A courtroom trial over the future of a sliver of working waterfront on Orr’s Island has ended in a compromise that will place the property under the permanent stewardship of a nonprofit to preserve public access.
On Thursday, May 16, parties to the case preempted what would have been the third day of testimony by reaching a settlement agreement that involves creating a nonprofit called Friends of Barleyfield Point to purchase the site from its many fractional owners for $345,000, the property’s total appraised value.
The site, known as Barleyfield Point, is 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. Since then, shares have been passed down over generations such that at least 100 people now own small fractions of the roughly one-third-acre property, litigants said.
A lawsuit filed in 2022 by co-owner John E. “Jack” Sylvester Jr., of Orr’s Island, had asked the court to force a sale of the entire site to him following a failed attempt to resolve the dispute through mediation. He had described the property in court documents as “unmanaged, unsecured and in deteriorating condition” with too many owners.
But many of the site’s co-owners filed their own joint claim asking the court to force Sylvester to sell his shares to them. They had feared the loss of public access for fishing gear storage, as well as swimming, recreational fishing, picnics on the beach and other longtime community uses for the property.
During the bench trial, in which a judge decides the outcome rather than a jury, Sylvester testified that he never intended to take away that access, but his assurances seemed to leave the other litigants unmoved.
After two full days of testimony during which attorneys for each side argued over the property’s value and sought to poke holes in their opponents’ arguments, the parties came together to reach a deal. As a result, what could have ended in anger and tears was instead capped off by smiles and handshakes.
“Today has gone a little bit differently than expected, and I’m glad to hear that the parties have been talking and reached a resolution,” said Superior Court Justice Thomas McKeon, who presided over the Portland trial. “Overall, a resolution is a really good thing, and it benefits everybody.”
Settlement details
Barleyfield Point has been enjoyed by locals as a public amenity for generations. Its original owners, Fidelia Prince and Alice G. Robinson, sold it in 1891 to members of four families living nearby, according to court documents filed in the now-resolved lawsuit.
“It was used in support of their part-time, small-scale fishing activities: lobstering, shellfishing, and gill netting,” Sylvester’s legal complaint explained. “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 site’s 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 the other co-owners, similar to shareholders in a company.
Sylvester owns the largest share of about 44% of the land, as well as a separately deeded wharf and fish house on the site. Defendants named in the lawsuit hold shares ranging from one-ninth to 1/36th of the site, as well as two other onsite wharves and fish houses owned by local residents Craig Ramsay and Brian J. Black.
The litigants said there are other owners living out of state who own even smaller shares of the site, some of whom have yet to be identified. Under the settlement, a portion of the sale price will be held in escrow to pay those co-owners if they come forward within the next year, and public notices will be issued to try to inform them.
Sylvester will receive $160,000 from the nonprofit for his land, wharf and fish house; Black will receive $45,000; and the other co-owners will receive a share of the remaining $140,000 based on what fraction of the property they own. Ramsay will not receive additional compensation for his wharf and fish house, which are in a state of disrepair.
No information was provided about where the purchase money would come from or who would lead the nonprofit. The defendants had brought up the concept of a nonprofit to own and manage the site in their earlier testimony.
Access preserved
The lawsuit had drawn criticism from some area residents and a local working waterfront advocate who said such cases threatened the future viability of “discreet” wharves that remain vital to small commercial fishing operations in Maine. The site is zoned for commercial fishing and has been used for that purpose in recent years by at least two locals with permission from Black.
The new nonprofit will be required to preserve lawful public access to the site in perpetuity, according to the parties’ attorneys. Peter Murray and Michael Traister of Portland law firm Murray, Plumb & Murray represented Sylvester, while independent Brunswick attorney Judy Metcalf and William Kennedy of Portland law firm Drummond & Drummond represented the other co-owners.
The Maine Coast Fishermen’s Association has agreed to serve as the nonprofit’s fiscal sponsor, its director of community programs, Monique Coombs, testified during the trial. A fiscal sponsor is an established nonprofit that provides administrative and financial oversight to the new nonprofit, allowing it to operate under its tax-exempt status and receive donations.
Sylvester, Ramsay and Black will retain the use of their wharves and fish houses, although Ramsay will be required to tear down his aging facilities and rebuild them slightly south to resolve a boundary dispute with Sylvester, who owns an adjacent property to the north.
Sylvester and Ramsay declined requests for comment after the trial’s resolution, but Black expressed relief that the outcome would allow him to make good on assurances to the previous owner of his wharf that he would preserve the site for future generations.
“I made a promise to Ernest Hillman, and I kept it,” Black said.
Black’s daughter, Pamela Black-Blampied, agreed that the settlement was a positive outcome to the legal dispute.
“I am so relieved and just happy that it gets to be the way it’s always been,” she said.
