Eminent domain action in Belfast can be a 'nuclear blast,' law school professor says

·7 min read

Aug. 9—BELFAST, Maine — The city of Belfast is moving closer to using eminent domain law to get an easement across a disputed 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.

But that doesn't mean the strategy is necessarily straightforward or a guaranteed move forward, according to Jeff Thaler, a professor at the University of Maine School of Law. Thaler said recently that eminent domain law is much more complicated than the short mention in the Maine Constitution might suggest.

In Article I, section 21, it says only that "Private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it."

But the constitution's relative brevity on eminent domain is balanced by the need to carefully interpret each word, Thaler said. The Maine Supreme Court has interpreted the phrase "public use" to be a limit on the authority to acquire private property by taking, or eminent domain, he said. That means that the general public has to have access to the property — not just particular individuals.

"The law court has previously interpreted that to mean that the use of eminent domain power for things like correcting faulty lot lines or private title deficiencies doesn't count," Thaler said. "It's entirely possible that [those with claims] would sue the city of Belfast in terms of whether this [would] essentially extinguish whatever theoretical rights they have in the intertidal zone for the purposes of public use. I don't know how the court would look at it."

City officials have said that securing the easement would allow Belfast to reap the benefits detailed in a 2018 agreement between the city of Belfast, Nordic Aquafarms and the Belfast Water District. Those benefits — described earlier this week by city attorney Bill Kelly — include providing the city with land used for recreation, including the popular Little River Trail, and the water district with enough guaranteed revenue to replace aging infrastructure and bring a new well online. City officials also believe the salmon farm will provide Belfast with needed tax revenue and new jobs, as well as giving the city land for a new waterfront park.

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

Clearing the title to the disputed intertidal land is one of the city's stated goals of the eminent domain action. The ownership of the mudflat is being litigated right now at Waldo County Superior Court — a case that has been seen as critical to the siting of the proposed $500 million land-based salmon farm.

But recently, Richard and Janet Eckrote, who years ago had sold an easement to cross the mudflat 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 will allow the company to bring its intake and outflow pipes to Penobscot Bay.

The city of Belfast has tried to acquire the claims to the mudflat by hiring an appraiser to determine their value and then sending out offers to all the people who could claim an interest. Because the good faith effort to make purchase offers failed, the city is able to now pursue eminent domain on the property.

The action, as with many aspects of the proposed salmon farm, has been deeply controversial. City Councilor Mike Hurley said Tuesday during a council meeting that he and other councilors have been sharply criticized for their actions regarding the fish farm and have even lost friends.

"Why am I willing to endure that? Why am I willing to have people hate me?" he said. "Because it's for the good of Belfast. For myself, I would love nothing more than to say, 'There's not a 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's specified in the constitution, Maine law does include some additional limitations on eminent domain authority. In 2005, the state passed a law that says land used for agriculture, fishing or forestry or land that has been improved by homes or other structures may not be taken for the purposes of industrial and other types of development. It also cannot be taken primarily for the enhancement of tax revenue.

"I don't see those applying here. This intertidal zone is not used for agriculture or fishing," Thaler said. "Opponents could plead that in a complaint. They could challenge what the city and Nordic Aquafarms are doing."

Indeed, opponents have indicated that they will sue the city as a result of the eminent domain action.

Belfast was obligated by law to offer fair compensation to those with alleged claims on the intertidal zone in question before taking the property for public use. But the professor said that such offers do not need to be accepted and more lawsuits may well be forthcoming regarding the eminent domain action.

"I think you're going to continue seeing litigation coming out of this," Thaler said. "I think that this is a creative move both by the city and by Nordic Aquafarms, in terms of trying to address the situation. I don't think it's going to any more quickly get them to the finish line."

In Maine, eminent domain is not commonly used. A 2005 survey by the Maine Municipal Association found that more than 96 percent of responding municipalities had neither used nor attempted to use eminent domain in the previous five years. Of the communities that did, the dominant reason was road projects.

One high-profile eminent domain case in Maine that did not have to do with a road project took place in Bangor in the mid-1990s, when the city acquired several parcels of land on Main Street to clear the area to make way for Shaw's Supermarket.

The city hired an appraiser to assess the properties and then made offers to the property owners. Two agreed to sell, with the other three filing suit against the city of Bangor. One of those property owners eventually 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 trial over the appraised value of their properties.

One of the lawsuits wasn't decided until 1997, two years after the city had acquired the land for redevelopment.

Belfast is among the small number of municipalities with eminent domain experience. In 2016, when city officials sparred with the owner of Penobscot McCrum over their strong desire to get through the company's waterfront property in order to connect the newly constructed Belfast Rail Trail with the Belfast Harbor Walk and downtown.

City officials worked for years to negotiate with owner Jay McCrum, but those efforts weren't successful. The city offered McCrum $55,000 for a 14-foot-wide easement to cross the property, but he didn't respond by the deadline. After that, councilors unanimously agreed to use eminent domain to get a recreation easement across the property. Not long after that, McCrum had an apparent change of heart, offering to build a trail through his property and lease it to the city. The city accepted, entering a lease agreement with McCrum, and the trail has been widely used ever since.

That kind of deal is a much more popular way to go than eminent domain, Thaler said. That's why there are limits to its use in the Constitution and why it is used sparingly, he said.

"Legislators represent people and those people will complain if they think that government is overpowering and overreaching its service to citizens," he said. "That's why eminent domain is not frequently used."

The preference is that the government agency gets an appraisal and buys the land, in a mutually agreeable transaction, he said.

"That's by far the preferred approach," Thaler said. "Eminent domain is the nuclear blast, the last step before court. That's why so many of these cases end up in court."

Our goal is to create a safe and engaging place for users to connect over interests and passions. In order to improve our community experience, we are temporarily suspending article commenting