MOUNT DESERT — The Board of Selectmen has denied a request by three property owners on Northern Neck Road that the town replace two culverts under a causeway on the road and assume permanent maintenance of the causeway and culverts.
Northern Neck is made up of a peninsula and an island, connected by a short causeway, that bisect the northern end of Long Pond. The 60 lots on Northern Neck are privately owned.
A prominent sign at the beginning of the unpaved Northern Neck Road announces: “Private road…Owners & guests only…No public water access.”
Each of the galvanized steel culverts under the causeway is 40–feet long and allows water to circulate between the eastern and western sides of Long Pond. Installed in 1983, the culverts have become a safety hazard, according to the three property owners who petitioned the town to take responsibility for them: Robert Foster, Robert Shea and William Waters.
“The exterior (exposed to weather) sections of the culverts are in observable degradation from rust,” they said in their petition. “There are large gaps where the metal is completely gone.”
Waters said his wife was seriously injured while portaging a kayak across the causeway last July.
“Her leg went through a hole in the culvert under the water and she received a major gash from the rusted metal,” he said.
In light of that and the fact that the culverts are 37 years old, the petitioners said, “It seems reasonable to assume that the strength of the buried weight-bearing sections are, at a minimum, compromised and vulnerable to collapsing.”
Waters told the selectmen last Monday, “It’s not only the residents of Northern Neck that are affected. We have kayakers that pull across that causeway every day, and people come there to fish.”
Even though Northern Neck Road is a private road, the petitioners maintain that the causeway is not privately owned but, rather, is “unregistered land” between privately owned lots.
“If the causeway is not privately held, then, in our view, the default ownership is public,” they said. “As such, maintenance of the causeway is eligible for public funding.
“In the absence of documented evidence on why the culverts were installed, we are left to conclude that the purpose…is to improve and protect the water quality of Long Pond… It is difficult to imagine a serious contention that protecting the lake’s water quality is exclusively for the benefit of the private property owners of Northern Neck.”
Public Works Director Tony Smith, to whom the petition was sent, asked attorney John Cunningham of the Eaton Peabody law firm for an opinion on the validity of the petitioner’s claims.
In his response, Cunningham noted that the petitioners said they are not a road association and, thus, have no authority to force other Northern Neck property owners to share the cost of road maintenance.
“To the extent that they are suggesting that they cannot easily change their situation, they are wrong,” Cunningham wrote. “Maine law provides an extremely simple procedure for people who share the use of a private road to choose a board or commissioner to oversee the road’s maintenance, to compel all owners who have the right to use the road to contribute fair shares to its maintenance, and to place liens on the lots of any owners who don’t pay.
“This procedure requires little more than calling a meeting and giving notice to all of the lot owners sharing the use of the road.”
Cunningham said that procedure does not require that the property owners also own the land under the road.
“Therefore, the suggestion that the petitioners have no reasonable alternative to having the town assume responsibility is clearly mistaken,” he said.
As for the petitioners’ contention that, since the causeway is not owned by anyone else, it must be owned by the town, Cunningham said, “There is no such legal principle, but the real answer is that the petitioners are wrong in asserting that the ownership of the causeway is unknown.”
He said that before the causeway was built, around 1950, the area was covered by the waters of Long Pond.
“Long Pond is a ‘great pond,’ meaning it is 10 acres or larger in size, and Maine law provides that the land under great ponds is owned by the state. Therefore…the causeway (was built) on state land…(and) is owned by the state of Maine. That does not mean that the state has any responsibility for the causeway, only that the state is the owner.”
Cunningham said that even if the private owners of Northern Neck Road offered to give the road to the town, the town could not accept it because the causeway is owned by the state.
At their meeting last week, the selectmen heard from the petitioners, as well as from Public Works Director Tony Smith and Andy Hamilton of Eaton Peabody in his role as town attorney.
Smith and Hamilton agreed that the best solution is for the Northern Neck property owners to form a road association, which would have the power to assess dues to pay for improvements such as replacement of the culverts.
According to the Maine Department of Environmental Protection (DEP), “Forming a road association can provide a way for road users to formally manage their roads in an organized and cost-effective manner.”
Hamilton told the petitioners, “I doubt that a local bank with knowledge of the membership of this road association would have any discomfort in providing financing for a culvert replacement.”
And he said that, even though the town could not pay any of the cost, “I think the town can help facilitate the expenditure of private dollars on a private project, to lend its goodwill and support and ideas.”
Smith said he would be happy to facilitate a meeting between the Northern Neck petitioners and the DEP to explore the best way to proceed with the culvert project.
The selectmen encouraged the petitioners to take Smith up on his offer, as did Hamilton.
“The DEP staff is excellent at working with the public,” he said.