This story appears as part of a collaboration to strengthen investigative journalism in Maine between the BDN and The Maine Monitor. Read more about the partnership.
MACHIASPORT, Maine — A shorefront road in Starboard at the Point of Maine remains at the center of a decadeslong dispute over its ownership and maintenance.
The town now faces a motion for a new trial filed in late August by Starboard residents Carmine and Christine DeFalco and Paula Aschettino, who previously alleged that Machiasport failed to comply with an agreement governing the road.
After a civil trial in May, the court issued a judgment in favor of Machiasport, finding that the town complied with an earlier ruling recognizing its ownership of the easement under certain regulatory conditions. The town announced the judgment on Facebook in July.
READ MORE COVERAGE
In their motion, filed in late August in the Business & Consumer Docket in Portland, Carmine DeFalco and the other plaintiffs allege that the town failed to disclose a relationship between District Court Judge Michael A. Duddy and Town Clerk Marcia Hayward, a key witness for Machiasport.
Portland lawyer Keith Richard of Archipelago Law Team filed the motion.
The road has gone by many names over the years, including Starboard Road, Starboard Island Road, Shore Road, Beach Road and Port Road.
In a July Facebook post, the town said that Duddy, who was appointed by then-Gov. Paul LePage in January 2017, had ruled in the town’s favor in the decadeslong dispute over the road’s ownership in Machiasport.
“We would like to share the news that the Court has found that the Town of Machiasport complied in all respects with the 1997 judgment governing its responsibilities for the Port Road in Starboard. The Court has entered a judgment in favor of the Town,” the post said.
The plaintiffs dispute that conclusion. They allege that the road’s deteriorating condition remains an ongoing problem and say the town has not fully complied with the 1997 settlement, which required it to follow an improvement plan developed with the assistance of James Beyer of the Maine Department of Environmental Protection to stabilize the right of way.
The improvement plan, which Carmine DeFalco provided to Monitor Local, requires the town to take steps to prevent erosion, including installing riprap in all areas not protected by natural bedrock. DeFalco told Monitor Local that the town had not completed that work on his property.
During a tour of the property, DeFalco pointed to locations where riprap had not been installed. He said the area is prone to flooding and erosion because of a steep granite ledge.
The question of ownership first became a legal issue in the late 1980s, when resident Bruce Sprague allegedly used a bulldozer to clear a stretch of his neighbor’s property and create the road he claimed was his right of way, according to court filings. Sprague died in 2005.
Court records and case files allege that the work was done without the property owner’s permission and did not comply with state and local laws, ordinances and environmental requirements enforced by agencies including the Maine Department of Environmental Protection.
Beyer, who works in the Department of Environmental Protection’s Division of Enforcement and Field Services within the Bureau of Land Quality, investigated the road’s compliance with the department’s standards and identified several concerns.
In an official letter, Jeffrey Lovitt, a lawyer who represented a group of landowners in lawsuits against Sprague during the 1990s, wrote, “While certainly the determination by the Department of Environmental Protection is not definitive as to the issue of legal access, at least there was a preliminary determination that Mr. Sprague had no legal right to use the ‘right of way.’”
By the mid-1990s, the initial lawsuit had run its course. Following a state investigation, the homeowners, Sprague and the town reached an agreement under which Machiasport would assume responsibility for the road’s right of way. At the time, the road was surveyed as a 16.5-foot-wide stretch of gravel running along the shoreline.
Under the agreement, Machiasport became responsible for correcting the environmental problems identified by the state as a condition of assuming responsibility for the right of way.
In July, the court issued a judgment in favor of the town in a lawsuit brought by the DeFalcos and their neighbor, Aschettino. The plaintiffs alleged that the town had violated the earlier agreement, including by failing to maintain the road.
Duddy found that the town had complied with all provisions of the Starboard improvement plan, which was drafted in 1994 and incorporated into the 1997 agreement. Those provisions included maintaining access to homes and property at the Point of Maine and Starboard Island, preventing erosion along Beach Road, and preserving historic Beach Road and Starboard Beach for future generations.
The plan also called for permanent riprap in areas not protected by natural bedrock. It specified using granite ledge with a weathered face from the Point of Maine to create a natural appearance, placing the granite in designated areas according to an approved cross-section plan, and installing filter fabric to prevent silting.
The plan required workers to dig a drainage ditch along the inland side of the road so water could flow into new culverts. It also called for removing a protruding ledge identified in the plan and blocking a natural drainage channel.
The first phase required the designated contractor to complete all work except the riprap installation as soon as the contractor could bring equipment to the site. The plan estimated that the work would take two days.
The second phase of the plan would be required only if there was not enough granite to complete the work. In that case, the remaining work, including the remaining riprap installation, would be completed the following year.
In a new motion filed by Carmine DeFalco, his wife, Christine, and their neighbor, Aschettino, Richard asserts that “a connection between the Town Clerk Marcia Hayward and the jurist in this matter” was not disclosed to the plaintiffs. The jurist is Duddy.
According to Richard, the plaintiffs became concerned after learning that Hayward and Duddy had been high school classmates several decades before the trial. The motion notes that Hayward served as a key witness for the town. It also states that Hayward and Duddy grew up in Calais, lived near each other and had family members who worked in law enforcement.
The plaintiffs’ motion argues that the connection required Duddy to recuse himself because, under state law and judicial standards, “A judge shall disqualify or recuse himself or herself in any proceeding in which the judge’s impartiality might be reasonably questioned.”
Richard argues that the court can and should revisit the judgment before entering it as final.
In an email shared with Monitor Local, Carmine DeFalco said he grew up in New Jersey and worked at the World Trade Center. He said he became a first responder after the Sept. 11, 2001, terrorist attacks and later moved to Machiasport.
DeFalco said the attacks prompted him to seek a safer place for his family. When he bought a house in Starboard, he said, he believed the original agreement between the town and the Department of Environmental Protection had resolved questions about the right of way and road maintenance.
By the time he moved in, however, the town had expanded the road from the original 16.5-foot easement conveyed to the town to more than 30 feet, DeFalco said.
According to G.F. Johnston & Associates, a Southwest Harbor civil engineering and land-use consulting firm hired in 2022, the gravel roadway “is in active state of failure.” DeFalco claims the road’s condition led to subsequent flooding and damage to his property. He also alleges that the town placed easements on his land that overlap his beachfront property.
The town’s 1997 agreement states that Machiasport is responsible for preserving the beach and must “preserve the historic Beach Road and Starboard beach for future generations.” That provision remains a point of contention between the parties.
In April, Carmine DeFalco wrote to Maine State Fire Marshal Shawn Esler, alleging that the road violated “the Maine Infrastructure and Adaptation Fund funding requirements of safe, unobstructed, free of hazard and environmental impact passage.”
DeFalco said the road serves as the sole access point to a 600-acre housing development in Starboard’s historic district and lies in a flood zone.
“This appears to be a defiance of those stipulations and the mission statement of Selectmen for safe passage,” DeFalco wrote.
Monitor Local confirmed that the road lies in a regulated flood zone and appears in Zone VE on Federal Emergency Management Agency flood maps, which the town updated in 2017. According to FEMA, properties in Zone VE have a “26 percent chance of flooding over the life of a 30-year mortgage.”
Carmine DeFalco also asserts that no historic road ever crossed the shorefront portion of his property. Instead, he said, the historic road ran farther inland, above the present-day Beach Road. He cited old photographs of the property and historic maps to support his claim.
A clerk for the Washington County Superior Court confirmed that the town filed a response to the motion by the September deadline.
Hayward, the town clerk, and the town’s attorney, Stephen Wagner of the Bangor law firm Rudman Winchell, did not respond to requests for comment.