The Clary Lake Association has made an offer of $1000 to purchase Clary Lake dam in Whitefield.
According to company manager Paul Kelley, Pleasant Pond Mill LLC had received no notice of that offer as of April 30. The offer was mailed to PPM’s Camden office and sent to Kelley’s personal email address on April 29. Kelly said April 30 he does not accept business correspondence at that email address.
The Whitefield Board of Selectmen grappled with the pace of actions in regard to the possible sale of the dam, when they held a hearing into the matter April 30. Approximately 25 Whitefield taxpayers attended the hearing.
Last month Kelley petitioned the Department of Environmental Protection to release PPM from dam ownership and water level maintenance, saying the company wished to find someone to take over the dam. Kelley suggested the towns of Whitefield and Jefferson might be interested.
In addition to concerns about whether the town could work within the mandatory schedule for PPM’s request, selectmen and others at the meeting questioned whether anyone would purchase the dam while the ownership status of a building atop the dam and the so-called flowage rights past the dam is in question.
Kelley said PPM purchased the mill building and mill dam on the west side of Mills Road in Whitefield in 2003, before he became a member of that company. In 2006, Kelley joined as a member and PPM purchased the Clary Lake dam.
In 2010, the mill building, mill dam, house atop Clary Lake dam and a one-acre lot adjacent to that building on the west side of the road were sold to another entity, Aquafortis Associates, LLC.
Kelley said at the Whitefield meeting that “outside of a commercial relationship, I’m not talking to Aquafortis about anything.”
At their April 8 meeting, the Jefferson Board of Selectmen briefly touched on the issue. The consensus of the board was that they had no interest in taking possession of the dam, which is in Whitefield.
At the April 22 meeting of the Jefferson board, Clary Lake Association member George Fergusson said Maine law requires a sale, even if only the cost of transfer is offered and PPM would have to keep the dam if no buyer appears. In an April 27 letter, Fergusson asked DEP Project Manager Kathy Howatt to “immediately dismiss” PPM’s petition, “because they do not own the flowage rights.”
In his April 30 letter, CLA President Ellis Percy told Kelley the association would require title to the dam and the land under it; title to “equipment and other personal property normally located at the dam site, flowage rights and access rights.”
Specifically, Percy cited the March 2006 deed transferring ownership from Arthur Enos to PPM, recorded at the Lincoln County Registry of Deeds in Book 3651, Page 224.
He also requested rights to the hand-wheel used to open and close the dam’s gate and a permanent easement for truck, equipment and foot passage that PPM received from Stephen Chase Smith in a Nov. 2006 deed recorded on Book 3771, Page 190, “said easement to allow complete and full access to the real estate” described in the Enos deed, as well as “access to the so-called Narrow Gauge Rail Road abutment area for the purposes of constructing a temporary coffer dam at any time in the future,” according to the offer letter.
Three days previously, Percy wrote to Kelley, asking for permission to have Falmouth engineers Kleinschmidt Associates conduct an assessment of the dam. Percy said CLA would pay for the study and make results available to PPM.
“Regardless of the outcome of petitions before the state, and regardless of who ends up owning the dam, it will need to be repaired and a current engineering assessment will be invaluable to whomever ends up doing the work,” Percy wrote in his April 27 letter.
Kelly told selectmen at the Whitefield meeting PPM had not received any communication from Percy.
The Whitefield board asked Kelley to confirm, by May 10, that he was empowered to transfer ownership of the flowage rights along with the sale of the dam, and to provide them with an estimate for the cost to transfer ownership as well as the amount of other compensation he is requesting for the property.
They also wrote to Howatt, asking DEP to make a prompt determination in regard to the flowage rights, in order to prevent the town’s scheduling unnecessary or redundant meetings.
The board presented citizens at the hearing with an outline of the situation that included a series of eight potential outcomes. Those included CLA buying the dam without flowage rights; the town making a similar purchase; other parties buying the property; PPM withdrawing its petition or the state taking ownership.
A final possibility, in which no one expressed interest, is owning the dam, that would result in the dam being breached and lead to dramatic changes in Clary Lake and its shore.
David Hayden told the board the status of the building atop the dam must be settled before citizens can properly weigh in on any options.
“That building depends on the dam for stability,” Hayden said.
Selectman Dennis Merrill suggested the house should be thought of as a “mobile home'” that is owned separately from the land on which it sits.
Kelley said the house is supported on one side by the dam, on a second side by a wing wall of the dam and on a third side by the Route 218 abutment. Support for the building’s fourth wall is “open,” he said.
John DelVecchio asked why PPM does not want to keep the dam?
“Pleasant Pond Mill LLC found itself the owner of a property that has no viable commercial use, and no prospect of that.” Kelley said. He said in addition to significant costs to maintain the structure, the dam represents “an extraordinary liability.”
“The dam breached with Hurricane Irene [in 2011],” he said. “It has a hole in it.” He said there is no way to guarantee the water in the lake can be held back by the 118-year-old dam.
Kelley said he never expected to make a lot of money from renovating the historic site, but that there is “now the potential for catastrophic failure that would be a tragedy for the town, the mill owner and abutting property owners.”
He said a mortgage exists between PPM and Enos, and that no payments have been made “in a number of years.” In answer to requests, Kelley said he could not estimate the total now owed.
“The mortgage holder has not called the note, because that would mean he would get the dam back,” Kelley said.
When asked for a show of hands, approximately one third of those present said they would like to see Whitefield own the dam.
Ten or more said they would be willing to pay higher taxes to support that decision. Others expressed concern that Jefferson property owners might benefit from such a situation, while not paying for it.
Percy reminded selectmen that there is a financial incentive to both Whitefield and Jefferson residents in terms of lower insurance rates as a result of having a water source available for fire fighting.
The Whitefield Board of Selectmen voted unanimously to scheduling a special town meeting on Thursday, May 30 to take action on the matter. The exact time and location are yet to be determined.
If voters choose to purchase the property another meeting would need to be held to authorize the funds.
If the flowage rights issue is clarified in time, Jefferson voters will weigh in on the issue at their own special town meeting Tuesday, May 21 when they review their education budget.
Fergusson said last summer he initiated the water level petition because other efforts to get PPM to repair the dam had failed. He said the association’s main interest is in protecting the health and welfare of the lake.
In an April 29 letter to Howatt, Fergusson asserted a state law calling for transferred property rights to include “all property rights necessary to maintain and operated the dam, to the extent owned by the dam owner,” requires flowage rights to be included in the sale.
“Who is going to want the Clary Lake dam without the necessary property rights to own and operate it?” he asked in his letter.
Meanwhile, Kelley has written to DEP Hearing Officer Heather Parent, asking her to strike or ignore comments and evidence submitted by Fergusson following the end of the Aug. 17, 2012 hearing into the lake level petition. Kelley claims no evidence should be considered that was received after the close of that hearing.
On April 3 the Bureau of Land & Water Quality, Division of Environmental Assessment recommended to DEP that water levels in Clary Lake be maintained within a range of fluctuation “not to exceed 2.0 feet, which approximates 17 percent of the total lake volume and 14 percent of the total lake surface area with the lake level set at normal high water.”
Parties to the lake level petition, which DEP is still considering, may submit written questions or comments on the documents no later than May 9.
Questions and comments must be copied to all parties on the service list for the case. Additional time to review the documentation may be granted on request. The petition file number is #L-22585-36-B-N.
For more information, contact Project Manager Beth Callahan at 446-1586 or beth.callahan@maine.gov.
