Searsport man ordered to move wall Court upholds DOT demand to relocate decades-old stone structure

SEARSPORT – Doug Latham fought for the wall and the wall lost.

The state Department of Transportation has decided that a rock wall along the Mount Ephraim Road in Waldo County is a safety hazard, so it obtained a court order forcing Latham to remove it.

Latham argued to no avail that the wall was “grandfathered,” and that many other walls and structures along the road could be considered hazards as well. It is nine feet from the edge of the pavement and is likely more than a century old.

Despite that, Superior Court Justice Jeffrey Hjelm ruled in May that the 150-foot-long wall needed to be removed from the state’s 33-foot-wide right of way, and he gave Latham 90 days to do so.

The clock runs out on Friday, after which Latham will be liable for a $100-per-day fine. He is moving it.

“I’m warning people to be very careful about who they give a right of way to. You never know when it will come back to get you,” Latham said. “Fortunately for me, I have the equipment and am still young enough to move it. But, unfortunately, I think of all the grandfathers and older guys, and what would they do?”

Latham quotes state law as saying a structure within a right of way is grandfathered if it was erected before 1949. Latham’s home was built in 1826, and he has aerial photographs from 1939 that show the stone wall in front of his house.

However, because Latham had repaired the wall over the years, the judge ruled the grandfather clause no longer applied.

“The court finds that the magnitude of this restoration and rebuilding is so extensive as to constitute construction,” Hjelm wrote in his decision. “As a matter of historical fact, there was a stonewall in the present location prior to the time Latham acquired the property and restored it. This does not detract from the reality, however, that Latham substantially disassembled that decrepit wall and gave it new form by putting the old components together.”

Latham, who said it cost him $3,000 in legal fees to fight DOT, thinks the Legislature ought to look into the matter. He suggested there should be some form of independent mediation similar to the way workers’ compensation cases are handled.

“There ought to be some other arena to get it resolved other than the agency you have the problem with,” he said. “Otherwise, the ordinary citizen doesn’t have a chance.”

Latham said he was approached by DOT when he began rebuilding the wall in the 1980s. He said that when he reminded the DOT employee that the wall was grandfathered, the DOT representative said he would get back to him. Latham said that never happened.

Justice Hjelm ruled that the discussions between Latham and DOT fell “well short” of a definitive resolution of the disagreement.

“Had I left it alone, it would have been grandfathered,” Latham said. “Because I restored it, because I beautified it, it became a new structure.”

DOT attorney Eric Wright said that once the department determined the wall was a safety hazard, the department had no choice other than pressing for its removal.

He said DOT offered to remove the wall for Latham, but he declined the offer. Latham said DOT would have bulldozed the wall from the easement, while he wanted it moved and rebuilt.

“The remedy for [the state] was to go to court,” Wright said. “He had his day in court to make his case and the case got decided.”

As to Latham’s suggestion that DOT would be taking action against other walls, Wright said the department acts only when it is confronted with a clearly defined problem.

“It’s not like we have some supersleuth who goes out and looks at walls in rights of way,” Wright said. “While I am sure there are other walls across the state that are hazards, it’s not like we singled him out. Based on the information we received, and the observations of the employees of this department, we determined that this was a hazard.”

Latham said he does not understand the need to remove the wall. He said there never was an accident at the wall and DOT had no plans to widen Mount Ephraim Road, a popular rural route that connects U.S. Route 1 with a road near Swan Lake.

He suggested the agency look closer to home before targeting private property owners.

“The galling thing is, you can go to the DOT office in Augusta and you will find a stone wall on their property that is closer to the road than mine is,” he said.