Eminent domain action in Belfast can be a ‘nuclear blast,’ law school professor says

Eminent domain action in Belfast can be a ‘nuclear blast,’ law school professor says

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Aug. 9—BELFAST, Maine — The city of Belfast is moving closer to using eminent domain law to get an easement across a disputed mudflat, a move that would ensure a Norwegian aquaculture company needed access to Penobscot Bay.

It would also benefit Belfast, city officials said earlier this week.

But that doesn’t mean the strategy is necessarily straightforward or a guaranteed move forward, according to Jeff Thaler, a professor at the University of Maine School of Law. Thaler said recently that eminent domain law is much more complicated than the short mention in the Maine Constitution might suggest.

In Article I, section 21, it says only that “Private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it.”

But the constitution’s relative brevity on eminent domain is balanced by the need to carefully interpret each word, Thaler said. The Maine Supreme Court has interpreted the phrase “public use” to be a limit on the authority to acquire private property by taking, or eminent domain, he said. That means that the general public has to have access to the property — not just particular individuals.

“The law court has previously interpreted that to mean that the use of eminent domain power for things like correcting faulty lot lines or private title deficiencies doesn’t count,” Thaler said. “It’s entirely possible that [those with claims] would sue the city of Belfast in terms of whether this [would] essentially extinguish whatever theoretical rights they have in the intertidal zone for the purposes of public use. I don’t know how the court would look at it.”

City officials have said that securing the easement would allow Belfast to reap the benefits detailed in a 2018 agreement between the city of Belfast, Nordic Aquafarms and the Belfast Water District. Those benefits — described earlier this week by city attorney Bill Kelly — include providing the city with land used for recreation, including the popular Little River Trail, and the water district with enough guaranteed revenue to replace aging infrastructure and bring a new well online. City officials also believe the salmon farm will provide Belfast with needed tax revenue and new jobs, as well as giving the city land for a new waterfront park.

“You cannot argue against the public benefit here,” Councilor Neal Harkness said Tuesday night during a regular council meeting.

Clearing the title to the disputed intertidal land is one of the city’s stated goals of the eminent domain action. The ownership of the mudflat is being litigated right now at Waldo County Superior Court — a case that has been seen as critical to the siting of the proposed $500 million land-based salmon farm.

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