Parties to a Whitefield lawsuit met in a confidential mediation session last week at the Camden law offices of Terry Calderwood. Serving as mediator, Calderwood said, “The purpose is to see if we can settle this case. This is an unusual mediation.”
At the dispute’s center are stalled rehabilitation plans for the historic Clary Mill property, which straddles Rt. 218 in North Whitefield.
Paul A. Kelley Jr., representing himself and Pleasant Pond Mill (PPM) LLC, filed a complaint in Lincoln County Superior Court against the town last Aug. 7 and asked for a jury trial under Maine Civil Court Procedure Rule 80b.
His complaint seeks judicial review of appeals board decisions upholding planning board denials of his company’s plans to develop the four-acre site, which is in the Clary Lake and outlet stream shoreland zone. PPM’s vision was to rehabilitate what had once been an economically viable property by combining commercial and residential uses.
Clary Mill was built just before the turn of the 20th century, manufacturing lumber and other wood products for a half century before portable sawmills eclipsed hydro-powered facilities.
Kelley has stated the planning board erred in its denials of his application, as did the appeals board when he and his company requested a variance in 2008; and he says that state imposed shoreland rules direct that a variance request made to an appeals board be forwarded to the commissioner of the Dept. of Environmental Protection.
In fact, much of the case hinges on whether the local ordinance or state ordinance, never adopted by the town, takes precedence.
Alleging violation of the Freedom of Access law, the plaintiff also takes issue with the town’s method of keeping (and not keeping) records, of not producing them when asked, of not giving proper notice of meetings, and of not keeping minutes or providing copies of ordinances, among other alleged failings concerning procedures and documents that are ultimately public records.
Kelley also asks that penalties be imposed. He asks that valuation increases on the property be rescinded and that previous values be restored. In addition, he asks that state guidelines and ordinances supplant local rules.
The planning board rejected PPM’s application in 2007 because it did not believe expanding the millhouse on the dam, as the company requested, was allowable given the local zoning law’s requirement of a 200-foot setback from the high water mark. Also denied was an application to develop up to six dwelling units in the mill, along with possible commercial space. The mill sits on 2.9 acres of land. The town’s minimum lot size ordinance requires at least 1.5 acres per dwelling unit.
From there, the matter passed to the appeals board.
While the 2005 Comprehensive Plan recognizes the value of Whitefield’s historic resources and calls for “greater flexibility” in ordinances governing land use, especially for properties having a unique character, nothing has been implemented.
A proposal that an article be included on the 2008 warrant seeking voter approval to create a “special use district” permitting Kelley’s plan never materialized.
On several occasions, town officials have said rezoning the property would require amending the shoreland zoning map, and steps in that direction have been taken. The Clary Mill property is currently zoned limited residential-recreational.
Farther south along Rt. 218, a portion of a helicopter business property is currently the only shoreland zone business designated limited commercial, and the planning board is considering extending that designation to several other sites in Whitefield as the board updates its shoreland zoning maps and ordinance.
Because of notification time frames and other requirements, the effort to bring a revised ordinance to voters cannot be accomplished before the June general election.
Kelley and business partner Richard Smith bought the mill property in 2003. Before that, in 1998, owner Chester Chase undertook to sell the lot under a land installment sales contract to his grandson Stephen Chase Smith, an attorney, who wished to use the millhouse as an office and residence.
Smith’s hopes to move the house off the dam to the adjoining lot were quashed when the planning board judged the lot to be essentially unbuildable, a position upheld by the appeals board. Both bodies concurred the applicant could not comply with setbacks or with minimum lot size requirements.
In 1999 the town was asked if it wished to purchase the millhouse parcel. For decades, Chet Chase had allowed public use of the lot to access Clary Lake for recreational purposes.
March town meeting voters balked at the $60,000 asking price, which had not previously been announced or included in the warrant article. They also resisted Smith’s offer of a $20,000 easement that would allow him to retain use of the building. They voted to raise zero dollars for the land, which was subsequently posted no trespassing.
On Sept. 3, Thompson & Bowie attorney Mark Franco responded to the plaintiff’s suit by denying the majority of the 56 allegations set forth and asked the complaint be dismissed with prejudice and without costs.
On Dec. 3 Franco filed motions asking the court to issue an order denying the request for a trial and to dismiss Kelley’s complaint because he failed to file in a timely manner. (The complaint wasn’t filed within the required 30 days of the appeal board notice of its action.)
One argument for dismissal addresses the plaintiff’s claim of denial of procedural due process. “All Defendants have done is enforce regulations that were in existence at the time of Plaintiff’s purchase of the subject property,” the document states.
The court then directed the matter go to mediation with a Feb. 10 deadline to complete the alternative dispute resolution (ADR).
On Jan. 8 the defendants filed a motion to postpone the mediation until the court ruled on their pending motion to dismiss the case. Also requested was an extension to April 10 to complete the ADR.
Franco wrote, “This case will be very difficult to resolve at mediation as money is not at the heart of this matter. The issues are more about land use codes and regulations which can only be changed by the Town Planning Board.”
The motion to postpone mediation was denied and Kelley, Franco, co-counsel Thomas Marzcak (also of Thompson & Bowie), Whitefield select board members Sue McKeen and Steve McCormick, planning board member Robert Bills, and appeals board member Pat Jennings met with the mediator on Jan. 13.
There was to be no discussion of money damages at that time. Results of that attempted resolution were forwarded to the court.
