A lawsuit against the Town of Whitefield and its appeal board has been dismissed in Lincoln County Superior Court.
In issuing his order Jan. 26, Justice Andrew M. Horton described the complaint filed by Pleasant Pond Limited Liability Company (PPM LLC) and developer Paul Kelley Jr., of Camden, a PPM member, “lengthy and in significant respects confusing, regarding both the factual history recited and its legal claims.”
Attorneys Mark Franco and Tom Marzcak representing the town filed the motion to dismiss last September, about a month after Kelley filed his 13-page complaint. There was no agreement at a Jan. 13 mediation session between the parties.
That mediation, commented Marzcak this week, was unusual because, “normally we don’t do mediation on land use cases.”
Had a decision been reached it would not have been legally binding, he said. “The unique thing about this case is the mediation being used was a kind used in a civil lawsuit where Party A has a claim against Party B,” where there are clearly defined issues, and money is one of those issues.
Kelley has said he is not interested in financial claims and money was not part of the Jan. 13 discussion.
At issue in PPM LLC and Paul Kelley Jr. vs. Town of Whitefield and Board of Appeals are planning board denials and appeals board action upholding those denials of the company’s applications seeking to rehabilitate buildings located on the Clary Mill Complex in North Whitefield.
Restrictive shoreland zone rules and the town’s minimum lot size ordinance govern activity on the small acreage where a dam, millhouse and mill, which is now listed on the National Register of Historic Places, have stood for more than 100 years.
In his suit, Kelley argued the town has failed, despite having state shoreland standards “imposed” on it in the 1990s, to apply those rules, which allow greater flexibility. State regulations allow conditional uses and special exceptions on properties such as his, located close to the high water mark, and they waive the strict application of setbacks.
Whitefield requires a 100-ft. setback from the normal high water mark for buildings in the shoreland zone, compared to the state’s 200 ft. setback.
Other claims are that the town violated the Freedom of Access (FOA) law by denying the plaintiff access to public records.
Kelley said the judgment is “very narrow” and that he and his company “have the right to appeal and to ask the court to alter or amend the judgment.” He also said the decision “doesn’t touch the question of the constitutional validity of Whitefield’s local shoreland ordinance” and is based strictly on time limits.
The appeals board, in a letter dated June 22, 2009, reiterated its previous vote to deny Kelley’s request for a variance. Chairman Andrew Berry wrote, “At the June 16 meeting the Board voted 4-0 to re-confirm its vote of 12-17-07 upholding the Planning Board’s denial…”
In filing his complaint on Aug. 7, the developer did not meet either window.
According to the Superior Court order, Kelley also erred in signing the complaint for himself and as a member of Pleasant Pond Mill LLC.
Inferring that the plaintiff is not an attorney because he provided no Maine bar number, Horton writes, “A limited liability company must be represented by an attorney.”
Violating the law on this point is a Class E crime, and by not having a licensed attorney sign the complaint, “the complaint is a ‘nullity’… and must be dismissed as to Pleasant Pond,” although Kelley “may, of course, represent himself.”
Addressing the FOA claims, the order states the plaintiff’s complaint does not specify documents sought or any particular denial to access of records. “Moreover, the appeal period for a Freedom of Access violation is five working days after receipt of denial of access,” Horton writes. He concludes the defendants are entitled to have such claims dismissed.
The final section of the legal analysis tackles the plaintiff’s request for “declaratory relief,” based on Kelley’s allegations that Whitefield’s shoreland ordinance has been made void by state agency regulations and/or it can’t be used in conjunction with the state’s rules. Trying to apply both ordinances is too confusing and “capricious,” the plaintiff says, depriving him of due process.
Justice Horton finds two problems with the declaratory judgment claims. One is that the request is “so sweeping and generalized that the court likely would decline, in its discretion, to entertain it.” More compelling is the fact that the plaintiff appealed to the court under Maine Civil Court Procedure Rule 80B, the only mechanism for appealing an action by a municipal body.
Under that rule, his complaint has been dismissed because it wasn’t filed in time.
The plaintiff, Horton writes, “cannot bypass the requirements of Rule 80B by bringing a declaratory judgment action.” Both the judge and the town’s attorneys in their motion to dismiss cited a 2005 law court ruling (Sold vs. Gorham). That decision stated that Rule 80B is the only means for seeking Superior Court review of action, or failure or refusal to act, by a governmental agency.
Citing the case in the Dec. 3 motion on behalf of Whitefield, Franco argued, “Regardless of how Plaintiff may now attempt to cast his challenge, Maine law requires adherence to ‘explicit provisions requiring timely appeals to promote finality of administrative actions.'” Otherwise, judicial thinking goes, municipalities would be trying to conduct business under a cloud of seemingly unending uncertainty.
Kelley has until Feb. 16 to appeal the decision to the law court.
Representing himself in his lawsuit was a way “to show our commitment to that property.” Should he move forward with an appeal, part of what he would ask concerns the appeals board’s June 22 letter stating its decision. “It is disputed what that letter purports to be,” Kelley said.
He attended the selectmen’s regular Monday evening meeting to renew his August 2007 request for documents, specifically records on appeals board findings. He noted that his complaint made requests that the Superior Court judgment did not address: namely, a formal finding on the appeals board’s denying PPM LLC a variance.
He said he wanted to search town records, including appeals board notes and selectmen’s minutes, for any reference to the variance he was seeking.
“It’s possible the board never made a variance finding,” the developer said. “If so, we’re happy to return to the appeals board on that question and have the record clear.”
Others wanting to sit in on such a hearing to share “options for the property” would be welcome, Kelley said. “We’re open to other ideas.”
