TRI Ripples from the Law Court decision continue to rock Nordic's boat...and Belfast's

[BELFAST, MAINE - Monday, July 17, 2023] On July 5, 2023, HLH filed a motion with the Board of Environmental Protection (BEP) asking it to vacate its November 2020 Order granting Nordic Aquafarms, Inc. (Nordic) certain permits and licenses. Our motion is based on the arguments and evidence determined  by the Law Court in its February 16, 2023 decision on our title claims case. The consequences of the Law Court's decisions affect several other cases entangling Nordic, all of which depend in some way on the question of "title, right, or interest" (TRI). Nordic's claims on four -- not one --  parcels of land are seriously threatened. 

The Board should vacate its permit decisions of November 19, 2020, in line with the Law Court’s Decision  in Mabee v. Nordic Aquafarms, Inc. [2023 ME 15, 290 A.3d 79] and the additional facts submitted in our motion. Nordic lacks TRI and thus the ability to develop or use these four areas in the manner incorrectly authorized in the BEP permits.  The four parcels are:

(1) The former Eckrote property. This upland lot on the eastern side of Route 1 is designated as Belfast Tax Map 29, Lot 36 (hereinafter “Lot 36”). The Law Court determined Lot 36 is subject to a “residential purposes only” servitude that runs with the land for the benefit of that portion of Harriet L. Hartley’s estate she retained after 1946.  The Law court also determined that this servitude is binding on the successors in interest of Fred R. Poor — which includes the Eckrotes, the City of Belfast and Nordic. (See Mabee v. Nordic Aquafarms Inc., 2023 ME 15, ¶ 58 and f.n.13.)

(2) The mudflats below Lot 36. The Law Court also determined that Mabee-Grace have owned the intertidal land below Lot 36 since 1991. Mabee-Grace gave the Friends an enforceable conservation easement to the flats in April 2019.  In the eminent domain case (RE-2021-007) currently before Waldo County Superior Court, Justice Robert Murray entered a Stipulated Judgment on March 2, 2022 declaring that in the City could not amend or terminate Friends’ conservation easement through eminent domain.

The upshot? Even if the City “took” ownership of the intertidal land adjacent to Lot 36 by eminent domain in 2021, the City "took" it subject to a conservation easement that prohibits any dredging or commercial or industrial development on it!  Thus, Nordic cannot put its pipes across the mudflats because the City has no legal capacity to grant Nordic permission to violate the conservation easement on the flats. (See, e.g. Mabee v. Nordic Aquafarms Inc., 2023 ME 15, ¶¶ 10, 17, 25-45, 53-61.)

(3) 12.5 acres of Nordic's 70+ acre site. A 12.5-acre parcel inside the tract on which Nordic wants to build its plant is burdened by restrictions in a 1973 deed from the State of Maine to the City of Belfast (See the Waldo County Register of Deeds, Book 710, Page 1152), a 1987 deed from the City of Belfast to the Belfast Water District (BWD) (See WCRD Book 1092, Page 145), and a March 10, 2022 deed from the BWD to Nordic (See WCRD Book 4776, Page 210, Page 221).

Restrictions include a prohibition on any buildings on this parcel and a requirement to maintain it in its “natural condition" — which is forested.  Although the City has attempted to release Nordic from these restrictions, it has no statutory right to do so. We have a separate lawsuit challenging this attempt to evade the 1973 restrictions. Thus, Nordic’s ability to use this land is in serious doubt also.

(4) The mudflats beyond Belfast's boundaries. Unknown to almost everyone, a portion of the intertidal land adjacent to Lot 36 that the City of Belfast claims to have taken by eminent domain is outside Belfast's municipal boundaries. When the City’s boundaries are determined using the definition of the "mouth of a river” required by the Law Court’s February 16, 2023 decision, a portion of the Mabee-Grace intertidal mudflats is beyond that boundary.

Belfast has no ability to use eminent domain to take land outside the municipal boundaries established by statute in 1813 — meaning the City could not take any portion of the intertidal area that is outside city limits.  Mabee and Grace retain ownership of this portion of the intertidal land...again, according to the Law Court's February 16, 2023 decision in Mabee v. Nordic Aquafarms Inc. The Court expressly rejected the definition of “mouth” of a river or brook that the City's surveyor used to define the intertidal land the City allegedly took in August 2012 from Mabee and Grace.

Conclusion: As they say in the real estate business: "Location, location, location!"

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For more information, please contact hartleyconservationarea@gmail.com.