The Town of Whitefield faced more legal wrangling this week as developer Paul A. Kelley Jr. filed two motions in Lincoln County Superior Court. The town’s legal representatives answered Tuesday with a request to dismiss.
Among Kelley’s charges are that town officials and employees dragged their feet producing records he asked for.
Kelley, of Camden, as an individual and a member of Pleasant Pond Mill LLC sued the town and its board of appeals last August after decisions denying his proposed changes at the historic Clary Mill Complex in North Whitefield were upheld.
The planning board ruled that setback requirements and the minimum lot size ordinance constrain activity of the magnitude Kelley envisioned on the approximately four-acre, shoreland property, and the appeals board subsequently upheld those decisions.
Court Justice Andrew Horton ordered the complaint be dismissed Jan. 26, mostly on grounds it was not filed in a timely fashion.
Given until Feb. 16 to reply, Kelley, who is representing himself, now asks Horton to reconsider his judgment and to allow the plaintiff to amend his original complaint.
Kelley contends the town prevented him from acting in timely fashion because officials and staff did not supply him the documents he requested to bolster his case.
He also says a board of appeals letter dated June 22, 2009, setting forth why that body upheld the planning board decision does not refer to a variance and no record reflecting the appeals board’s discussion of variance was ever produced.
“The letter did not address all issues still pending before (the board),” Kelley states.
On Feb. 3, a week after his complaint was dismissed, he again went to the town office and made a detailed written Freedom of Access request. Still, not all documents were provided, he said.
He asks the court to reconsider because he now has enough documents “essential to the proper pleading of the original complaint” in his possession. Kelley also states the court’s Jan. 26 judgment was “based in part on a findings of a ‘denial of …variances,'” yet that variance record has yet to be unearthed.
Additionally, Kelley states there was “a mutual understanding” between himself and the defendants that there would be no court suit “until all issues had been properly addressed,” notably those before the appeals board.
Representing the town, Tom Marczak, of Thompson and Bowie law firm in Portland, said Tuesday the motion to amend after the court decision “is improper.” Traditionally, such an amendment is done when there’s been an argument in open court (not the case with this suit) and something occurs that changes the nature of the complaint. The party is then allowed to amend his pleadings.
To the mutual understanding argument, Marczak and Thompson and Bowie’s Mark Franco, who is also representing the town, write in their opposition that Kelley “has not supplied and can not supply any evidence of such a contract or consideration…. Furthermore, Defendants are at a loss to understand how a contract, which Plaintiff alleges should have prevented him from filing (a complaint), was somehow breached by the Defendants when the Plaintiff did in fact file” that complaint.
As to Kelley’s contention that the appeals board “failed to act” on a variance request, Marczak and Marco say Kelley didn’t supply the defendants or the court “with any evidence which could support the issuance of a variance.”
Several factors, according to statute, must be present, including “undue hardship” and assurance that the essential character of the property won’t be altered. Undue hardship cannot be the result of action taken by the applicant or a previous owner. The defendants claim the plaintiff never provided any evidence that the appeals board would need to issue a variance.
As for the appeals board letter explaining its decision, the town attorneys in effect say Kelley can’t have it both ways. His new motion alleges that the letter was not a final action yet Kelley used that same letter – signifying the end of his “attempts to gain local approval” – as the catapult for going to court.
