ocean Renewable Power Company's TidGen Power System, along with adding a marine service and repair component to their operations.
     The Superior Court ruling on November 15 explained that while the city charter noted the need for the city manager to advertise city property up for sale, the charter did not specify what type of advertising had to be used. The ruling states, "Nowhere within the charter itself is the term 'advertise' or 'advertised' defined." While the plaintiffs contended that advertising should include placing ads in newspapers, listing property with realtors, seeking assistance from realtors and other professionals, posting notices for bids, and other actions to solicit broad interest, the judgment states, "They are not steps legally required in order to comply with the city charter." In addition the ruling explained that the charter had a clause that states that the power of the city under the charter "should be construed liberally in favor of the city."
     Attorney Mahar says that the section of the lawsuit dealing with the city's sale of the property "is done." While it could be appealed, he thinks it more likely that if there is going to be an appeal it would be over a section of the lawsuit pertaining to slander. "That ball is in the plaintiffs' court right now. I don't think the defendants, certainly not the city, will appeal."
     Concerning the slander section, he explains, "Slander is a complex concept" that calls into play property rights. That section of the suit filed by defendants was not completely dismissed. He adds that there could be a negotiation for appeal not to go forward based on that part of the lawsuit. Mahar says that an appeal needs to take place within 21 days, but because of the slander component not being dismissed, he needs to do further research on the appeal timeline.
     The ruling says in part, "The defendants' claim based upon slander of title relies in part upon the filing of the notice of lis pendens, and in part upon separate allegedly slanderous statements made by one or more of the named plaintiffs." The court writes, "Accordingly, the plaintiffs' motion for summary judgment with respect to the defendants' counterclaims is hereby granted in part and denied in part." It then states, "Summary judgment as it relates to the count in the counterclaim alleging slander of title based upon the statements of the plaintiffs is denied until such time the defendants have an opportunity to complete discovery. ... After completion of discovery, the plaintiffs may renew their motion for summary judgment with respect to this remaining count... should they choose to do so."
     Kristin Collins, attorney for the plaintiffs, had not spoken to her clients on the morning of November 20, but says, "I think there is an error of judgment" in the ruling. She points to the slander section. "That part may be appealed, but I will need to discuss it with my clients."
     In January 2012 the Friends of The Boat School took over the operation of the school from Husson University. But by August the board of directors found that the lawsuit had made it impossible to attract funding from donors, foundations and federal and state funding programs. "They will not give a grant to an entity named in a lawsuit with the possibility, no matter how unlikely, of losing the property," board President Thomas Ries explained at the time.
     Dean Pike, who is clerk for the Friends group, says that the board will meet to discuss next steps for the future of The Boat School but that they will most likely wait to see if the plaintiffs file an appeal.

November 23, 2012     (Home)     


www The Quoddy Tides article search