A York County judge has dismissed a lawsuit York filed against Kittery over a longstanding dispute about the exact location of the border between Maine’s oldest towns.

The disagreement about the border – established in 1652 by decree from the Massachusetts Bay Colony under threat of force by an armed militia – was perhaps inevitable, but it didn’t become an issue until four years ago when a local developer bought land that straddles the town line. A survey commissioned by the developer showed that the boundary was 333 feet south of where the towns thought it was.

The differences in town maps prompted plenty of lighthearted ribbing about a “border war” breaking out between the two otherwise friendly towns. Town leaders in York joked about building a wall on their southern border, while Kittery residents imagined marching a militia northward.

But town leaders also recognized it was a serious issue, with the possibility that a change in the border could impact where the owners of more than two dozen properties in Kittery pay their taxes and send their kids to school.

Last week’s ruling from Justice Wayne Douglas doesn’t necessarily mean the issue is settled.

The complaint was dismissed without prejudice, meaning York could bring the issue back to the court in the future. York Town Manager Stephen Burns said it will be up to the select board to decide if the town should continue to pursue it. The board will meet in executive session next month to discuss the ruling and next steps, he said.

Kittery Town Manager Kendra Amaral said the town is grateful for the ruling.

“Kittery is confident the border, as it stood for hundreds of years, will remain in place,” she said. “Our efforts are focused on protecting our residents and property owners, who would be detrimentally impacted if York takes Kittery land.”

Kittery, incorporated in 1647, is the oldest town in Maine and originally included the towns now known as Eliot, Berwick, North Berwick and South Berwick.

In November 1652, commissioners from the Massachusetts Bay Colony arrived in Kittery intent on annexing what was then known as the Province of Maine up to modern-day Cape Porpoise. On Nov. 20 that year, 42 inhabitants of Kittery signed a declaration acknowledging they would henceforth be subject to the Government of Massachusetts Bay.

Two days later, the commissioners traveled northeast to Gorgeana, where inhabitants had assembled at the house of Nicholas Davis. By the end of the day, they had taken the same oath as those in Kittery. Gorgeana was reincorporated in 1652 as York, named for York, England, and was one of the last Royalist strongholds taken by the Puritans in the English Civil Wars.

Under the Articles of Submission signed in 1652, Massachusetts Bay Colony ordered the towns to set up up their borders. In 1794, Massachusetts insisted that each town create a map because many towns were in disputes over their boundaries. The borders on the maps created of Kittery and York that year did not completely match, but no one seemed to worry at the time.

DEVELOPER’S SURVEY UNCOVERED DISCREPANCY

The differences were highlighted in the developer’s survey four years ago and prompted York officials to reach out to their counterparts in Kittery.

The dispute centers on land that includes about 300 feet of frontage on Route 1 north of Landmark Hill Lane. The area includes residential parcels, two cell towers and a cemetery. An attorney for Kittery said in court filings that York’s desired modification of the border would affect at least 25 residential properties covering over 300 acres, with a total assessed value of nearly $8 million.

The land in question is still largely wooded, but it has been developed in recent years. A border adjustment wouldn’t change anyone’s property ownership, but it would affect where some pay taxes, vote and go to school and which town maintains a cemetery. It also could change how that Route 1 property is developed.

Amaral, the Kittery manager, believes York’s motivation to take this issue to court comes from a single property owner who is looking to develop property around the disputed border and right now has to comply with zoning in both towns. The property owner, who is not identified in town records, “is not happy with what Kittery has said” about how the property can be developed, she told the town council in late March.

In February, York filed a complaint asking the court to appoint three commissioners and empower them to determine the “true and correct” common boundary, describe the boundary line “by curves and distances,” and set markers to indicate the established border. The towns argued their points during a June 21 hearing before Douglas.

WALKING THE LINE

York argued that the 1652 description of the common boundary said it began at the head of Brave Boat Harbor and then ran “in a straight line to the head of ye Southwest branch of ye River of York.” The two towns, it said in its complaint, cooperatively identified that straight-line boundary through perambulations, or walking the line, in 1695, 1740, 1779 and 1794.

Kittery told the court the case should be dismissed because York failed to comply with the state statute governing resolution of disputed towns lines, which says that when a municipality disputes the boundary with a neighboring municipality, the boundary must be perambulated.

York contended that the perambulation would serve no purpose and urged the court to focus on the section of law says a complaint can be filed with the superior court about boundary disputes that states the facts and requests that the line be run.

Douglas ruled June 22 that York did not meet the statutory requirements to present a justiciable claim and granted Kittery’s motion to dismiss the complaint.

Douglas wrote in his order that York’s argument was unpersuasive because the law is unequivocal in its requirement that a disputed boundary “must” first be perambulated. A perambulation by the two towns would identify and confirm the extent of the dispute, and potentially provide additional facts relevant to issues that could be addressed by the court, he wrote.

Stephen Langsdorf, a PretiFlaherty attorney who represents Kittery, is confident the town will prevail even if York continues to push the issue.

“The town of Kittery is pleased the court dismissed the case because the town of York failed to follow the clear statutory requirement of perambulating the boundary line before filing suit. The specific purpose of the law is to avoid unnecessary litigation over well-established boundaries unless the towns meet to identify any disputed areas,” Langsdorf said in a statement. “Not only did York fail to perambulate prior to filing suit, but apparently has not done so since 1794 despite being legally required to do so every five years from 1821 to 2003. If York chooses to go through the perambulation process and then refile the lawsuit, Kittery is confident it will be dismissed again because this issue should have been resolved almost 200 years ago.”

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