FREEPORT — The Island Rover Foundation has been ordered to pay the town more than $36,000 for attorney fees and costs associated with litigation that dates back to 2014.
The foundation, however, filed a motion for further finding of facts. The town has not yet submitted its opposition to that motion, but has a week left to do so.
The town sued the foundation for allegedly violating a 2014 consent agreement that said the ship must be moved from the town’s medium density residential zone, where Harold Arndt began building it more than 20 years ago. Construction was allowed until Arndt put the project under the auspices of the nonprofit foundation in 2005.
Last August, the vessel was moved about 30 yards from Lower Flying Point Road to private Bucknam Road, adjacent to the original property. Both spots are in the same residential zone.
Last October, Superior Court Justice Thomas Warren ruled that the foundation had failed to purge itself of contempt following the court’s June 30, 2017 order.
According to the order, if the foundation failed to comply with an Aug. 22, 2017, deadline to move the vessel from Bucknam Road, it could be fined $500 per day until the vessel was moved to a location that conforms with local zoning laws.
After being unable to obtain permits required for launch, the 113-foot schooner remains landlocked on Bucknam Road.
On July 3, Warren ordered the foundation to pay the town more than $36,000.
Carter Becker, partial owner of the Island Rover, will not be subject to the fines because he was not named in the Sept. 2, 2014, order and has not been found in contempt.
“In the court’s view, it is unrealistic to assume that Becker and the Island Rover Foundation have the ability to resolve these issues and launch the vessel,” the order states.
On July 11, Town Attorney Wendy Paradis filed a motion in Cumberland County Superior Court seeking compensatory fines for expenses incurred if the town seeks and obtains possession of the vessel in lieu of a “coercive fine of $500 per day.”
Later that day, Warren ruled in a written motion that coercive fines would not be imposed at this time and the town has until July 24 to respond to the foundation’s motion for further findings of fact.
According to the July 3 order, the court does not accept arguments made by the foundation and Becker that the foundation’s “attempt to purge itself of contempt have been improperly frustrated by the town.”
The council denied an over-limit moving permit to launch the boat last November at the end of Shore Road, which is a private drive. The council asked the foundation to reapply for a permit once additional information was gathered, including an agreement with property owners on Shore Road, to allow the vessel to cross en route to the launch site.
The Shore Drive Neighbors Road Association considered a mediated meeting with Becker, but later withdrew its offer because it determined a move could cause “irremediable harm” to their properties and trees.
The July order stated that, if the town’s denial of a permit was “invalid,” an appeal could have been filed, but the foundation and Becker never appealed.
“The Town is not responsible for the opposition of landowners at the proposed launch site,” the order states. “If those landowners do not have a legal basis to oppose Becker’s proposed launching plan, (he) can seek legal recourse; it is significant that he has not done so.”
Further, the order states that if moving the vessel to a conforming location cannot be accomplished by launching it, “it can be met by disassembling the hull and disposing it as a scrap or reassembling it.”
The court found that, despite being given several extensions, the foundation had not moved the vessel and therefore, “there is no further reason to delay the imposition of contempt sanctions.”
According to Paradis’ motion, the town reserves the right to seek future attorney’s fees and costs in connection with the motion for contempt. The July 3 order also states that the town can seek compensatory fines for expenses incurred if it seeks and obtains an order allowing it to take possession of the vessel in order to move or dismantle it.
Becker’s attorney, Benjamin Leoni, said on July 17 that, once the town files an opposition to the motion for further findings of fact, the foundation will be given a week or two to reply.
The court will then issue an order on whether to issue additional findings of fact.
“Once that happens, you have a real, final judgment and it’s up to the Island Rover Foundation whether they want to file an appeal with the Maine Supreme Court if it doesn’t go their way,” Leoni said. “Or if it does go their way, the town would also have the option of appealing.”
Jocelyn Van Saun can be reached at 781-3661, ext. 183 or jvansaun@theforecaster.net. Follow her on Twitter @JocelynVanSaun.
The Island Rover Foundation has been ordered to pay the town more than $36,000 for costs and attorney’s fees.
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