Judge sides with Kittery over York in Rt. 1 border dispute. Here's why York could try again.

A York County Superior Court judge has dismissed the town of York's complaint against neighboring Kittery, the latest chapter in long-running Route 1 border disagreement. 

In February, York filed a complaint against Kittery disputing the land between the two towns, calling on the Superior Court to appoint three commissioners to perambulate, or officially inspect, the border and officially set the boundary line. Kittery filed a motion for the court to dismiss York’s complaint, arguing York officials didn’t comply with state law regarding resolving disputed municipal lines. 

Judge Wayne Douglas sided with Maine’s southernmost town, Kittery, in the matter, dismissing it without prejudcice. In his decision, he wrote York officials failed to first hold a border walk with Kittery leaders in accordance with state law. Douglas wrote that if the findings of a formal perambulation between adjoining municipalities show a disagreement, a complaint could then be filed with the court “stating the facts and requesting that the line be run."

“York has not complied with (state statute’s) unambiguous perambulation requirement,” Douglas wrote.

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York Town Manager Steve Burns said, instead of calling for an official perambulation with Kittery, the town’s attorney reviewed state law and called for the town to file the complaint with the Superior Court. 

According to Douglas’ ruling, state statute allows for a municipality to file a complaint asking for a court-controlled border perambulation when a boundary controversy exists, but another section of state law first calls for municipalities to inspect the border before presenting their findings to a court.

“Different legal interpretation,” Burns said of the town attorney’s suggestion. “The (York Board of Selectmen) was simply directed to a different standing point.”

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However, the official ruling was that the complaint was dismissed without prejudice, leaving the door open for the matter to extend into the future. A complaint dismissed without prejudice allows the complainant to re-file the legal challenge.

Next month, according to Burns, the York Board of Selectmen will meet in executive session to discuss possible next steps in the border disagreement. 

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At the heart of the towns’ dispute is a stretch of land with several hundred feet of frontage on U.S. Route 1. Maps currently show a “meandering” border, per York’s complaint, but town officials argued a straight line border was established in 1653 by the Massachusetts Bay Colony, thus the debated territory belongs to York.

The border battle took a twist this spring when Kittery filed a sweeping public records request against York officials and the past and present owners of property at 524 U.S. Route 1. Kittery Town Manager Kendra Amaral previously told the Town Council that the records request, filed after York’s complaint with the court, came from a suspicion that the property owner would prefer to develop under York’s zoning codes rather than Kittery’s.

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An application for a residential and commercial development project at 524 U.S. Route 1 was presented to the Kittery Planning Board in March.

Amaral reacted this week to Douglas’ decision, which he made on Wednesday, June 22, by discussing the impact that conceding town land to York in a border redraw could have on Kittery residents. 

If the border with York was changed, she said property owners living in the disputed territory would have to vote in York and their children would be forced to switch schools. Amaral added that the rest of Kittery’s property owners would have to pick up the costs of municipal and school operations in their taxes.

“We’re pleased with the judge’s decision,” she said. “We will continue to work to protect our residents and our neighborhoods that are under threat of being taken out of Kittery.”

What do Maine laws require for border perambulation processes?

In his decision, Douglas laid out the state procedure for a standard border perambulation between two municipalities. The community contesting the border must give the neighboring municipality a 10-day written notice of the dispute “advising them of the time and place of meeting for perambulation,” he wrote.

Even if the other requested municipality fails to appear for a border inspection, the municipality disputing the land may still perambulate the border and charge the other municipality for half of the expenses incurred. “Each municipality ‘shall pay an equal share of the expense of perambulation,’” Douglas wrote.

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The justice added that municipalities must make specific records of perambulations under Maine law.

According to Douglas, York countered Kittery’s motion to dismiss the complaint by arguing a separate state statute allows a municipality to file a court complaint when a controversy over a border exists. Due to that, Douglas wrote, York argued that the state statute mandating perambulation does not apply “because there is no question that a (border) controversy exists.”

“This argument is unpersuasive. (State statute) is unequivocal in its requirement that a disputed boundary ‘must’ first be perambulated,” Douglas ruled.

History of the border disagreement 

In 2019, Todd Frederick, chairperson of the York Board of Selectmen, wrote to the Kittery Town Council asking that Kittery either work with York to identify the straight-line border or acknowledge it as a contested boundary so the Superior Court could settle the dispute. 

Kittery Town Council chairperson Judy Spiller declined and responded that the town would “vigorously protect and defend” Kittery’s border.

Douglas ruled last week that Frederick’s 2019 letter does not satisfy the state’s notice of perambulation requirement. 

“Further, perambulation by the two municipalities, or satisfying the alternative requirements of (state statute), would identify and confirm the extent of the dispute, and potentially provide additional facts relevant to issues which the court may be required to address once a complaint is filed pursuant to (state statute),” Douglas wrote.

York’s Board of Selectmen first agreed to file a complaint against Kittery in January 2020. Due to the town’s decision to halt all non-essential spending at the start of COVID-19, however, the town held off on filing it until this winter after the board again approved the idea in August 2021.

The hearing between the two towns in regard to York's complaint was held on Tuesday, June 21.

“It was neat seeing that,” Burns said of Justice Douglas' handling of the matter. “But you’ve got to have faith in the judge’s decision, and I absolutely do.”

Per the Superior Court, York and Kittery share a common boundary line running from the head of the river above Brave Boat Harbor to a point in the York River salt marshes.

Records of perambulations between the two towns date back to 1695, according to the court.