Judge Finds ‘Free’ Upland Easement Road Offer Anything but, Instead More Costly, Complex

By Paul Sylvain

The eminent domain portion of a years-long lawsuit against the town of Machiasport by Starboard district property owners Carmine and Christine DeFalco, and their neighbor, Paula and her late husband Michael Aschettino, was decided in favor of the town, in a highly detailed, 17-page ruling issued July 30, by Maine Business and Consumer Court Judge Michael A. Duddy. 

While Machiasport welcomed the ruling, counsel for the plaintiffs revealed in a request for comment from this publication that they were evaluating their options days after Duddy’s ruling was handed down last week. 

The DeFalcos are year-round residents of a farm at 1755 Port Road. Their neighbor, Paula Aschettino, maintains legal residence on Cape Cod, Massachusetts, but owns and resides seasonally at 1759 Port Road. Their abutting oceanfront properties include the posted private beaches down to the water.

At issue was a portion of Port Road that crosses their properties parallel to, and just above, the beach. This road has gone by several names locally over the past century, including the Starboard Road, Beach Road Starboard, and simply Beach Road. To simplify his written findings, Judge Duddy refers to it as “the Road.”

He explains that this road currently provides access to residences in Machiasport across Starboard Creek, on Starboard Island, a peninsula known as the Point of Maine, and the Florian Development. Judge Duddy goes on to state, “Without this access, the Town would be unable to provide emergency services to these residents, and the residents would not have road access to their properties.”

The judge observed that this section of Port Road “has a substantial history,” with some residents of the town saying it has always been used as a public way, while others claim that at one time it was “a private way over which residents passed with the implied permission of the landowners.”

A 34-year dispute begins

According to the judge’s historical summation, trouble apparently began more than three decades ago, after the Machiasport Select board, on Aug. 1, 1991, declared this section of Port Road a town road and “formally took over maintenance of the road.”

Judge Duddy wrote, “The DeFalcos predecessors in interest, as well as Mrs. Aschettino and her late husband, brought previous litigation regarding the Road against the town in the 1990s. That litigation resulted in a Consent Judgement dated Sept. 16, 1997, which among other things, recognized that the Road is a town road, over which the public has a right of way, and the town has the sole right to maintain the Road.”

While the 1997 consent judgment, reached in Washington County Superior Court in Machias, should have settled the question of the road’s ownership, the conflict between the properties’ owners and the town continued. This time, the issue centered on the road’s 16.5-foot width, specified in the consent judgment. As Judge Duddy noted, the 16.5-foot width limit in the 1997 judgement “is ambiguous as to whether the Town may exceed the 16.5-foot width for purposes of maintenance or placement of boulders to deter parking on the side of the road.”

His ruling explains that the dilemma faced by the town in the aftermath of the 1997 judgement was the town’s inability to “adequately maintain the Road with not being able to move the boulders outside of the already narrow 16.5 foot traveled way, and not being able to enter outside of the 16.5 foot traveled way to perform maintenance.”

Judge Duddy goes so far as to determine, “This situation has been further complicated by the Plaintiffs making demands that the Town take immediate action to maintain or repair the road, but at the same time demanding that the Town not enter their properties.” The judge added that the town’s maintenance of the road “has been further complicated by increasingly severe beach erosion and weather events.”

By 2022, town officials decided the only long-term solution for providing safe access to the outer reaches of the town identified earlier was to acquire additional land adjacent to the existing road, which was continuing to deteriorate. The judge noted that the town hired an engineer who determined that the existing road could no longer be maintained within its limited 16.5-foot right-of-way. Several options were considered, with town officials opting to move the road about 35 feet inland, over the DeFalco and Aschettino properties, from where it is now.

“The actual traveled roadway is proposed to be 18 feet [wide] with a two-foot shoulder on each side, with the remaining 28 feet providing the Town access to perform maintenance on the Road,” said Duddy. In all, it will measure about 50 feet in total width.

Continuing, he adds, “This will allow the residents that use the Road to retain their current access, protect the road from erosion and wave action, allow for safer travel over the road, and enable the Town to perform proper maintenance. The current section of the road will be removed and the shoulder restored once the new connection is completed.”

Town of Machiasport proceeds with eminent domain

Judge Duddy next summarizes the steps taken by the town culminating in a special town meeting on Feb. 26, 2024, in which an estimated 200 people — of which 154 were deemed eligible to vote in town affairs — packed the Fort O’Brien School gymnasium. Using paper ballots, residents voted 114-23 to take the roughly 35-feet wide strip of land needed for the road at 1759 Port Road and pay Aschettino $44,001 in damages. In a separate warrant article, residents voted 110-18 to take a similar strip of property owned by Carmine and Christine DeFalco at 1755 Port Road and pay the DeFalcos $53,001 in damages.

The Judge states that the town’s vote was followed a month later, on March 26, 2024, by attorneys for Aschettino and the DeFalcos filing a “Complaint for Review of Governmental Action challenging the Town’s acquisition of easement interests in Plaintiff’s properties by eminent domain.”

The matter was subsequently transferred to Duddy’s court and consolidated with other ongoing cases pending between the property owners and the town. Those cases, which have yet to be decided, involve claims by the property owners that the town breached the 1997 Superior Court judgment by failing to adequately maintain the 16.5-foot wide section of Port Road fronting their properties.

Following a series of case management hearings between the court and attorneys for both sides, oral arguments were finally heard via Zoom meeting three weeks ago.

Citing case law, Judge Duddy stated that the Maine Constitution provides that “private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it.” Additionally, the citation states that “the establishment of any road or way [by eminent domain] … must be for a public use and its requirement must be in response to public exigencies.”

Quoting from the same case, Judge Duddy stressed, “Three subsidiary findings are necessary to support a finding of a public exigency: ‘the taking was necessary; the property interest was taken only to the extent necessary; and the property is suitable for the particular use for which it was taken.’”

Aschettino and the DeFalcos argued that the town’s condemnation orders on their properties “must be declared null and void because there is no public exigency to support them,” the judge said, “and that the town acted in bad faith and abuse[d] its power during the taking process.” The town, in its legal response, denied the plaintiff’s claims.

The not-so-’free’ Upland Easement proposal

The properties’ owners argued that the taking of their land was not necessary because of their Jan. 22, 2024, offer to donate a 50-foot wide easement along the upland boundaries of their properties, thereby connecting Port Road to Starboard Creek Road “in exchange for the town abandoning the existing Road across their properties.” 

Judge Duddy refers to this alternative as “the Upper Easement proposal,” but it has been publicized repeatedly elsewhere as “the free road.” In reality, the only part of the offer that could have been considered “free” would have been the donation of the land. But as Judge Duddy makes clear, the expense to purchase land and secure additional rights of way from more than a dozen other property owners would be anything but free to the town.

When the “free” proposal was first raised for discussion at a public hearing on Feb. 5, 2024, the town’s attorney, Stephen Wagner, responded by saying that, while the offer sounded good on the surface, it had one major flaw. “I struggle to see how this could be called a ‘free’ proposal,” said Wagner at the time, “when they are, to put it bluntly, offering land they do not own.”

Wagner went on to explain that while Ashettino and the DeFalcos certainly own some of the land being offered, it also cuts through property owned by Annette Lasley and occupied by Jonathan Lasley. Wagner stated that Jonathan Lasley had written to the town, saying that the DeFalcos and Aschettino were offering land that would also require access rights from him.

Judge Duddy addressed the Upland Easement proposal, or so-called “free offer,” in great detail, before concluding there is nothing “free” about the Upland Easement proposal.

“The Upland Easement proposal is a longer stretch of land than the current [eminent domain] taking,” the judge wrote. He said the court estimated the length of the Upland Easement at between 844 and 950 feet long, compared to about 806 feet in the taking approved last year by town voters. What’s more, the judge determined that the Upland Easement “does not even provide a thruway.”

Duddy explained, “In order to allow travel to Starboard Creek Road, the town would additionally need to acquire public rights in, and construct a road over, the Lasley Easement. Then the Upland Easement and Lasley Easement would need to connect to Starboard Creek Road at a point well north of its current junction with Port Road in order to be viable. Both the Lasley Easement and Starboard Creek Road pose significantly increased complexity and uncertainty, compared to the easement taken and the condemnation orders.“

One of those complicating issues is the fact that Starboard Creek Road is a private road and not a public way. “As discussed at oral argument, not all of the homeowners who depend on Port Road to access their properties have a legal right to use Starboard Creek Road,” said Duddy. “Accordingly, in order to take advantage of the Upland Easement, the town would need to acquire rights from the owners of Starboard Creek Road through yet another negotiation and purchase or taking process. The process would involve the rights of more than an additional dozen property owners, instead of only two with the current taking.”

Finally, the judge wrote that “adding a lengthy section of Starboard Creek Road would make the new town road significantly longer … for a total thruway of approximately 2,428 to 2,534 feet. This portion of Starboard Creek Road would likely need to be widened and otherwise fortified to support this new use,” the judge said. “Thus although plaintiffs claim the Upland Easement would be free, the work, time, cost and effort needed to make the Upland Easement passable would likely be considerably greater than that involved in the current condemnation orders.”

Judge Duddy rules in favor of the town

After weighing arguments from both sides, Judge Duddy sided with Machiasport and against the properties’ owners, saying, “In conclusion, the court finds that as the record supports each element of the public exigency framework, [and that] there is a rational basis in the record to support the Town’s finding of a public exigency.”

Duddy went on to state, “Despite their understandable frustration about the Road moving inland on their properties, Plaintiffs have not met their burden to show that the Town made the taking in bad faith or abused their power.”

Following news of the judge’s ruling in the case, Machiasport Town Clerk Marcia Hayward said she was told by the town’s attorney that the only thing appealable in the judge’s decision was the amount of money voters agreed to pay the DeFalcos and Aschettino. She estimates that, to date, it has cost the town nearly $200,000 in legal fees fighting the suit over the past two years. Ironically, court documents state the estimated cost of the Port Road project, when first proposed in 2022, also was $200,000. Instead, that money has gone to legal fees fighting the lawsuit.

Even though litigation continues regarding the properties owners' claim that the town breached the 1997 Superior Court judgment regarding its responsibility to properly maintain Port Road, Judge Duddy acknowledged in his eminent domain ruling that the owners denied the town needed access to their property to adequately make the repairs.

Plaintiffs’ attorneys weighing options 

The MVNO reached out for comment to attorneys Laurie W. Jones and Stephen Sivisk, who represent the properties’ owners. As of press time, Siviski had not responded. 

However, Jones replied on Aug. 1, stating, “We are reviewing the Court’s ruling and considering our next steps regarding the eminent domain litigation. Claims related to breach of the 1997 Superior Court judgment and for the adequacy of compensation in the eminent domain litigation remain pending before the Court.”

Despite Judge Duddy’s critical analysis and pointed determination regarding the not-so-free Upland Easement offer, Jones stated, “We remain surprised that the Town of Machiasport has refused Mrs. Aschettino’s and the DeFalcos’ offer of free land for a road for access to all area residents. This free land is the site of the original path of travel in the area, is protected from storm and wave damage, would allow a shorter travel distance than the current or proposed route taken by eminent domain, and does not terminate in a floodplain as does the proposed route.”

Port Road with the private beach, owned by Carmine and Christine DeFalco and their neighbor Paula Aschettino, and Starboard Cove on the left. On the right side of the road are the DeFalco and Aschettino properties. (Paul Sylvain file photo)