THE MERE POINT property came under town ownership in 2011.

THE MERE POINT property came under town ownership in 2011.

BRUNSWICK

Citizens who sought to create a public park at Mere Point have filed a civil action against the town, asserting the council did not adhere to a municipal charter that, they claim, stipulates a citizens’ petition be the subject of a public hearing and subsequent referendum vote.

The case, filed Feb. 21 in Cumberland County Superior Court, hinges on the interpretation of the town charter.

David A. Lourie, attorney for the petitioners and listed in the suit as Brunswick Citizens for Collaborative Government, said Monday he is highly confident the plaintiffs will prevail in the case.

“I wouldn’t have filed if I didn’t think we would win,” he said.

Lourie added, however, there is some truth in the adage you can’t fight city hall. He explained that it will likely be a race to see how quickly the town can sell the four-acre waterfront property at 946 Mere Point Road prior to a court’s decision on the appeal of the town council’s vote to sell the land. He said they are in a state of legal limbo until the court rules on how to proceed.

The property came under town ownership in 2011 due to a tax foreclosure, and the council voted 7-2 in February to sell the land without considering the motion to create a public park. Several months earlier, in September, the council narrowly voted 5-4 to sell the real estate, which includes a house and is assessed at $221,900.

The lawsuit seeks a public hearing on the proposed ordinance to create a park and a subsequent referendum on the proposal be scheduled. The court action alleged the town’s narrow reading of the charter has a chilling effect on citizens’ First Amendment rights to initiate an ordinance.

Petitioners Robert Baskett and Soxna Dice collected and submitted more than 1,000 signatures in January that supported adding the Mere Point property to a list of ordinances, seeking the creation of a park. The action was a response intended to overturn the council’s decision to sell the property months earlier. Dice, in the lawsuit, claims the town charter calls for a public hearing and a referendum election for what is known as police power ordinances within 30 days of receiving signatures.

Attorney for the town, Stephen Langsdorf, said the plaintiffs are focused on the wrong portion of the charter, explaining that a police power ordinance is an ongoing set of principals adopted by a town to promote the welfare and health of the town, but said this case does not apply because the council’s decision was an order, not an ordinance. He said the suit against the town skips ahead and disregards the first section of the charter which stipulates the difference between an order and an ordinance.

Langsdorf said the thrust of the town’s argument centers around the fact a council can act in two ways — either through an ordinance, which is an ongoing law and subject to challenge via petition; or through an order, which is a one-time action and not open to petition. He argues the decision to sell the property was an order, and therefore, not subject to be overturned by referendum. The only way for the order to be changed, he said, is for the council to voluntarily put the decision to a citizen vote, which they are not obligated to do.

Langsdorf said cases like this are typically resolved within three to six months. When asked if the suit would be considered moot if the property was to sell before a ruling was issued, Langsdorf said he would argue yes, but said the plaintiffs have asked that the court still rule whether the action was properly handled by the council. Langsdorf said to his knowledge there is not a prospective buyer for the property at this time. A message left for Town Manager John Eldridge seeking confirmation about the status of the property was not immediately returned.

The filing also contained a town committee opinion on creation of a public park with intertidal access, highlighting that the town’s Marine Resources Committee cited specific attributes to a park. It includes the value of the town’s clamming resource, at $1 million annually, and access and ownership of an intertidal zone for the promotion aquaculture business, described by the committee as one of the fastest expanding industries on the coast. The committee also said public access to the water would help offset the shrinking number of water access zones for shellfish harvesters, a result of development on the shore area.

The parties are also at odds concerning Lourie’s filing of a lis pendens notice on the property, which is used to alert a third-party, such as a prospective buyer, to pending litigation involving real estate. Lourie said in court papers the notice is reasonable because a buyer should be aware more than 1,000 of their potential neighbors preferred the property be a park, as opposed to their home. Langsdorf asked for the court to cancel the notice, arguing it is improper as the title and interest in the property is not being disputed and is not part of the appeal and complaint. A judge has not issued a ruling on the notice or the complaint.

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