Dispute over rail crossing in court Justices to decide Waterworks’ fate

PORTLAND – The fate of the Bangor Waterworks rests with the seven justices of the Maine Supreme Judicial Court.

Maine Central Railroad is asking the court to reverse a decision that granted the city of Bangor a public crossing at the site of the decaying building slated to be refurbished as affordable housing units.

The court is scheduled to hear arguments today in the case.

At issue is a railroad crossing along State Street that would allow vehicular and pedestrian access to the city-owned Bangor Waterworks site, the subject of a $6 million redevelopment plan that would convert the complex of brick structures into 35 rent-subsidized efficiency apartments for low-income adults.

Shaw House Development Inc., a for-profit subsidiary of Shaw House Inc., the nonprofit group that owns a shelter for homeless teens on Union Street, is working to acquire the property that has been vacant since the 1970s. In addition to helping meet the need for affordable housing, the project, city officials believe, would preserve the historic complex that has been deteriorating rapidly for the past several years.

If the Maine supreme court were to rule in the railroad’s favor, the project would be delayed further, John Hamer, assistant city solicitor, said Monday.

Efforts made Monday to reach representatives of the railroad were unsuccessful.

The justices could affirm the decision so the project could proceed or remand it to the DOT for further hearings. The court is not expected to issue a decision for months.

Superior Court Justice Andrew Mead in March upheld the June 2003 decision by the Department of Transportation to approve the crossing. Citing safety concerns, the railroad appealed Mead’s decision to the Maine supreme court.

The railroad’s attorney, Frederick Badger of Bangor, today is expected to argue that the DOT exceeded its statutory authority and acted in violation of constitutional and statutory provision by making a finding of public use and public need for the project.

In its appeal in Penobscot County Superior Court, the railroad argued that:

. The proposed crossing “is not for a sufficiently public use,” and that the DOT decision did not provide just compensation, which makes it an unconstitutional taking.

. The DOT exceeded its legal authority because the authority it relies on does not provide it the power of eminent domain, making its decision an illegal and improper taking.

Despite the continued legal wrangling with the railroad, the Bangor City Council voted in August to take by eminent domain the land needed for access to the waterworks.