Developer Paul A. Kelley, Jr., personally and as a member of Pleasant Pond Mill Limited Liability Company (PPM LLC), has begun a lawsuit against the Town of Whitefield. The suit seeks a declaratory judgment in Lincoln County Superior Court that local actions against company proposals be overturned.
At issue are PPM’s stalemated efforts to rehabilitate its historic Clary Mill property at Clary Lake outlet on Rt. 218.
Kelley said this week that his company in the last three years has “worked within the Whitefield planning process to find any way to save (the property).”
The 13-page complaint states that the planning board rejected various PPM proposals “without sufficiently clear findings of fact and/or conclusion of law.” It also alleges irregularities in the appeals board process, unfair treatment, and questions whether records of that panel’s findings reflect the weight assigned to some member opinions that the company’s hardship was self-created.
It also faults town officers and employees for failing to supply and maintain public records, and not providing public notices of proceedings.
The suit asks the court to “declare that current practices in the Town for records and proceedings are confusing, contradictory, vague, arbitrary, …and are so fundamentally unfair as to present substantial and procedural due process violations…”
At the center of the dispute are the century-old mill and a small house that sits atop the dam on grandfathered lots dating to approximately 1900. Kelley and business partner Richard Smith, both of Camden, purchased the mill and land it stands on in 2003 and subsequently acquired the millhouse on the dam.
Reinforced by the mill’s being named to the National Register of Historic Places in 2005, they hoped to convert and expand the site for residential and possibly commercial use, preserving its historical and environmental importance and character in the process.
Such an undertaking would perpetuate the “significant public benefits” to the town, neighboring communities and the general public, the suit states.
Complications
From the outset, the location of the parcels in a shoreland district hamstrung the partners’ plans. The town’s 1974 ordinance regulates land use within 300 feet of the high water mark and requires a 200 foot setback for structures in the limited residential recreational zone, a condition that can’t be strictly met at the Clary Mill complex.
Additionally, because the entire site is about four acres, the local minimum size lot ordinance, requiring 1.5 acres per dwelling, poses a problem for increasing residential density.
In 2007 Kelley and Smith sought to move the millhouse off the dam, farther away from Clary Stream, and add on to the building. While the removal would lessen the nonconforming nature of the lot, the planning board denied the request primarily because town rules say new construction in the shoreland area must be at least 200 ft. from the water.
The appeals board earlier this summer upheld the planning board decision. This denial was the catalyst for the suit. “The ordinances say that the only step after the appeal board is to go to court in Wiscasset,” said Kelley.
A major complication is that state Dept. of Environmental Protection (DEP) shoreland guidelines, updated in 1992-94, were not adopted by Whitefield, nor was the town’s stricter ordinance rescinded. The less stringent state guidelines require that the shoreland setback for all construction be at least 100 feet.
In June the Whitefield Planning Board sought advice from Maine Municipal Association (MMA) and DEP, receiving conflicting opinions on whether the town’s 1974 rules are invalid. “Until a court rules on the matter, there is no clear answer,” wrote MMA staff attorney Kristin M. Collins.
In his complaint Kelley asks that the local ordinance be declared “void and/or incapable of being reasonably applied in conjunction with the state ordinance.” To apply both “creates an impermissible ‘hybrid’,” he writes.
The complaint argues that PPM can, with permitting, rehabilitate the site so that it can withstand the increased density of use “through modern building technology and an appropriate planning process.”
On Tuesday, Kelley said, “After all the years of meetings with no solution, it is clear that everyone needs to find out which laws apply and what next step needs to happen in order for the whole property to be saved.” The complaint doesn’t demand money, he said, but, among other requests, asks for “clarification” about state and local laws.
The town has 20 days to respond in writing to the suit.
