The Maine Department of Transportation filed a motion July 7 seeking a summary judgment in a lawsuit brought by the Ralph H. Doering family, owner of four buildings in downtown Wiscasset.

The motion asked the judge in the Business and Consumer Court to rule on nine counts brought by the Doerings’ attorney, Robert Hark of Portland. The first count alleges irreparable harm, a lack of a public participation process and failure by MDOT to comply with an obligation to consider the interests of the town.

MDOT responded, the Doering family has no standing to speak for the town, which has not made a similar claim. MDOT also maintains there is a process in place to allow for effective public participation, the downtown public advisory committee which has been meeting monthly, and  that the Doerings’ properties are not being taken by eminent domain and therefore have suffered no irreparable harm. MDOT said in court documents, the Doerings cannot claim harm, such as loss of business owing to lack of Main Street parking – unless the harm has already occurred.

The Doerings also said they would be harmed by taxes caused by the town paying for certain project features – but again, MDOT said the case is not yet “ripe,”  harm has not occurred, and that MDOT would not be telling the town  how much to raise taxes for improvements such as a public restroom. And the Doerings would not be affected any more than any other taxpayer, most of whom have not raised objections, according to MDOT’s documents.

The second count alleges MDOT would be taking the Doerings’ property, which MDOT said is not true, and that even if it were, MDOT has the right to take property by eminent domain “as it deems necessary” to improve state highways.

In the plaintiffs’ objection, made in Lincoln County Superior Court — although MDOT’s motion was made in the Portland Business Court — Hark challenged MDOT’s assertion that the court does not have the legal authority to act in favor of the plaintiffs. He cited legal authority that the court does have jurisdiction; and he said his clients have standing since the Maine Sensible Transportation Policy Act was enacted with the intention to impose on MDOT a public participation duty for eminent domain taking.

 He also claimed that the “irreparable injury” his clients will suffer is procedural, and that the Haggett showroom property on Water Street was taken by a “flawed eminent domain process.”

The third count involves an Oct. 31, 2016 letter of intent in which MDOT agrees to work collaboratively with the town, and if the town were to decide to add features to the downtown project at the town’s own expense, MDOT agreed it would add the work to design plans to save the town money for its part of the project. The plaintiffs alleged the letter was an “illegal expenditure of funds without legislative approval by a town meeting vote.” MDOT stated that the letter does not obligate the town to pay for anything, and therefore the town could not be harmed by it.

Counts IV, V, and VI allege MDOT failed to comply with the town’s Historic Preservation Ordinance, Site Plan Review Ordinance and Comprehensive Plan. MDOT stated that as private taxpayers, even if those allegations were true, which MDOT disputes, the plaintiffs would not have standing to sue – the town would have to do it, and it is not a party to the lawsuit.

Until the plan is complete, former Town Planner Ben Averill said in July, there could be no certificate of appropriateness or site plan to pursue and the comprehensive plan is not a legal document, like the town ordinances, but a visionary document.

Count VII alleges MDOT’s taking of the plaintiffs’ property would deprive the plaintiffs of their “procedural and constitutional rights.” MDOT reiterated, it would not be taking the plaintiffs’ property.

Count VIII states MDOT is causing the plaintiffs to be deprived of their constitutional due process rights by taking their property by eminent domain. MDOT states once again that it would not be taking the plaintiffs’ property. The response by Hark countered that the Doerings own their property to the center line of the road, and even if that were set aside because the road is a state highway, there should be a historic preservation of the street scape.

Finally, in Count IX, the plaintiffs claim MDOT does not have the requisite right, title and interest to construct the project.  MDOT countered that it owned some of the areas, but it is not legally required to own all of the areas. “There are many miles of state highways that were laid out by local government prior to the state highway designation,” MDOT said in its motion. Furthermore, it said, the plaintiffs do not have standing to demand that MDOT demonstrate it has the rights and titles.

MDOT stated that neither the judiciary, nor the legislature, have the legal right to decide the design of a state highway project, since it would violate the separation of powers. MDOT is in the executive branch. “In their zeal to stop the project, the plaintiffs would have the Court overstep those bounds,” the lawyer for MDOT, Nathaniel Rosenblatt, wrote.

Hark disputes that assertion. He wrote that even in the case law Rosenblatt cited, the judge in that case found that judicial review was consistent with constitutional limitations.