Testas parking lot easement upheld by Supreme Court



PORTLAND — The state’s highest court has affirmed a 36-year-old agreement allowing the owners of two properties abutting Testa’s Restaurant in Bar Harbor to access those properties through a parking lot owned by the eatery.

Testa’s was appealing an October 2013 decision by the Maine Supreme Judicial Court that upheld a 1978 agreement with the former owners of the abutting properties. The court handed down the decision following a three-day bench trial held on the court’s Business and Consumer Docket.

In 1977, Testa’s made plans to expand the parking lot and build a concrete retaining wall that would block access to the properties at 23 and 27 Main Street. The people who owned those properties filed a lawsuit alleging that the construction project would block traditional access to the rear of their properties.

The parties negotiated an agreement, which was signed in June 1978. In that document, Testa’s conceded that the abutters “shall have access by foot or motor vehicle over lands of Testa to the westerly side of their land.” In the event Testa’s did erect a fence or gate or otherwise impede that access, the restaurant was to provide a method for the abutters to continue their traditional access.

Jack and Sherri Coopersmith, owners of Jack’s Jewelry, bought one of the abutting properties in 2005. In 2010, the town passed an ordinance that would no longer require businesses to provide a minimum number of parking spaces for customers. This, the Supreme Judicial Court said, cleared the way for Testa’s parking lot to be developed. Testa’s then filed a lawsuit against the Coopersmiths and Joan Purcell, the other abutter, seeking a judgment that the abutters did not have a right-of-way over restaurant property.

In December 2012, the Coopersmiths became owners of Purcell’s building. Testa’s complaint was transferred to the Supreme Judicial Court’s Business and Consumer Docket. The case was heard in September 2013 with a judgment entered on Oct. 1 of that year, confirming that the agreement with the former abutters transferred to the Coopersmiths.

In January 2014, the Supreme Judicial Court denied Testa’s motions for a new trial and to alter or amend the final judgment. Testa’s then filed an appeal. The court filed its decision on Tuesday.

In the appeal, Testa’s argued that the 1978 agreement was not enforceable because one of the five abutting owners did not sign the agreement. The court found otherwise, stating that her signature was not needed to establish a binding agreement and that there was no evidence that she had concerns about the agreement.

The restaurant further argued that the agreement could be read as conveying “a license and not an easement and is therefore ambiguous.” Here, again, the court disagreed, saying that, during the September 2013 trial, the trial court had acknowledged that both parties were of the opinion that the agreement, if valid, conveyed an appurtenant (i.e. assessory) easement.

Testa’s also contended that the court erred in excluding testimony from Douglas Chapman, the attorney who drafted the agreement. That argument also failed to sway the court.

In conclusion, the court found that the 1978 agreement “is enforceable against Testa’s and granted an appurtenant easement” to the Coopersmiths.

Mark Good

Mark Good

Reporter at Mount Desert Islander
Mark Good

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