YORK, Maine — The town Selectboard is considering reigniting a legal battle to realign its boundary with Kittery, despite officials in Kittery urging York's board to halt what they call "aggressive" actions.
York officials assert a swathe of land south of the town's border in Kittery appears to belong to the town of York.
Board members remain undecided on pursuing legal action after last month’s town line perambulation proved their claim. Anticipating potential litigation, Kiittery Town Attorney Stephen Langsdorf sent a letter to the York Selectboard on Monday, urging its members to reconsider.
Langsdorf wrote the effects of realigning the border would dramatically impact Kittery residents and businesses. Thirteen homes, as well as businesses, would be impacted, and it would raise important questions about property rights and taxes.
“For all of the above reasons, the Town of Kittery implores the Town of York to end this process now,” Langsdorf wrote. “We are towns that should be working together cooperatively, not fighting over an issue that was resolved amicably over 150 years ago.”
York Selectboard Chairman Todd Frederick said what York does next would be placed on a future agenda.
“I don’t know where the full board will go at this point,” Frederick said. “It will be up to an agenda item (to decide) what do we see as our next steps?”
Previous story:Kittery and York officials 'perambulate' towns' disputed borders
Perambulation report supports York’s claim, surveyor says
York officials have been looking at realigning the border with Kittery since a development approved in Kittery revealed a discrepancy over where the town boundary existed. Since then, York has contended records show York's boundary line as being a straight line from near Brave Boat Harbor to the Kittery and Eliot border. That line is south of the currently used border described as “meandering” by surveyor Christopher Mende, separated by between approximately 85 and 95 acres.
The town of York filed a lawsuit in 2022 in York County Superior Court asking a judge to appoint three commissioners to perambulate, or inspect the border, and set a new official boundary line. The case was dismissed without prejudice, with Judge Wayne Douglas writing the perambulation was necessary before filing their complaint.
Monday, the York Selectboard heard from Mende, who said only the state Legislature could alter town border lines, ruling out the legitimacy of the line currently in use. He pointed the straight line established as a "legislative boundary" in 1653 and said while evidence of the other boundary's use appears going back to 1794, the northern boundary was never authorized by a legislative body.
Representatives of both towns said it may be the first perambulation since 1853, though in prior years they were conducted regularly. Tuesday, Frederick and fellow board members Robert Palmer and Marla Johnson said the board will make a decision together on what to do next. Selectboard member Mike Estes said he was already prepared to vote in favor of asking a judge to again appoint commissioners to reestablish the town line.
“If somebody built something in your backyard, would you just hand the land over to them because you made a mistake?” Estes said.
Kittery officials oppose 'aggressive' action by York
Kittery officials have been opposed to litigation by York that would result in a change of the town border. In June, Kittery's attorney Langsdorf called the town “aggressive” in its actions. Langsdorf argued in his July 15 letter to the Selectboard that the fact the towns have maintained the current border without perambulating since 1853 indicates there was “no dispute as to the location of the boundary.”
Langsdorf pointed to numerous scenarios that would make legal action by the town of York problematic for those living and working on the border. He wrote the towns of York and Kittery have developed their communities based on a longstanding understanding of where the boundaries lie.
The 13 homes that would be moved from Kittery to York were all built well after the 1853 perambulation, according to Langsdorf. He wrote three of those homes and more than one business would be split by the proposed boundary, meaning the structures would be in both towns.
Three homes impacted are also in a subdivision approved by the town of Kittery, according to Langsdorf. He wrote changing the line would affect their legal rights and responsibility as owners and cause complex title issues.
Langsdorf said York and Kittery would spend hundreds of thousands of dollars in legal fees if the litigation went forward. He wrote York’s “deliberate choice to forego over 40 statutorily required boundary perambulations since 1853 will bar proceedings to change the boundary at this time.”
Langsdorf also said York has yet to fully explain why it has pursued a change in the town boundary line given those expected challenges.
“The very biggest question here is why is this even being considered?” Langsdorf wrote. “No explanation has ever been offered to Kittery as to why a disruption of this magnitude is even being considered by a neighboring town.”
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Estes disputes York is acting aggressively. He said the board is only “trying to rectify something that hasn’t been right for a long time.” He said his board and Kittery officials are acting in the best interest of the taxpayers they each represent. He also said some residents living on the border in Kittery may benefit from the boundary being moved.
“If the land is rightfully the town of York’s, I don’t think you sit there and give it to the town of Kittery without some type of tradeoff,” Estes said.
That said, Estes believes concerns about the impact on landowners by the town of Kittery could be settled collaboratively, even if a court's appointed commissioners determine the town line must move north. Officials talked at the perambulation whether the Aroma Joe’s in Kittery would need to change its name or move due to an ordinance against chain restaurants in York. Estes believes they could be grandfathered.
“I think that there’s some negotiation room,” Estes said, “to rectify it as much as possible.”
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