Staff Writer

Precedents, not access, are at the heart of a federal suit filed regarding use of a local road, says one of the plaintiffs.

Paul Austin contends the Maine Department of Inland Fisheries and Wildlife should stop granting easements on Eastern Trail for what he believes are improper purposes.

Austin filed the suit in U.S. District Court in Portland last week along with his wife, Susan Dewitt Wilder, local resident David Paul and an association called Scarborough Citizens Protecting Resources.

The suit seeks to void an easement that will allow developer Kerry Armstrong a way to access his planned Eastern Village subdivision.

The suit names Gov. John Baldacci, Maine Inland Fisheries and Wildlife Commissioner Roland Martin, Maine Department of Environmental Protection Commissioner David Littell and U.S. Fish and Wildlife Service Northeast Regional Director Marvin Moriarty as defendants.

At issue is more than 700 hundred feet of Eastern Road near its intersection with Black Point Road. The road, which is also part of the Eastern Trail, is owned by the state as part of the Scarborough Marsh Wildlife Management Area. The trail is built on land the town acquired in a 1962 easement to reach a Scarborough Sanitary District pumping station, according to the complaint filed in court.

The new easement, granted to what was then called Ballantyne LLC, will allow developer Kerry Anderson to upgrade the road as  access to the planned Eastern Village subdivision, to be built by Anderson’s KDA Development.

By granting easements along the trail for purposes other than wildlife preservation or recreational use, Austin, Wilder, and Paul and other association members charge the department violated a 1937 federal law called the Pittman-Robertson Wildlife Restoration Act. Austin said the association has about 15 members and some are making financial contributions to help pay for the suit.

Maine used federal money in 1961 to buy the Boston and Maine Railroad land, and it eventually became the Eastern Trail. The trail extends from Kittery to Casco Bay and more than three miles pass through Scarborough.

The suit alleges the state cannot turn over any portion of the trail to create a town road without providing a parcel the same size for the same use.

The suit alleges the Inland Fisheries and Wildlife officials also violated state law by not obtaining legislative and gubernatorial approval to grant easements on the land that change its use from wildlife conservation and public access.

The suit also charges the proposed land use violates federal law and lacks proper approval for the easement. It also claims the use invalidates the Maine Department of Environmental Protection site permit for the adjacent subdivision because the easement was a basis for site approval.

The town planning board in 2008 approved Anderson’s subdivision plan for 152 units of single and attached houses and apartment units.

Town Manager Tom Hall said he is watching the case with interest and considering ways the town may become involved to help the defendants.

“There is no intention of encouraging traffic on the road,” Hall said.

Anderson, who did not return several phone calls seeking comment, has not started construction. As conditions of planning board approval he must build a new section of trail on development land to replace the section of Eastern Road now used by pedestrians and bicyclists and a second trail that connects the area to Commerce Drive.

“We are not opposed to the development. We want it done to be respectful to the trail,” Austin said.

Hall said the new section will be better suited for its intended use.

“It is better and safer than what exists today,” he said.

Austin disagrees, and said increased traffic and the need for a new trail to cross the access road to the planned development are not improvements.

“If we have to rebuild, we want to make it better,” Austin said.

Austin said complainants also are concerned about the additional precedent of the land transfer. He said he wondered how the Department of Inland Fisheries and Wildlife could refuse more requests for access easements if areas adjacent to the trail are developed.

The proposed access road connected to Eastern Road is one of two planned for Eastern Village. The other would connect to Commerce Drive, which intersects with Route 1. Plans for the subdivision were first presented to the planning board in 2005.

Austin said his discussions with Inland Fisheries and Wildlife officials regarding easements for non-wildlife preservation purposes had not been well-received. He said the suit was prompted by discovery of the federal act that provided money to buy the land in 1961.

While Austin has been vocally opposed to aspects of the development, he said the lawsuit is focused on the state’s actions.

“The development is tertiary,” Austin said.

Since 1968, commissioners for the department have granted eight easements along the trail in Scarborough, largely to allow installation of pipe for the sanitary district or nearby housing construction.

The suit alleges all but two easements violated the federal law because the state did not provide other parcels of land to be used for wildlife conservation or public access.

Although Austin currently is vice president of the Scarborough Land Conservation Trust, and Scarborough Citizens Protecting Resources member Laurene Swaney is a past trust president, Austin said the land trust has no involvement in the suit.

“It is not what they need to be involved in,” he said.

Staff writer David Harry can be reached at 282-4337.