The opinion
STATE OF MAINE SUPERIOR COURT
Penobscot, SS. Docket No. CV-19-354
TOWN OF HANCOCK )
)
V. )
) JUDGMENT
PCJ, LLC and )
BRIDGETWIN, LLC )
)
Defendants )
This Rule 80K matter came before the Court for hearing on January 30 and February 20, 2020.
The Court finds the following facts:
1. The Jordan family owns/controls three (3) or more different companies: PCJ, LLC
(PCJ); Bridgetwin, LLC (Bridgetwin); and R. F. Jordan & Sons Consttuction, Inc. (R.
F. Jordan). Patrick Jordan has an ownership interest in and manages all of these
companies;
2. In September of 2015, PCJ purchased certain real estate in Hancock, Maine, known
as the "Thorsen Farm" property, and it contained approximately 85 acres. The land
included the Thorsen house, about 60 acres of blueberry fields, and woods;
3. In May of 2004, the Town of Hancock amended its "Mineral Extraction Ordinance,"
and this version of the ordinance remained in effect through September 19, 2017. The
Mineral Extraction Ordinance was substantially amended on September 19, 2017.
The Town's Mineral Extraction Ordinance was subject to a moratorium from October
11, 2016 to September 19, 2017;
4. Between 2004 and September 19, 2017, Article IV, section 7A of the Mineral
Extraction Ordinance provided: "Before a Final Plan has been approved, the
following is not permitted: 1. No material from any MEO may be sold. 2.
Development of the infrastructure of the MEO is not permitted, including buildings,
roads, and utility installations";
5. In late March or early April 2016, PCJ applied to the Town of Hancock for a Mineral
Extraction Operations Permit (pit permit) to operate a gravel pit on the PCJ real estate
in question. R. F. Jordan was listed as the proposed "operator";
6. Stephen Salsbury, a surveyor, was designated as an agent of PCJ and he prepared the
Mineral Extraction Application;
7. On April 5, 2016, the Code Enforcement Officer (CEO) wrote a memo to tµe Town
Planning Board and suggested that certain additional specific information was
required in connection with PCJ' s application. The applicant supplied the additional
infonnation;
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8. Thereafter, the Planning Board asked for additional information several different
times. PCJ representatives attended several Planning Board meetings between April
2016 and September 2016. PCJ continued to provide the requested additional
information;
9. PCJ' s initial Mineral Extraction permit application called for a road to be constructed
from the Thorsen Road to the proposed gravel pit, and the road was to intersect with
the Thorsen Road north of the "Thorsen Farm";
10. The neighbors in the area of the proposed access road to the proposed gravel pit
raised several objections;
11. On August 5, 2016, Bridgetwin purchased real property in Hancock from the
Campbells in an arm's-length transaction. This property is at the southwesterly comer
of the blueberry fields owned by PCJ. At the time of the purchase, Mr. Jordan hoped
to build a road over the Campbell property to serve the gravel pit and to abandon the
previously considered planned road north of the "Thorsen Farm";
12. The Mineral Extraction permit application was pending when Bridgetwin purchased
the Campbell property;
13. The real estate is depicted below (the handwritten comments were made by the
undersigned) (part of the road in question was darkened by the undersigned):
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14. On October 11, 2016, a moratorium on the consideration of Mineral Extraction
permits went into place. PCJ' s permit application was pending when the moratorium
went into effect. This moratorium stopped any action from being taken on PCJ's
Mineral Extraction permit application;
15. The moratorium was initially for 180 days, but in April of 2017, the Selectman
approved an extension for another 180 days;
16. In the fall of 2016, Patrick Jordan had a discussion with Diane Wilbur, owner of the
property abutting the "Campbell property." During this discussion Ms. Wilbur
expressed concern to Mr. Jordan about trucks using the road to haul gravel from the
proposed pit. Mr. Jordan agreed to take ce1iain action to lessen the impact of the road
on Ms. Wilbur;
17. Rudy Bagley, the Road Commissioner for the Town of Hancock, approved the "curb
cut" in October of 2016: Mr. Bagley testified that he has been the Town of Hancock's
Road Commissioner for 30 years, and that he was not aware of any fee being charged
for permission for a "curb cut"; 1
18. In December of 2016, Mr. Jordan and Mr. Salsbury met with CEO Larson to discuss
pe1missible alternative uses for the property in question now that the moratorium was
in effect. In particular, the three participants discussed the construction of a road in
connection with the growing and harvesting of blueberries. Mr. Larson agreed that an
agricultural road to service the blueberry fields could be built without a permit;
19. An option under consideration by the Jordan entities was to sell the old Thorsen farm
and a little acreage to generate money from the property. The "farnihouse," which
had been extensively renovated, may be worth about $300,000.00;
20. In March of 2017, R. F. Jordan began building a road over the "Campbell property."
The road went over the "Campbell property" and continued onto the PCJ property.
The road ended at the edge of the blueberry field;
21. Before the new road was constructed, there was an old abandoned pit near the
Thorsen Road just south of the Campbell house. This is the area where construction
of the new road began off the Thorsen Road. A knoll existed on the easterly side of
this abandoned pit. The knoll was cut down and leveled and the new road was
constructed using material from the knoll;
1 The Comt is satisfied that the CEO misplaced or otherwise did not act promptly on two Applications by
Patrick Jordan for curb cuts. Both Applications were approved by the Road Commissioner in October of
2016. The CEO signed one of the Applications in July of 2017, after Mr. Jordan visited the CEO and
observed the check sitting on the CEO's desk.
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22. Initially, Mr. Larson testified that the road, as constructed, went from the Thorsen
Road to the proposed pit.2 This clearly is not accurate. After a break, the CEO
"clarified" his testimony to indicate that the last portion of the road to the proposed
pit was merely some remnants of a path that had been on the face of the earth for
years, not part of the road constructed by R. F. Jordan;
23. Initially, Mr. Jordan testified that the road, as constructed, ended at the back line of
the Campbell property and at the beginning of the blueberry fields. However, after
reviewing additional photographs, Mr. Jordan agreed that the road, as constructed,
continues some 300+/- feet beyond the Campbell line, which is where the bluebeny
fields begin;
24. The new road, as constructed, is about 950+ feet long. The distance from the Thorsen
Road to the proposed pit is approximately 2000 feet;3
25. The diagram in paragraph 13 above depicts the road as it was proposed in the Mineral
Extraction permit application after the change was made in the location of the
proposed road. The colored-in portion of the road is the portion the Court finds was
actually constructed by R. F. Jordan. The portion of the depicted road that is not
colored-in is the remainder of the road that was proposed to service the proposed
gravel pit. The Court finds that the road, as constructed in March of 2017, extends
only to the edge of the bluebeny fields (the darkened portion of the road). While there
may be some type of primitive path from the end of the road as constructed to the
area of the proposed pit, the road constructed in March of 2017 did not extend beyond
the edge of the blueberry field;
26. The aerial view of the property very clearly shows that the constructed road ends
quite far from the proposed gravel pit area. The road ends where the bluebeny fields
start, and it is in a position to serve the bluebeny fields;
27. At the time the road was constructed, its purpose and intent was to serve the bluebeny
fields;
28. In late March 2017, Mr. Hunt, one of the Selectmen, drove over the Thorsen Road
and noticed construction of a road over the Campbell property. Mr. Hunt's testimony
was that the road was carved into a hill and this is consistent with Mr. Jordan's
testimony that a knoll was cut to level the area and the material from the knoll was
2On the recording at approximately 8: 14 minutes into Mr. Larson's testimony the following questions
were asked and answers given (as best as the undersigned could transcribe):
Gilbert: When you got there, what did you see?
Larson: I saw a road that looked like a - graveled. There was a road there was a ... cut through a
small berm and the road continued all the way down to that proposed gravel pit area.
Gilbert: How far up did you go that particular day?
Larson: I went all the way.
3 Plaintiff's Exhibit #22 recites a distance of2039 feet.
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used to construct the road. Mr. Hunt called CEO Larson, and Mr. Hunt asked Mr.
Larson to take a look at the activity;
29. Mr. Larson went to the property, and observed the road construction;
30. On March 30, 2017, Mr. Larson issued a "Stop Work Order";
31. On April 4, 2017, Mr. Jordan and Mr. Salsbmy met with CEO Larson and Selectman
Hunt. At that time, Mr. Jordan and Mr. Salsbury told Mr. Larson and Mr. Hunt that
the road was an agricultural road to serve the blueberry fields Gust as had been
discussed with Mr. Larson in December of 2016). The CEO and Mr. Hunt did not
accept this explanation;
32. On April 4, 2017, the Town served PCJ with a Notice of Violation and a typewritten
Stop Work Order;
33. At the time the road was constructed over the "Campbell property," Mr. Jordan
intended the road to service the blueberry fields. One of the reasons for constructing
the road was to eliminate/reduce the traffic on the old paths near the "Thorsen house".
Selling the "Thorsen house" was under consideration. Moreover, moving the
blueberry road closer to the Merrill Blueberry Plant lessened the length and pitch of
the public road over which the blueben'ies would have to be transported from the field
to the processing plant;
34. Mr. Jordan harbors the hope that if a Gravel Pit permit is issued in the future, the road
currently servicing the blueberry fields, with additional improvements, might service
the gravel pit as well as the blueberry fields;
35. PCJ never withdrew its Mineral Extraction permit application; and,
36. On September 19, 2017, anew "Mineral Extraction" ordinance was passed. The new
ordinance did not address any process for any applications then pending before the
Planning Board. Instead, the new Ordinance, as promulgated, set forth a process for
new applications only.
ANALYSIS
PCJ/R. F. Jordan was "an applicant" for a Mineral Extraction permit in March/April of
2017. It did not withdraw its application. While the new Ordinance set forth a process only for
new applications, it was not in effect in March of2017 and the PCJ application remained
pending in March of 2017.
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All parties agree that an "agricultural road" can be constructed in Hancock without a
permit. The parties disagree whether the road, as constructed, is an "agricultural road." This is
the essential dispute in this case.
The Town ordinances do not provide a definition of an "agricultural road." The Town
argues that "common sense" defines an "agricultural road."
In December 2016, Mr. Jordan and Mr. Salsbury specifically discussed with CEO Larson
the possibility of constructing an agricultural road over the property in question. There was a
general agreement that an agricultural road could be constructed without a permit.
The Town argues that an "agricultural road" does not have the character of the
constructed road. As noted above, there is no definition of an "agricultural road" in the Town's
ordinances. Additionally, R. F. Jordan is in the business of building roads, and the Court does not
find it unreasonable that a road builder would build a decent road on its (or a related company's)
prope1ty, particularly when the materials are on-site. The mere fact that the road is wider than
what the Town thinks an agricultural road should be, and that the location of the road is in the
location of the proposed road to the proposed pit, is not dispositive of the question.
When constructed, the purpose of the 900+ foot road from the Thorsen road to the edge
of the blueberry fields was to service the blueberry fields. The blueberry fields are active, and
include bi-annual harvesting and regular maintenance. The intent of the road when it was
constructed was to service the blueberry fields. The 900 + foot road stops at the edge of the
blueberry fields and this is far short of the proposed gravel pit. The road is no longer than
reasonable to service the blueberry fields. It is another 1000 +/- feet to the proposed pit. There is
a legitimate purpose for the road that is wholly independent from servicing a proposed gravel pit.
While the road, with further improvements, might have an additional purpose if a gravel pit
permit is issued in the future, this does not eliminate the current legitimate purpose of the road
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serving the blueberry fields. The road ends far short of the area of the proposed pit and it is in a
position to serve the blueberry fields.
Thus, the Court determines that the Town has failed to establish that the road, as
constructed, is "infrastrncture" for the proposed gravel pit. 4 The fact that Mr. Jordan harbored a
hope that the road at some time in the future might be improved and also service the pit did not
make it infrastructure for the proposed pit operation when it was constructed. There is no
requirement that while a permit application is pending, a property owner must stop other lawful,
independent activity on its property to generate income from the property. The Town has failed
to establish by a preponderance of the evidence that a land use violation was committed.
Judgment entered in favor of the Defendants.
The Clerk shall enter this Order upon the record by reference.
Date: February 26, 2020 _ll.-4dc-H--~----'--",4,t_-->...~---~
_
AtifM. Murray, J ~
Maine Superior Court
Cross-designated
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4 -lfthe road as constructed extended to an area closer to the proposed gravel pit and/or there was no
independent legitimate reason for the road, the analysis would be different. Instead the road stops at the
edge of the bluebeny fields and services the bluebeny fields.
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