Whitefield selectmen recently received word that a legal action initiated by developer Paul A. Kelley Jr. concerning his Pleasant Pond Mill LLC property on Mills Road, Rt. 218, is over.
Responding to notification by Thompson & Bowie attorney Tom Marczak that the law court (Maine Supreme Court) dismissed Kelley’s appeal, board chairman Steve McCormick said, “He’s done.”
The Portland based law firm represented the town through the Maine Municipal Association, which provided financial assistance for the suit.
Kelley, of Camden, did not respond to a request for comment.
While the action ends the firm’s role in defending the town and its board of appeals, it does not necessarily curtail the developer’s vision for commercial and residential uses of the approximately four-acre Clary Mill shoreland site. Whitefield voters’ rejection last November of the town’s original and recently revised local shoreland zone rules leaves the door open for the state’s less restrictive regulations to be imposed, a situation that could work in PPM LLC’s favor.
In Aug. 2009, Kelley filed a complaint in Lincoln County Superior Court against the town and its appeals board concerning the latter’s decision to uphold planning board denials of development plans for the site.
An attempt to settle the matter in an unusual mediation session last January was unsuccessful. After the results of that private session were forwarded to Justice Andrew Horton, the judge dismissed the complaint. Horton described it as “in significant respects confusing, regarding both the factual history and its legal claims.”
Having acquired more documents to bolster his original complaint, Kelley subsequently filed two motions asking for reconsideration of the judgment and amendment of his complaint and/or a new trial. Subsequent opposing motions led to a July 29 Superior Court hearing in the judge’s chamber, after which Horton denied Kelley’s request for reconsideration.
Normally, such a request, to be successful, depends on new evidence being discovered during a trial or hearing, not after a case has been dismissed without having gone to trial or hearing.
Again, on Nov. 9, Kelley appealed, this time to the Supreme Judicial Court. He requested that the matter be returned to the appeals board or planning board for reconsideration because the town had rescinded its 1973 shoreland ordinance on Nov. 2; that judicial action be suspended until local planners issued a final determination; and/or that he be granted an extension of time.
Marczak said that while he did not object to the request for extension, “it was up to the court to decide. We were on track to have the law court hear the appeal but Paul Kelley never filed a brief. We didn’t join in the motion for extension but we didn’t object to it, either.”
Kelley failed to file by the Nov. 29, 2010, deadline and moved that his appeal be dismissed “without prejudice.” The maneuver would have kept the appeal “live,” that is, suspended so it could be pressed at a later time. However, the court’s Dec. 10 dismissal order states, “(T)he Court does not have the authority to allow him to appeal from the same judgment again,” and it therefore did not grant the “without prejudice” part of Kelley’s motion.