Recently,  the Maine Supreme Judicial Court (the Law Court) issued a decision that could impact developers’ ability to apply for development permits if the developer proposes to use property over which the developer has only an easement. 

In Tomasino v. Town of Casco, 2020 ME 96, the Tomasinos applied for a shoreland zoning permit to allow them to remove trees from a neighboring property owned by the Lake Shore Realty Trust, to allow construction of an access road. The Tomasinos claimed that an easement allowed them to remove those trees, but the Trust disputed that claim. The town’s Zoning Board of Appeals (ZBA) denied the Tomasinos’ permit, concluding that the easement did not clearly give the Tomasinos the right to cut trees on the Trust’s property. The Law Court affirmed that denial, concluding that the Tomasinos has failed to prove adequate title, right, or interest (TRI) in the Trust’s property.

In upholding the ZBA’s denial of the permit, the Law Court reasoned that “a municipal zoning case is not the proper forum for a private property dispute between neighbors, and a private property dispute between neighbors is precisely what was before the Board here.” Justice Catherine Connors dissented, arguing forcefully that an applicant for a municipal permit should not be required to definitively prove TRI for purposes of applying for a municipal permit. 

Rather, she argued that prima facie TRI is sufficient – as the Law Court had previously held – and that the applicant should not be required to go to court to resolve those issues before applying for a municipal permit. The majority of the court rejected Justice Connors’ argument, concluding that in the face of a dispute with the owner of the property subject to the easement about the scope of those easement rights, the applicant must resolve that dispute before proceeding with the municipal application.

Importantly, Tomasino likely can be limited to TRI needed over an abutting property when that abutter disputes the scope of the applicant’s TRI. It probably does not extend generally to arguments by other project opponents concerning the scope of an applicant’s fee title to property proposed for development. Further, it probably does not extend to arguments by project opponents concerning the scope of an easement if the owner of the land subject to the easement does not dispute that the easement allows the development to proceed. 

Nonetheless, Tomasino suggests now more than ever that careful drafting of the scope of easement rights is essential and that developers relying on easement rights should strongly consider seeking the support of an abutter prior to beginning the permitting process.