Maine Cent. R.R. v. Maine Dep't Transp.

• Court: Superior Court of Maine
• Decided: March 12, 2004
• Docket: PENap-03-26
• Status: Unpublished

Opinion

STATE OF MAINE wiem ge exnre|acn SUPERIOR COURT FILED A ENTERMEU PENOBSCOT, SS. SUPERIOR COURT Tpocket No. AP-03-26

AMM -PE A Oia faco

ee

MAR 12 2004

MAINE CENTRAL RAILROAD, aA

Plaintite, ” )PENOBSCOT COUNTY

) v. ) DECISION AND JUDGMENT

MAINE DEPARTMENT OF __ ) “ve TRANSPORTATION, ) -

Defendant. )

APS 16 2004

Although the record and legal briefs submitted in this Rule 80C appeal are quite extensive, the issue presented to the court is actually fairly straightforward. In brief, the City of Bangor requested, pursuant to 23 MRSA §7202, the Maine Department of Transportation (MDOT) to establish a railroad crossing across tracks owned and operated by the Maine Central Railroad (MEC). No public street has yet been established for the area of the proposed crossing.

The City of Bangor is the owner of a parcel of property located between Route 2 and the Penobscot River which contains several old structures which at one time drew water from the river for municipal purposes. The property (known locally as “the Waterworks”) has fallen into disrepair. The Shaw House, Inc., has proposed to develop the property as low income housing and the City of Bangor has entered into an agreement to further this effort.

The Waterworks property is not accessible from Route 2 without crossing MEC’s railroad tracks. Accordingly, the viability of the entire Waterworks project is contingent obtaining authorization for a railroad crossing at the site. Apparently, and understandably, the City of Bangor has sought approval of the crossing before proceeding with other aspects of the project. The next step, presumably, would be to acquire the actual roadway property by eminent domain. After hearing, the MDOT approved the crossing in Rail Decision #288-D. MEC seasonably appealed the decision. MEC offers several arguments in support of its appeal. Specifically, it argues that MDOT’s finding of public exigency exceeds the agency’s legal authority and that the decision constitutes an unauthorized taking.

The authority of MDOT to lay out railroad crossings with appropriate conditions is well established. 23 MRSA §7202. MDOT has no statutory authority to take property or establish public streets or ways. Such takings are reserved to the local governmental entities. Although Rail Decision #288-D allows a crossing at the Waterworks site, it remains for the City of Bangor to actually acquire the road for the crossing by some method allowed by law. Town of Kittery v. MacKenzie, 2001 ME 170, P9; 785 A..2d 1251 (Me. 2001),

complied with those appropriate to public crossings. Accordingly, the court concludes that MDOT has not exceeded its legal authority by rendering Rail Decision #288-D.

Finally, as suggested above, the decision does not constitute an unauthorized taking in any sense. The allowance of the crossing constitutes a significant burden upon any rail operator and any governmental entity required to share in the expense. However, no unconstitutional taking occurs in this circumstance.

The Clerk may incorporate this Order upon the docket by reference.

Dated: March 12, 2004 f\ . ww) (hoo) ok.

Andfew M. Mead ! JUSTICE, MAINE SUPERIOR COURT

' - The court concurs in the conclusion that the proposed use of the Bangor Waterworks is a public purpose. Date Filed. 9/2/03 _ PENOBSCOT Docket No. __ AP-03-26

County Action &0C APPEAI, ASSIGNED TO JUSTICE ANDREW M. MEAD SHAW HOUSE, Intervenor (10/23/03) CITY OF BANGOR, Intervenor (10/23/03)

MAINE CENTRAL RAILROAD COMPANY VS.MAINE DEPARTMENT OF TRANSPORTATION

Plaintiff’s Attorney Defendant’s Attorney

RICHARDSON, WHITMAN, LARGE & BADGER MAINE DEPARTMENT OF TRANSPORTATION

ONE MERCHANTS PLAZA , LEGAL DIVISION

PO BOX 2429 16 STATE HOUSE STATION

BANGOR, ME. 04402-0758 Do. AUGUSTA, ME 04333-0016

BY: FREDERICK J. BADGER, JR., ESQ. BY: " RICHARD N. HEWES, ESQ.

BY: MARY F. KELLOGG, ESQ. a/o 3/2/04 DRUMMOND WOODSUM & MACMAHON

P O BOX 9781 PORTLAND ME 04104-5081 . BY: WILLIAM-L. PLOUFFE, ESQ Date o FOR: “~INTERVENOR; “SHAW HOUSE Entry WU | adse Dopertaese of Banutt,£2 CITY OF BANGOR (tategvesoe) « par anspo BANGOR CITY HALL ° oS

73 HAR

9/2/03 Participation Statement and App: BANGOR, ME Gasol behalf of Defendant Maine Depar- : .

P _ BY: JOHN HAMER, ESQ,

9/4/03 Notice of Assigned Justice file NORMAN Ss. HEITMANN, III, ESQ. Single Justice Assignment of Ci » referenced case is specially assigned to Justice anarew m. meaa.

/s/ Margaret Gardner, Clerk Copy forwarded to attorneys of record.

9/18/03 Motion to Intervene of Shaw House and Incorporated Memorandum filed

9/18/03

9/22/03 9/24/03 9/25/03

10/20/03 10/23/03

10/23/03

'

> File presented to Justice Mead for review.

by Shaw House with proposed Order. Request for Hearing on Motion to Intervene of Shaw House filed.

Certification of Record filed by Defendant Maine Department of Transportation. (Exhibits 1 through 19 attached)

Notice and Briefing Schedule 80C Appeal of Final Agency Actions filed. Copy forwarded to all attorneys of record,

Motion to Intervene by City of Bangor & Incorporated Memorandum filed by City of Bangor, together with a proposed order.

File returned by Justice: Mead. Orders issued.

Order filed. This Court hereby grants the City of Bangor's Motion to Inter in the above-captioned matter. (Mead, J.) (Order dated 10/22/03) Copy forwarded to attorneys of record,

Order on Motion to Intervene of Shaw House filed. The Motion of Shaw House to Intervene in this action is hereby granted. (Mead, J.) (Order

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