Friends of HLH asks Bureau of Parks and Lands to vacate Nordic submerged lands lease
Friends of Harriet L. Hartley Conservation Area “Protecting the future of Belfast Bay”
FOR IMMEDIATE RELEASE
Friends of HLH asks BPL to vacate Nordic submerged lands lease
[BELFAST, MAINE – Thursday, June 29, 2023] – Wednesday morning FHLH attorney Kim Ervin Tucker filed a motion with the Bureau of Parks and Lands (BPL) to vacate Nordic’s submerged lands and dredging leases and dismiss the company’s March 2019 application for those leases.
Attorney Tucker’s filing centers on our long-standing assertion that Nordic never had “right, title, or interest” (RTI) in the intertidal mudflats adjacent to the State’s submerged lands. Nordic’s claim to sufficient RTI for its BPL applications rests on one document: an August 6, 2018 Easement Option Agreement (EOA) the company made with Richard and Janet Eckrote, but never exercised.
At the time, the Eckrotes owned the upland (known as “Lot 36” in legal proceedings) above the flats and claimed to own the flats as well. But the Maine Supreme Judicial Court (a/k/a ‘the Law Court’) confirmed in a February 16, 2023 decision that the flats are owned by Eckrote neighbors Jeffrey Mabee and Judith Grace. (See Mabee v. Nordic Aquafarms Inc., 2023 ME 15, 290 A.3d 79.
The Law Court also determined that Lot 36 was burdened by a 1946 restriction that runs with the land, prohibiting any for-profit business being conducted on this lot. Harriet L. Hartley imposed the restriction when she conveyed a portion of her land to Fred R. Poor (Janet Eckrote’s grandfather). The Law Court held that: “the restriction to ‘residential purposes only,’ benefiting the holder of the land now owned by Mabee and Grace, runs with the land conveyed to Poor, binding Poor’s successors.” Mabee v. Nordic Aquafarms Inc., 2023 ME 15, ¶ 58.
Further, the Court held that: “As successors in interest to Hartley’s benefitted property, Mabee and Grace have standing to enforce the covenant. [See Restatement (Third) of Prop.: Servitudes § 1.3 cmt. d (“[I]f the benefit runs with land, a successor to the land may enforce without assignment ”).” Mabee v. Nordic Aquafarms Inc., 2023 ME 15, f.n. 13.]
In other words, the Law Court also determined in February 2023 that – as successors to Fred Poor -- the Eckrotes lacked the legal capacity to grant Nordic an easement to use upland Lot 36 to bury the industrial pipes for its for-profit business. The same is true of the city of Belfast and Nordic who are also “successors of Poor” bound by the 1946 “residential purposes only” servitude on Lot 36.
“Consequently,” Tucker writes on Page 1 of her motion, “at all times since 2018, Nordic has lacked the administrative standing necessary to obtain, or retain, either a Submerged Lands lease or Dredge lease from the Bureau.”
Tucker initially asked the Law Court to vacate BPL’s September 9, 2020 decision to grant the leases. The Bureau opposed that motion, but as Tucker points out in her Wednesday filing, “[a]fter the Law Court entered its Decision on February 16, 2023…the Bureau acknowledged that it could not issue Nordic the leases…”
Vacate the September 9, 2020 Order and dismiss Nordic’s pending application as incomplete, Tucker argues, because the Law Court said:
The original owners of the upland property never owned the intertidal land adjacent to the intertidal land below their lot.
A “residential purposes only” restriction runs in the deed to that property and is enforceable by any subsequent owner of the land.
The lawful owners of the intertidal zone, Jeffrey Mabee and Judith Grace, created the enforceable conservation easement to that land that FHLH now holds.
The Waldo County Superior Court has previously determined in a Stipulated Judgment entered on March 2, 2022, that City’s attempt to take Mabee and Grace’s intertidal land adjacent to Lot 36 and right to enforce the “residential purposes only” servitude by eminent domain did not amend or terminate the conservation easement held by Friends. Equally important, the City never attempted to “take” Friends’ right to enforce the “residential purposes only” servitude on Lot 36, as “successors in interest to Hartley’s benefited property.”
“Based on these determinations,” Tucker continues, “as a matter of law, the Eckrotes never had the legal capacity to grant Nordic any easement in over or under Lot 36 or the adjacent intertidal land, meaning that the 8-6-2018 EOA did not confer RTI to Nordic.” (Emphasis in the original text.)
If the Bureau agrees with Tucker’s motion, the submerged lands and dredging leases Nordic desperately needs will be vacated. But the basis for Nordic claiming sufficient “right, title, or interest” evaporated in the Law Court’s Feb. 16, 2023 decision and the City lacks legal capacity to grant Nordic an easement that violates the 1946 “residential purposes only” servitude on upland Lot 36 or the conservation easement.
No RTI; no lease. No lease; no pipelines to the bay. No pipelines; no fish factory.