Litigation between the town of Alna and resident Jeff Spinney has ended after three years and three lawsuits, with a settlement agreement signed Thursday, Oct. 19 following an impassioned public hearing.
The agreement leaves Spinney’s Sheepscot River boat ramp in place with limitations on use and the acknowledgement it is illegal under town ordinances. Both parties will drop pending litigation and pay their own attorney fees.
According to the settlement document, Spinney applied to the Alna Planning Board in February 2020 to resurface and regrade his boat ramp, as well as make a pier alteration, which he dropped from the project two months later. The Maine Department of Environmental Protection issued a permit with the condition of local approvals that March.
A 2-2 vote by the planning board in June 2020 denied Spinney’s application, a decision the Alna Board of Appeals upheld in October 2020. Spinney filed an updated second application for earth work on the existing ramp and use of a seasonal aluminum mat and separately entered court mediation with the town.
In December 2020, the planning board approved his second application and the code enforcement officer issued a permit. Spinney then completed the resurfacing and grading work. The same week, he and Doug Baston and Greg Shute, members of the select board at the time, agreed on a settlement draft and voted to enter it. Melissa Spinney, the third member of the board at the time, is married to Jeff Spinney and recused herself from the settlement vote.
Baston and Shute did not seek reelection when their terms expired in March 2021. Charlie Culbertson and Linda Kristan were elected to the board. Melissa Spinney resigned from the board in April 2021. Ed Pentaleri was elected to fill the empty seat that December.
Pentaleri, who remains on the board, was censured from discussion of the project in June after resident Ralph Hilton filed an ethics complaint around his advocacy against the ramp as a private citizen. Board members Steven Graham and Coreysha Stone voted for the censure to avoid appearance of bias.
Multiple residents and abutters appealed the planning board’s second approval, which the board of appeals overturned in March 2021. The town issued Spinney a notice of violation in November 2021. He did not undo the work, leading the town to file a land use enforcement action which was still pending on Oct. 19.
The previous settlement agreement was ruled invalid by Lincoln County Superior Court last November because the select board did not have the authority to enter it, according to Justice Daniel Billings.
Spinney filed an appeal of the board of appeals’ two decisions, which was still pending in Lincoln County Superior Court before the settlement.
According to the settlement document, the town and Spinney wanted to avoid further expense by agreeing to enter the proposed final judgment and order on the case of Town of Alna v. Jeffry A. Spinney.
A public hearing on the document Oct. 19 opened with comments from both parties’ attorneys, who emphasized the outcome of the case, and specifically the town’s ability to recover its legal fees, was uncertain if proceedings continued. Drummond Woodsum attorney David Kallin represented the town and Kristin Collins, of Preti Flaherty, represented Spinney.
The judgment finds Spinney’s ramp illegal under Alna’s shoreland zoning and building code ordinances, one major departure from the 2021 agreement. Kallin said this finding should prevent establishing a precedent allowing other landowners to do similar work.
“This is a settlement that essentially leaves unclear who might have won in the end (in court),” Kallin said. “It sets a clear interpretive principle going forward for what the ordinance means.”
Collins also said the outcome of the case is uncertain and risky, noting special circumstances that could lead to a ruling in Spinney’s favor. According to Collins, arguments could be made about the ramp’s previous use and maintenance, along with a need for erosion control.
The later discovery that a board of appeals member who voted to overturn planning board approval was not a Maine resident and written communication from Tom McKenzie, the town’s then-code enforcement officer, were two more points Collins said could turn a ruling for her client.
She would also plan to ask the court for Spinney’s legal fees, and said the judge has awarded fees against towns in the past. Even if the Alna won, Spinney would appeal.
“We are on the precipice now of getting into these appeals, which are monumental in scope,” Collins said.
She told the board to expect the process to cost at least another $100,000, an estimated figure of fees paid by the town so far.
“I know we are,” she said.
Collins believes state statute would require the ramp to remain regardless because of erosion resulting from its removal.
Forty minutes of comment followed from involved parties, most of them abutters, before open comment. All spoke against the agreement, saying it did not take into account abutters, sent a bad message, and lacked consequences.
“A settlement is one thing, and a surrender is another,” abutter Allen Philbrick said.
Philbrick noted the ordinance’s language that violating structures should be removed unless doing so “will” cause more harm is not in line with the settlement’s statement of “potential” harm from removal.
Other commenters objected to the right to use and maintain the ramp transferring if Spinney sold it and questioned how or if limits on the type of craft there and the number of people launching would be enforced.
Abutter Carol Ervin said the decision would send the message that anyone with enough money can violate ordinances because the town would fold during litigation.
“If the judgment is signed, he will have won,” abutter Bill Weary said.
Cathy Johnson, current chair of the planning board and one of the original appellants of the project’s approval, said the draft undermines the authority of town boards. Johnson also said past violators of the land use ordinance were fined.
Several residents were represented by attorney Mark Bower, who took issue with the court ruling, Pike v. Westbrook, cited as a precedent in the judgment. He said the case set changes to land use ordinances should follow town procedure, which for Alna would require a town meeting rather than the public hearing.
Kallin said in later comment that the judgment was not attempting to modify the land use ordinance.
Inquiries to Bower about whether he intended to file suit as a result of the decision were not returned by press time.
Public comment followed from seven residents in support of the settlement and eight against it, plus one who said he did not know what the answer was.
Objectors noted river protection, concern about the possibility of motorboat use, and the message sent by the settlement. Supporters said it was time to end litigation, referenced previous use of the ramp and unsuitability of the river for motorized traffic, and said the agreement made common sense.
During select board deliberation, Graham and Stone both said they had not been bullied into the agreement and did consider questions raised by residents.
“I have thought about this in every possible way I could,” Stone said.
Both discussed the cost and uncertainty of moving ahead with litigation, even if abutters were to sue otherwise.
Graham said the board relies on its legal counsel to create a judgment that would withstand a legal challenge and has to trust that.
“There’s no way anyone could say Alna doesn’t enforce its ordinances,” Stone said. “Litigation, to a certain point, is enforcement.”
Both agreed the certainty of the agreement outweighed the risk of continuing.
“It certainly doesn’t seem like it’s a slam dunk for us to get a ruling in our favor,” Stone said.
Graham also said the nature of the settlement agreement involves compromise.
Kallin said in response to audience concerns that the select board can settle in this case because court action was pending against it. According to Kallin, Pike v. Westbrook is applicable because the judgment does not attempt to amend the shoreland zoning ordinance, and if a suit was brought the town could seek declaratory judgment action at trial court.
In ending remarks, board members repeated the certainty of the agreement. Graham said the town will also be able to focus on other issues if the board is not addressing the litigation for years. Both voted in favor of entering the judgment.
“It does feel like it’s time to move forward,” Stone said.
The Alna Select Board next meets at 6 p.m. on Thursday, Nov. 2 in the town office.