KITTERY, Maine — The debate over Spinney Creek Shellfish’s aquaculture proposal returned to town Tuesday night, as the applicant and its opponents met for a reopened evidence hearing, but this time, with their attorneys.
In October, the state Department of Marine Resources announced it would reopen the record ahead of its decision on the oyster company’s proposed 3.67-acre experimental lease, after residents asserted property ownership down to the low tide mark of Spinney Creek. The second hearing was held Tuesday at the Kittery Community Center’s Star Theatre, following an initial adjudicatory hearing at Traip Academy on Sept. 27.
Spinney Creek Shellfish’s aquaculture application, which, if approved would allow owners Lori and Tom Howell to expand to a maximum of 800 cages, has become about much more than oysters. It’s now a matter of land and marine law, as officials and residents grapple over who owns the submerged land, as well as the possibility that the body of water may be an intertidal zone if a manmade flood gate hadn’t been installed.
If determined intertidal, the town of Kittery would have jurisdiction over the aquaculture proposal, because per state law, municipalities with a shellfish conservation program in place have that right.
Spinney Creek is split between the towns of Kittery and Eliot, and the oyster company sits on the Eliot side.
James and Filomena Knowles own property on the Kittery side of the creek that would see the most frontage to the Howells’ proposed expansion. In a letter to DMR Commissioner Patrick Keliher in October, the Knowleses asserted many deeds of riparian owners on Spinney Creek convey ownership to the middle of the creek itself. They claimed that without the tidal gate that closes off the creek to the Piscataqua River, the body of water would be intertidal, with the aquaculture contraptions ultimately resting on their privately-owned land at low tide.
But whether or not the Knowleses actually own the adjoining shores and flats was contested Tuesday by experts hired by the Howells, despite a local surveyor’s adamant opinion that they do in fact assert ownership. The hearing brought up colonial ordinances and even a land lot survey dating back to 1697.
Sally Mills, an attorney representing the Knowleses, said there is “case law galore” supporting property ownership to the low tide mark. She argued the Howells’ application lies over land that was once exposed flats prior to Maine DOT’s installation of an “artificial barrier;” the flood gate closing off the creek from the Piscataqua River.
Owner of Tidewater Engineering and Surveying, Ryan McCarthy testified he established elevations of the creek bed and compared them to published data.
“Spinney Creek poses a unique situation because the flood gate restricts a natural ebb and flow of the tide,” McCarthy said. “The question becomes how does this gate and the artificial control of the water level impact the riparian boundaries?” McCarthy said in his professional opinion, it did not, and that boundaries don’t change no matter where the water is.
McCarthy also said prior deeds he reviewed, going back before 1920, asserted ownership to the low tide mark. The flood gate was installed in 1938.
Attorney Sandra Guay, representing the Howells, argued the submerged land was never deeded or conveyed to the Knowleses or their predecessors. Colonial ordinance, she said, only gives a presumption of ownership, which is defeated by the absence of explicit conveyance in the deed.
Based on their evidence, Guay said the Howells’ aquaculture operation would lie no closer than 127 feet to the Knowleses' property. She also argued the creek is subtidal and held in trust by the state of Maine.
Guay said she wanted to put on the record that Spinney Creek Shellfish objected to the reopening of the public hearing, as the issue of land ownership could have been raised earlier in the process. The Howells, she said, are already seeing expenses based on their application’s delays and are “at risk now of losing a growing season.”
“These continued delays are causing real harm to Spinney Creek Shellfish,” she said.
The Howells called on land surveyor Christopher Mende to testify, who argued the Knowleses have “no basis for a claim of conveyance of intertidal lands in the deeds of the two affected land parcels.”
In reviewing York County deeds, he said, nothing reflected designated ownership of the submerged land.
Mende could not say certainly who the land is owned by, but was confident it’s not the Knowleses.
When asked if the flood gate and causeway were removed, would the creek become an intertidal zone, Mende said yes.
Kittery Town Manager Kendra Amaral was the only person to speak during the public testimony portion of the hearing. She wanted to “put it on record” that Kittery has a shellfish conservation ordinance, and that if the creek is determined to be intertidal, the town has jurisdiction over the DMR, who decides on aquaculture leases across the state.
“We want to make sure that that is not lost in this,” she said.
Guay questioned Amaral if she knew that various versions of Kittery’s Comprehensive Plan reference Spinney Creek as subtidal. Amaral responded the plan is not an official record of fact.