Lawsuit seeks to force sale of working waterfront site on Orr’s Island

Numerous co-owners of a sliver of working waterfront on Orr’s Island, which has been treated as a public amenity for generations, may have to sell their shares soon if one of them prevails in court.

A lawsuit filed by part-owner John E. “Jack” Sylvester Jr. that seeks to force a sale of the property appears headed for trial later this year, following a failed attempt to resolve the dispute through mediation.

Sylvester, of Orr’s Island, wants to become the site’s sole owner, according to court documents. Nearby residents say they fear such a result would mean the end of public access for storage of fishing gear, as well as swimming, recreational fishing, picnics on the beach and other longtime community uses for the property.

“It’s been a place of solitude and joy, and this stands to be taken completely away,” said Orr’s Island resident Penny Wilson, who said her family and several others have used the site for decades. “He (Sylvester) will gate that off, and he will not allow people on there.”

Sylvester declined to be interviewed for this story, citing the ongoing legal dispute. All of the named defendants, through their attorneys, also declined interviews.

The property, known as Barleyfield Point, is fractionally owned by at least 16 people, including Sylvester, according to a lawsuit filed in spring 2022 in Cumberland County Superior Court and later transferred to the Maine Business and Consumer Court. The site is described in Sylvester’s lawsuit as a “narrow, rocky, mostly tidal projection into Lowell’s Cove” that was conveyed by its original owners to 12 local residents in the late 1800s.

The original owners, Fidelia Prince and Alice G. Robinson, sold the property in 1891 to members of four families living close to Barleyfield Point, the lawsuit says.

“It was used in support of their part-time, small-scale fishing activities: lobstering, shellfishing, and gill netting,” it says. “Three owners operated nearby general stores, two others summer boarding houses. Four fish houses and wharfs were built on the eastern side of the Point for storage, repair of gear, and processing of catch.”

The property owners are “tenants in common,” which means each of them owns a share of the entire property and can sell or give away their share without permission from their co-owners, similar to shareholders in a company.

Fractional shares in the roughly one-third-acre parcel have been passed down through the generations, with Sylvester owning the largest share of about one-third of the property at the time he filed suit. Defendants named in the legal complaint own shares ranging from one-ninth to 1/36th of the site.

The lawsuit has drawn criticism from some area residents and a local working waterfront advocate who said such cases threaten the future viability of “discreet” wharves that remain vital to small commercial fishing operations in Maine. The site is zoned for commercial fishing and is being used for that purpose by Penny Wilson’s husband, Mark Wilson, with permission from co-owner Brian J. Black.

Sylvester is asking the court to force Black and the other co-owners to sell their shares to him, arguing that the property is “unmanaged, unsecured and in deteriorating condition” with too many owners to manage effectively.

But Penny Wilson questioned why, after all these years, Sylvester decided it was necessary for him to take full ownership of the site.

“It’s disturbing to all of us,” she said.

Facts in dispute

Sylvester’s legal complaint describes a property that was originally intended to support small-scale commercial fishing activities but has fallen into disrepair because of disuse and neglect.

“After 130 years, the original use of Barleyfield Point by related parties for small-scale commercial fishing, as tenants in common, no longer exists in practice, nor remains viable in concept,” the complaint says. “There is no communication or interaction among (the site’s) dispersed owners dealing with the management, use, and security of the property.”

It adds that uncontrolled access and use of the site by non-owners and visitors poses a liability risk to the property owners, and that the property’s low tax burden and revenue potential have given the inherited owners little incentive to invest in maintenance and repairs.

A reporter’s visit to the property revealed that one of its three small piers was dilapidated and looked potentially hazardous to walk on. There was no fence or other barrier around the pier to prevent public access. An adjacent fish house was in similarly bad shape.

But other portions of the site, including two piers and fish houses, were in good condition. One pier appeared to be in active use for commercial fishing. Scores of lobster traps and buoys were stacked and piled neatly around the property.

The lawsuit doesn’t deny that Barleyfield Point is used for fishing activities, but it says none of the site’s co-owners use it for commercial fishing.

In court filings, defendants in the case have disputed some of Sylvester’s claims and argued that there is no compelling legal reason to force them to sell property their families have owned, used and paid taxes on for generations.

The defendants include Gerald E. Stilphen, a Virginia resident who owns a 1/18th share and has asked the court to dismiss the case.

“I own my deeded 1/2 of 1/9 share as handed down to me from my grandfather through my father to me,” Stilphen wrote in a July 2022 response to the complaint. “I pay my fair share of the property taxes each and every year. I regularly use this property that has been deeded to me.”

Stilphen suggested that if Sylvester is unhappy with the property’s ownership arrangement, “the Plaintiff should consider selling (his) share rather than compel a well-respected court of law to force the Defendants to sell their shares.”

Property co-owners Joanne Choate, Mary Dee Grant and Frederick B. Hatch III submitted a joint response to the court in June 2022, also asking it to dismiss the lawsuit.

“The property in question has served as a common area and should stay a common area,” their statement reads. “The sale of the property to (the) Plaintiff would disproportionately provide more value to (him) as an owner of nearby land.”

Harpswell Assessor’s Office records show that a Sylvester-owned entity called Bretcove Holdings LLC owns a roughly one-fifth-acre site directly abutting Barleyfield Point to the north. Sylvester also owns a 2-acre site across the street, where his sons operate a business, Sylvester Stump Grinding, at 27 Lowell’s Cove Road.

Another partial owner, Craig Ramsay, told the court in his written response to the complaint that any forced sale of the property would be premature because of an ongoing boundary dispute involving Barleyfield Point and the abutting property owned by Sylvester.

Ramsay told the court that Sylvester has claimed the border of his adjacent land overlaps part of a dock owned by Ramsay on Barleyfield Point, which Ramsay disputes.

“Sylvester’s further assertion that the boundary dispute is essentially ‘no big deal’ also cannot be accepted,” Ramsay’s response states. “Since 1996 Sylvester has known of his … wrongful claim on the boundary and that in fact the boundary does not cross through Ramsay’s dock. Arguing that it can be dealt with outside the context of this litigation is inappropriate.”

Sylvester responded in another filing, arguing that the boundary dispute would become moot if the court compels the other landowners to sell him their shares.

Broader implications

Orr’s Island resident Monique Coombs said Barleyfield Point is one of many small, “discreet” working waterfront properties in Maine that are under constant threat of being lost.

Coombs is director of community programs for the Maine Coast Fishermen’s Association, an industry-funded nonprofit that seeks to preserve Maine’s fishing communities for future generations. She said there are many small properties in Maine like Barleyfield Point that are used by only one or two commercial fishermen, and that such sites are a dwindling resource in the state.

“Getting funding to protect them, or even understanding who to go to to be able to conserve them, is incredibly difficult, and Barleyfield is one of those spaces,” Coombs said.

It’s not uncommon for such sites to be partially dilapidated, she said, because fixing them up is expensive, and there’s no public funding available. Still, Coombs said the solution isn’t to ask a court to kick property owners off their land.

“The other thing about those types of properties is that when they’re shut down and fishermen can’t use them anymore, it puts more pressure on the larger working waterfront properties,” she said.

Paul Plummer, Harpswell’s harbor master and marine resources administrator, said he isn’t intimately familiar with the lawsuit and isn’t taking a side. Still, he noted that the loss of working waterfront in general will only exacerbate the challenges faced by Maine’s independent commercial fishermen in the form of increasing property values, environmental regulations and competing marine uses such as offshore wind.

Barleyfield Point is zoned “Commercial Fisheries I,” which means its owners would not be allowed to convert the property to something other than marine uses without being granted a zoning change by the town.

Still, Penny Wilson said she is aware of several locals, including her husband, who use Barleyfield Point for fishing at no cost, and it’s likely Sylvester would want those fishermen to start paying a fee to use it, if he let them use it at all.

“That cove has been open for everyone to use,” Penny Wilson said. “Nobody has ever told anyone that they can’t be on that point except for Jack Sylvester and his wife.”

A three-day bench trial — in which a judge, rather than a jury, decides the case — is tentatively scheduled for 8:30 a.m. on Wednesday, Nov. 29, at Cumberland County Courthouse in Portland. Superior Court Justice Thomas McKeon has been assigned to adjudicate.

Have a comment or news tip? Email J. Craig Anderson at craig@harpswellanchor.org.