Opinion
CV-2016-147
11-17-2020
STATE OF MAINE, AARON M. FREY, ATTORNEY GENERAL, BUREAU OF PARKS AND LANDS, and LAND USE PLANNING COMMISSION, Plaintiffs v. MOOSEHEAD MOUNTAIN RESORT and OFLC, INC., Defendants and CARMEN REBOZO FOUNDATION, INC., Party-in-Interest and PISCATAQUIS COUNTY COMMISSIONERS Intervenors
STATE OF MAINE - PLAINTIFF 6 STATE HOUSE STATION AUGUSTA ME 04333 Attorney for: STATE OF MAINE LAUREN E PARKER - RETAINED OFFICE OF THE ATTORNEY GENERAL Attorney for: STATE OF MAINE GERALD REID - WITHDRAWN OFFICE OF THE ATTORNEY GENERAL Attorney for: STATE OF MAINE CHRISTOPHER C TAUB - RETAINED ATTORNEY GENERAL OFFICE OF AG Attorney for: STATE OF MAINE THOMAS HARNETT - RETAINED OFFICE OF THE ATTORNEY GENERAL AARON M FREY (SUBSTITUTED) - PLAINTIFF 6 STATE HOUSE STATION AUGUSTA ME 04333 Attorney for: AARON M FREY (SUBSTITUTED) LAUREN E PARKER - RETAINED OFFICE OF THE ATTORNEY GENERAL Attorney for: AARON M FREY (SUBSTITUTED) GERALD REID - WITHDRAWN OFFICE OF THE ATTORNEY GENERAL Attorney for: AARON M FREY (SUBSTITUTED) CHRISTOPHER C TAUB - RETAINED ATTORNEY GENERAL OFFICE OF AG Attorney for: AARON M FREY (SUBSTITUTED) THOMAS HARNETT - RETAINED OFFICE OF THE ATTORNEY GENERAL BUREAU OF PARKS AND LANDS - PLAINTIFF 6 STATE HOUSE STATION AUGUSTA ME 04333 Attorney for: BUREAU OF PARKS AND LANDS LAUREN E PARKER - RETAINED OFFICE OF THE ATTORNEY GENERAL Attorney for: MOOSEHEAD MOUNTAIN RESORT INC ELLIOTT R TEEL - RETAINED TEEL LAW OFFICE LLC Attorney for: OFLC INC MATTHEW STACHOWSKE - WITHDRAWN 05/02/2019 HOEFLE PHOENIX GORMLEY & ROBERTS PA Attorney for: OFLC INC ELLIOTT R TEEL - RETAINED TEEL LAW OFFICE LLC
STATE OF MAINE - PLAINTIFF 6 STATE HOUSE STATION AUGUSTA ME 04333 Attorney for: STATE OF MAINE LAUREN E PARKER - RETAINED OFFICE OF THE ATTORNEY GENERAL
Attorney for: STATE OF MAINE GERALD REID - WITHDRAWN OFFICE OF THE ATTORNEY GENERAL
Attorney for: STATE OF MAINE CHRISTOPHER C TAUB - RETAINED ATTORNEY GENERAL OFFICE OF AG
Attorney for: STATE OF MAINE THOMAS HARNETT - RETAINED OFFICE OF THE ATTORNEY GENERAL
AARON M FREY (SUBSTITUTED) - PLAINTIFF 6 STATE HOUSE STATION AUGUSTA ME 04333 Attorney for: AARON M FREY (SUBSTITUTED) LAUREN E PARKER - RETAINED OFFICE OF THE ATTORNEY GENERAL
Attorney for: AARON M FREY (SUBSTITUTED) GERALD REID - WITHDRAWN OFFICE OF THE ATTORNEY GENERAL
Attorney for: AARON M FREY (SUBSTITUTED) CHRISTOPHER C TAUB - RETAINED ATTORNEY GENERAL OFFICE OF AG
Attorney for: AARON M FREY (SUBSTITUTED) THOMAS HARNETT - RETAINED OFFICE OF THE ATTORNEY GENERAL
BUREAU OF PARKS AND LANDS - PLAINTIFF 6 STATE HOUSE STATION AUGUSTA ME 04333 Attorney for: BUREAU OF PARKS AND LANDS LAUREN E PARKER - RETAINED OFFICE OF THE ATTORNEY GENERAL
Attorney for: MOOSEHEAD MOUNTAIN RESORT INC ELLIOTT R TEEL - RETAINED TEEL LAW OFFICE LLC
Attorney for: OFLC INC MATTHEW STACHOWSKE - WITHDRAWN 05/02/2019 HOEFLE PHOENIX GORMLEY & ROBERTS PA
Attorney for: OFLC INC ELLIOTT R TEEL - RETAINED TEEL LAW OFFICE LLC
DECISION AND ORDER
WILLIAM R. STOKES, JUSTICE
INTRODUCTION AND PROCEDURAL HISTORY
Before the court for resolution is the Motion for Summary Judgment filed by the Plaintiffs - the State of Maine, Attorney General Aaron Frey, the Bureau of Parks and Lands and the Land Use Planning Commission (hereinafter referred to as the State) - on Counts I, II, III and V of the complaint.
Count IV, alleging Breach of Contract, was previously withdrawn by the State. Count V, alleging Unjust Enrichment, has been pleaded in the alternative and need not be addressed by the court unless it rules against the State on Counts II and III.
This action was commenced by the State on August 1, 2016 with the filing of a five-count complaint seeking to enforce what are described as "deed restrictions" and "public servitudes" that allegedly burden the land of Defendant Moosehead Mountain Resort (MMR) on Big Moose Mountain (f/k/a Big Squaw Mountain) in Greenville. The land in question was formerly owned by the State of Maine and was conveyed to MMR's predecessor in title in 1986.
Count I alleges that MMR and Defendant OFLC, Inc., conducted timber harvesting within a General Development subdistrict without first obtaining a permit from the Land Use Planning Commission.
Count II alleges that MMR conducted timber harvesting in violation of certain deed restrictions applicable to the land owned by MMR, which were imposed for the benefit of the State of Maine.
Count III alleges that MMR has failed to comply with certain public servitudes imposed on the property owned by MMR, including that designated ski trails and lifts be subject to "continued public use."
Count V seeks damages on a theory of unjust enrichment.
In a Decision and Order dated May 7, 2018, the court denied MMR's motion for Summary Judgment as to Counts II, III and V. Many of the undisputed facts referred to in the court's prior Decision and Order are still undisputed for purposes of this motion for summary judgment. Oral argument on the Plaintiffs' Motion for Summary Judgment was held remotely on September 4, 2020.
FACTUAL BACKGROUND
Big Moose Mountain (f/k/a Big Squaw Mountain) began operating as a ski resort in 1963. Scott Paper Company purchased the ski area in 1970 and operated it until approximately 1974. In late 1974, the ski area was transferred to the Moosehead Resort Corporation (MRC), which was wholly owned by the State of Maine. In 1975, MRC conveyed the ski area to the State of Maine and the Bureau of Parks and Recreation (n/k/a Bureau of Parks and Lands).
The State of Maine owned the ski area for over ten years. In May 1986, a request for proposals was issued and advertised for the sale of the ski area and resort. Only one proposal was submitted, A proposal from the Big Squaw Mountain Corporation (BSMC) was the only one submitted. On October 17, 1986, then Governor Joseph E. Brennan approved Financial Order 04350 F6 authorizing the Director of the Bureau to convey the ski area and resort to BSMC. The "Statement of Fact" accompanying the Financial Order acknowledged that "[e]xtensive repair and improvements of the resort facility are necessary to keep it available to the public and assure its viability as an attractive and safe resort, benefiting the people of Maine."
The Financial Order described State policy at the time as recognizing that private capital was "the most appropriate and feasible means of assuring that the needed repairs and improvements are made in the future." Accordingly, it was deemed necessary that the property, including the ski area and resort, would be held in private ownership and that the State's conveyance of the property (and an option to purchase additional property) "is being done exclusively for public purposes."
The sale to BSMC involved the payment to the State of Maine of $300,000 (well below its market value at the time). The buyer (BSMC) was required to invest $700,000 in improvements to the facility. Moreover, the Financial Order provided:
The resort and ski area will be sold with restrictions on timber harvesting to prevent waste, a requirement for continued public use of the ski area, and a restriction preventing subdivision and alienation of the shoreland parcel on Moosehead Lake from the resort property.
The Agreement to Purchase between the State of Maine and BSMC dated November 5, 1986 recited that the deed to the "Ski Area and Resort" would contain the "restrictions" referred to above. The Release Deed, also dated November 5, 1986, is at the center of this litigation. The deed emphasizes that the conveyances of the property and the options to BSMC were "done exclusively for public purposes." To drive home this point, the deed provides:
Without limiting the definition of 'public purposes,' it is expressly understood that 'public purposes' shall include the maintenance, expansion, and operation of the Ski Area and Resort on the premises hereby conveyed, and the construction of transient accommodations and vacation homes for lease or sale.
The deed conveyed the land, buildings and improvements as described in Schedule A. The restrictions mentioned in the Financial Order and Agreement to Purchase were described in greater detail in the Release Deed as follows:
Timber shall not be harvested from parcels FIRST and SECOND, hereby conveyed, except (1) where necessary for trails, lifts, snow-making facilities, construction of transient accommodations and vacation homes for lease or sale, and all related improvements, including roadways, serving the same and the Ski Area and resort, (2) for firewood or lumber for such resort and improvements, and (3) for the harvest of dead or dying timber and blowdowns.
This conveyance is conditioned upon the continued public use of the Ski Area highlighted on attached Schedule B, which Ski area includes only the ski trails and lift lines in existence as of the date hereof and further listed on Schedule C hereof.
Schedule C listed a total of 17 ski trails and lift lines, designated A through Q. The lifts were described as: 3000' T-Bar (C); 2000' T-Bar (F); 6000' Double Chair Lift (N), and; Pony Lift (Q). The ski trails were designated by specific names.
It is significant to note that prior to the final conveyance of the property, and as part of the negotiations between the State and BSMC, the latter sought to have a provision included that "the restrictions will be removed if after ten years, use of the property as a ski area is deemed to be uneconomical to operate." See Exhibt V to Vogel Affidavit. This proposed provision was not accepted by the State.
At the time of the conveyance to BSMC, the State of Maine retained approximately 2 ¾ acres at the summit of Big Moose Mountain (the Summit Parcel), which abuts the Resort. Additional parcels of land were acquired by the State that comprise the Little Moose Unit of public reserved lands. Together with the Summit Parcel, the Little Moose Unit constitutes a one-mile shared boundary with the Resort.
BSMC filed for bankruptcy in 1990. Fleet Bank foreclosed on the property and conveyed it to the Trustees of the Big Squaw Mountain Realty Trust. That deed of conveyance was virtually identical to the 1986 Release Deed and contained the restrictions and conditions set forth above. In 1995, the remaining Trustee of the Realty Trust conveyed the Resort to The Mountain, Inc., (now known as Moosehead Mountain Resort - MMR) for the sum of $500,000, also below its market value at the time. The 1995 deed to MMR is also virtually identical to the 1986 and 1990 deeds and restates in full the restrictions and conditions quoted above. MMR is owned 100% by James Confalone. OFLC, which owns property abutting the Resort, is owned by Mr. Confalone and his wife, Karen.
In 2004, the 1967 Stadeli double chair lift (N on Exhibit C) was taken out of service following an accident in which four people were injured. That double chairlift has not operated since. MMR has not replaced the lift serving the upper mountain trails. The lower mountain was also closed for a few seasons prior to 2013. In 2006, MMR mortgaged the property to secure a $6,350,000 loan from Machias savings Bank (the MSB loan). Although the loan proceeds would have more than covered the cost of repairing or replacing the lift serving the upper mountain, the loan was primarily used to refinance prior indebtedness on OFLC property and the Resort and to pay other debts.
Since at least 2013, the Friends of the Mountain, a non-profit organization, have leased the Resort and have operated the lower mountain only on a limited basis. As a result, the condition of the lower mountain has improved. The condition of the upper mountain, however, has continued to deteriorate.
In 2010-2011, an agent acting on behalf of Mr. Confalone, retained a logging company to harvest timber on the property owned by OFLC. The stumpage value of the harvested timber was paid directly to Machias Savings Bank to make interest payments on the $6,350,000 loan. At least some of the timber harvested on OFLC property was harvested within the D-GN subdistrict without a permit from the Land Use Planning Commission. In addition, the logging company crossed the property line onto the Resort and harvested timber within a D-GN and M-GN subdistrict, also without a permit from the Commission. The areas where the timber was harvested on the Resort were within the parcels FIRST and SECOND as described in the 1986 and subsequent deeds. It is undisputed that the estimated mill value of the timber harvested within the D-GN subdistrict was $136,277.64.
DISCUSSION
Summary judgment is appropriate if, reviewing the evidence in the statements of fact and record references in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(a), (c); Platz Assocs. v. Finley, 2009 ME 55, ¶ 10, 973 A.2d 743 (internal citations omitted). A fact is material if "it has the potential to affect the outcome of the suit." Id. "A genuine issue of material fact exists when the fact finder must choose between competing versions of the truth." Id. To withstand a motion for summary judgment, the non-moving party must present sufficient admissible evidence to establish a prima facie case for each element of the claim or defense. Watt v. UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897.
COUNT I
The Land Use Planning Commission (Commission) is "the planning and zoning board for the unorganized areas and deorganized areas in the State." 12 M.R.S. §§ 681, 682(1), 683-A. The Commission has zoned the unorganized areas into various zoning subdistricts and prescribed land use standards for each subdistrict. 12 M.R.S. § 685-A(1) & (3); 01-672 C.M.R. ch. 10. "A person may not commence any construction or operation of any development without a permit issued by the commission," except as otherwise provided by statute or rule. 12 M.R.S. § 685-B(1)(C). See also 12 M.R.S. § 682(7) (definition of development). Timber harvesting is a "development" that requires a permit in the D-GN subdistrict. 01-672 C.M.R. ch. 10, § 21(C)(3)(C)(22). Timber harvesting is defined to mean "[t]he cutting and removal of trees from their growing site, and the attendant operation of mobile or portable chipping mills and of cutting and skidding machinery, including the creation and use of skid trails, skid road, and winter haul roads, but not the construction or creation of land management roads." 01-672-C.M.R.ch. 10, §2(207).
Mr. Confalone, as the landowner, and S.D.R. Logging as his designated agent, submitted a Forest Operations Notification (FON) to conduct a timber harvest from January 12, 2010 to January 12, 2012, on OFLC property abutting the Resort. According to the FON, Mr. Confalone and S.D.R. Logging did not propose to harvest timber within the D-GN subdistrict on OFLC property. In 2010 or 2011 S.D.R. Logging harvested timber within the D-GN subdistrict on OFLC property and within the D-GN subdistrict on the Resort. A permit was not obtained from the Commission to conduct such timber harvesting within the D-GN subdistrict on OFLC's property or on the Resort property. As a result, those timber harvesting activities violated 12 M.R.S. § 685-B(1)(C) and the Commission rules. As the landowners of the property on which the timber harvest occurred without the required permit, OFLC and MMR are liable for those statutory and rule violations. The Affidavit of Debra Kaczowski establishes the Plaintiffs' entitlement to summary judgment on this count of the complaint. The Defendants have not generated a genuine issue of material fact that they have violated state law and Commission rules by conducting timber harvesting in the G-NP subdistrict without a permit.
There is a mystery of sorts surrounding the FON. Question 16(a) on the FON asks for a list of the zones where harvesting will occur. D-GN is included in the zones to harvested, but it was crossed out and the words "remove D-GN" written above the box. The summary judgment record provides no evidence as to who made the cross-out or who wrote the "remove D-GN" language. Regardless of who made these changes in the FON, no evidence was presented that any permit was obtained to allow harvesting in the D-GN subdistrict.
The Plaintiffs are entitled to summary judgment on Count I of the complaint. Title 12 M.R.S. § 685-C(8) provides for a civil penalty payable to the State "of not more than $10,000 for each day of violation." The summary judgment record is not sufficient, however, for the court to determine how many days of violation occurred with the timber harvesting within the D-GN subdistrict as alleged in Count I, or what amount the State is seeking as a penalty. A further hearing will be necessary for the court to determine the appropriate civil penalty.
COUNTS II AND III
The State Plaintiffs have argued that the deed restrictions at issue here may be enforced against MMR as covenants in gross, covenants appurtenant and/or as equitable servitudes. A covenant in gross "means that the benefit or burden of a servitude is not tied to ownership or occupancy of a particular unit or parcel of land." Lynch v. Town of Pelham, 104 A.3d 1047, 1053 (N.H. 2014). The State Plaintiffs acknowledge that, historically, there had to be a benefiting parcel in order for a covenant to be enforced at law against the burdened parcel. Moreover, all parties seem to agree that whether a covenant in gross can "run with the land" where the benefit is personal (non-transferable), is a question of first impression in Maine. See Andersen v. Bangor Hydro-Electric Company, supra.
A covenant appurtenant, by contrast, exists where the rights and obligations of the servitude are tied to a particular parcel or unit of land. Lynch v. Town of Pelham, 104 A.3d at 1053.
In Stickney v. City of Saco, 2001 ME 69, ¶ 32, 770 A.2d 592 the Law Court noted that an easement in gross is a personal right and generally terminates upon the death of the individual for whom it was created. In Lynch v. Town of Pelham, supra the court indicated that a covenant in gross can be either personal or could run with the land, meaning it passes automatically to successors.
On this issue, the State Plaintiffs point out that the modern and better view is that the common law requirement that there must be an abutting, benefitted parcel in order to enforce deed restrictions, is arbitrary, obsolete and of little practical value today. See Restatement (Third) of Property: Servitudes §2.6, Reporter's Notes and Comments. Moreover, the Plaintiffs emphasize that even if the common law requirement of an abutting parcel is still viable generally, it has no applicability to the sovereign. Restatement (Third) of Property: Servitudes §2.18. Cf Bennett v. Commissioner of Food & Agriculture, 576 N.E.2d 1365, 1366 (Mass. 1991) ("Where the beneficiary of the restriction is the public and the restriction reinforces a legislatively stated public purpose, old common law rules barring the creation and enforcement of easements in gross have no continuing force."). In the court's view, the common law requirement that there be an abutting, benefitted parcel in order for a covenant in gross to run with the land, makes no sense when the State is acting to impress on land it formerly owned public servitudes and covenants that are designed to benefit the public indefinitely.
Nevertheless, the State Plaintiffs contend that if the State is required to have an abutting, benefitted parcel in order to enforce the deed restrictions, it does in fact own such a parcel, namely, the Summit Parcel. The court agrees.
"For the burden of a restrictive covenant to run at law the covenant must (1) touch and concern the land; (2) be intended to run by the original parties; and (3) there must be privity of estate." Anderson v. Bangor Hydr-Elec. Co. 2012 WL 10467424, at *2 (Me. Super. Ct) (09/21/2012) (Anderson, J.). As observed in Stern v. Metro. Water Dist. of Salt Lake & Sandy, 274 P.3d 935, 947 (Ut. 2012), to touch and concern the land means that the covenants "must be of such character that [their] performance or nonperformance will so affect the use, value, or enjoyment of the land itself that it must be regarded as an integral part of the property." (citation omitted). The deed restrictions at issue here meet that standard because they limit the use of the property and affect its market value, among other things. The element that there must be privity of estate is also satisfied here because MMR is the successor-in-interest of BSMC and took ownership of the property subject to the same deed restrictions.
Moreover, it is clear from the 1986 deed and the Financial Order authorizing the sale of the Resort that the State and BSMC intended the deed restrictions to run with the land. The deed restrictions, which use the passive voice and do not reference BSMC, were intended to fulfill the requirements of the Financial Order preventing waste of the property's timber resources and ensuring that the specifically identified ski rails and lift lines would remain available for public use. Those purposes could not be achieved if the deed restrictions were merely personal to BSMC. Even if there were some ambiguity in the intent of the State and BSMC that the restrictions were to run with the land, any ambiguity should be resolved in favor of the State. Great Cove Boat Club v. Bureau of Public Lands, 672 A.2d 91, 94 (Me. 1996) (public grants are "strictly construed" against the grantee); Cushing v. State, 434 A.2d 486, 500 (Me. 1981). See also Home for Aged Women v. Commonwealth, 89N.E. 124, 129 (Mass. 1909).
The language of the public use restrictions in the deeds conveying the Resort to the State, coupled with the 1986 RFP, the purchase agreement, the financial order, internal State communications and communications between BSMC and the State -particularly BSMC's request (rejected by the State) that the public use restrictions be limited to ten years - reinforce the language of the deed itself, namely, the State and BSMC intended the timber harvesting restriction and the public use restriction to run with the land and to last indefinitely. Because the State may create enforceable covenants in gross, and because the summary judgment record establishes that the timber harvesting and public use restrictions touch and concern the Resort, were intended by the State and BSMC to run with the land, and that privity of estate exists, the deed restrictions are enforceable against MMR at law.
The deed restrictions are also enforceable in equity because the restrictions: (1) touch and concern the land; (2) were intended to run with the land by the original parties, and; (3) the successor-in-interest (MMR) to the burdened land had notice of the restrictions. See Anderson, 2012 WL 10467424, *3. Moreover, the deed restrictions are reasonable. See Dale Henderson Logging, Inc., 2012 ME 99, ¶ 27, 48 A.3d 233. The restrictions are reasonable because: they do not require maintenance or operation of the hotel; they do not require any additional ski trails or lifts; they do not require that public access be free of charge, and; they permit timber harvesting for specified reasons and purposes related to the operation of the Ski Area and the Resort.
Finally, the summary judgment record establishes that MMR has breached the timber harvesting and public use restrictions. During 2010-2011, timber was harvested from several distinct areas on the Resort property, each of which was within parcel FIRST and/or SECOND as those parcels are described in the 1986 and 1995 deeds. Accordingly, and because the summary judgment record does not establish that the timber harvesting that was done fell within one or more of the exceptions to the timber harvesting restrictions, the State is entitled to summary judgment on Count II of the complaint. See Androkites v. White, 2010 ME 133, ¶ 19, 10 A.3d 677 ("[I]n a civil case, the party to a proceeding who has better access to information and is seeking the benefit or protection of a law has the burden of proof on that point.").
Regarding the public use restrictions, the lift serving the upper mountain has not operated since 2004, nor has it been replaced with another lift serving the upper mountain trails as delineated and depicted in Exhibits B and C to the 1986 deed and in subsequent deeds. The lower mountain was closed for several seasons prior to 2013, at which time the non-profit Friends of the Mountain began operating the lower mountain only on a limited basis. Such use, particularly the complete closure of the upper mountain, falls short of providing the public continued access to the trails and lift lines expressly depicted in Exhibits B and C to the deed. As a result, the State is entitled to summary judgment on Count III of the complaint.
WAIVER. LACK OF DEMAND AND LACHES
MMR has raised the defense of waiver, claiming that the State waived its right to sue to enforce the deed restrictions by not rigorously enforcing them against prior owners of the Resort. This argument is unconvincing. First, the defense of waiver was not raised as a defense in MMR's answer. Second, waiver requires a clear and unequivocal abandonment. Here, the fact that the State allowed time to pass to permit MMR to voluntarily come into compliance with the deed restrictions does not establish a waiver.
Next, MMR claims that the State was required to make a demand upon it to comply with the deed restrictions prior to commencing suit. These restrictions are public use restrictions and, as such, the right of the State to seek to enforce them is not dependent on a formal demand.
Finally, MMR asserts the equitable defense of laches. The Law Court has recently reaffirmed that "[l]aches cannot be predicated on passage of time alone." Quirk v. Quirk, 2020 ME 132, ¶ 12, ___ A.3d ___. The delay must be unreasonable and unexplained. Moreover, there must be a showing of prejudice to the adverse party and it must be inequitable to enforce the right. The passage of time involved here is not unreasonable when it comes to the enforcement of public use restrictions. Moreover, MMR has not shown that it has been prejudiced in any way.
REMEDIES
Summary judgment will be granted to the State Plaintiffs on Counts I, II and III of the complaint. Since Count V (Unjust Enrichment) was pled in the alternative to Counts II and III, it is now moot.
As to Count I, the court finds that MMR and OFLC, Inc. engaged in timber harvesting within D-GN subdistricts without a permit from the Land Use Planning Commission in violation of 12 M.R.S. § 685-B(1)(C). A further hearing is necessary for the court to determine the appropriate civil penalty pursuant to 12 M.R.S. § 685-C(8).
As to Count II, the court declares that MMR violated the timber harvesting deed restrictions and the State is entitled to the estimated mill value of the timber harvested in violation of those deed restrictions, namely, $136,277.64.
As to Count III, the court declares that MMR is in violation of the public use deed restrictions. The State Plaintiffs have requested the court to order MMR to pay into an escrow account, administered by the State, an amount sufficient to bring the Resort into compliance with the public use restrictions, and to post a performance bond of 51, 000, 000 conditioned upon MMR bringing the Resort into compliance with the public use restrictions. An additional hearing will be necessary for the court to receive evidence and information from the parties as to the appropriate amount to be deposited into an escrow account and the size of any performance bond to be posted by MMR.
CONCLUSION
The entry is:
Plaintiffs' Motion for Summary judgment as to Counts I, II and III of the complaint is GRANTED. Count V of the complaint is MOOT.
The Clerk shall consult with counsel for the parties and shall schedule a hearing, via video, to address: (a) the amount of any civil penalty under Count 1, and (b) the amount MMR will be required to deposit into an escrow account and the size of any performance bond to be posted by MMR.
The Clerk is directed to incorporate this Order into the docket of this case by reference in accordance with M.R. Civ. P. 79(a).