LLC moves forward under federal, state law; opposition regroups; Select Board moves on

Camden lawyer sees ‘no clear legal prohibition’ of Fox Hill, opposition issues lists of questions

Posted:  Wednesday, March 5, 2014 - 3:30pm

CAMDEN — Camden Town Attorney Bill Kelly has issued an “advisory-type” opinion on the plan to convert the Fox Hill Estate to a residence where clients will be treated for alcohol and drug addictions, saying it appears to fall within state and federal statutes as cited by project proponents. Opponents, however, are questioning the legalities of the most recent announcement by Fox Hill Real Estate LLC to convert the 1903 Borden Cottage.

“I see no clear legal prohibition of the proposed use based on existing statutory law or local ordinance at this time, based on the facts as I understand them,” Kelly said, adding that his assumptions could change if new facts emerged. Kelly presented his analysis in a four-page letter to Town Manager Patricia Finnigan Feb. 28 . (See the attached PDF for the full letter.)

“It appears at this time that Fox Hill Real Estate, with its planned eight beds, will be residential in nature as opposed to an out-patient facility,” he wrote. “If it is licensed by the state for the proposed use by recovering substance abusers, who are deemed to be handicapped for the purposes of the Fair Housing Act, then it appears likely to me that it will qualify as a Community Living Arrangement, and therefore appears to fall within the protections of 30-A MRS 4357-A and the Fair Housing Act as an allowed residential (‘single family’) use.”

Kelly ended his letter to Finnigan by saying he anticipated his letter would lead to more questions.

“I have not attempted to address all possible legal issues, but merely provide an analysis of the application of Section 4357-A to the fact pattern as I understand it at this time,” he wrote.

Fox Hill project

Project proponents want to turn the 13.8-acre Fox Hill estate at 235 Bay View Street into a high-end residential alcohol and substance abuse treatment facility for up to 8 clients at a time, each paying approximately $60,000 for four to five weeks of treatment.

Owners of the estate, Fox Hill Real Estate LLC (24 investors, including Lincolnville summer resident Tom Rodman and Rockport summer resident Merril Halpern), are teaming up with the Belmont, Mass.-based McLean Hospital to establish the facility in the former Borden Cottage that sits on a hill overlooking Penobscot Bay.

Rodman has said the other 22 investors are family and friends. Investors who have been named include Bob Campbell, of Rockport; Betty and Scott Harris, of N.H.; George Rodman, of Maryland; and Joe Cooper, of Camden.

Philip Levendusky, associate professor of psychology at Harvard Medical School and senior vice president for business development and marketing, as well as director of the psychology department at McLean Hospital, is representing the nonprofit that would operate the facility.

McLean would lease the facility and operate as a nonprofit. Fox Hill Real Estate LLC would own the land and buildings, and continue to pay real estate taxes to Camden, which are currently approximately $100,000.

Camden’s Select Board visited the topic twice at its March 4 regularly scheduled meeting, both during the public comment portion of the meeting, as well as during a workshop session that followed the meeting. Board Chairman Martin Cates said March 5 that the board directed Finnigan to draft a letter to Fox Hill facility opponents Camden Citizens for Responsible Zoning, informing them that the town’s attorney had substantively and sufficiently addressed the legal ramifications in his Feb. 28 letter.

On Feb. 25, Fox Hill Real Estate LLC, a group of 24 investors that purchased the Fox Hill Estate last summer for $2.7 million, announced that it would withdraw its zoning amendment proposal that has been before the town of Camden for many months; and instead, the investors said they would reduce the number of beds from 12 to eight, eliminate the need for municipal approval (other than building permits) and create a community living facility at its Fox Hill property on Bay View Street.

By reducing the number of beds to eight, Fox Hill is now able to pursue its plan at the Maine State Department of Health and Human Services, in compliance with the federal Fair Housing Act and the state’s 1997 Maine Community Living statute, which was repealed and rewritten to conform to the Fair Housing Act.

“Prior to 1997, this statute only addressed the housing needs of mentally handicapped and developmentally disabled persons,” said attorney Cliff Goodall, representing Fox Hill Real Estate.

The law was restructured to broaden the definition of disabilities and handicap to include a physical or mental impairment that substantially limits one or more of a person’s major life activities. Alcohol and drug addictions are considered afflictions under the Americans with Disabilities Act and fall under impairment.

“If a facility ensures against use of controlled substances by its residents, then it would be entitled to the protections of the FHA,” wrote Kelly.

That turn of events, described by some supporters as “brilliant” and some opponents as an “end run” — eliminated the need for a zoning change. According to the project proponents, the change ”fulfills the requirements for a permitted, residential use for zoning purposes.”

The announcement followed the Select Board’s Feb. 4 vote, 3 to 2, not to place the proposed zoning ordinance amendment before voters on a town ballot.

Two Fox Hill principals, Tom Rodman and Merril Halpern, along with partner Philip Levendusky, who represents McLean Hospital, the nonprofit that would operate the residential treatment facility, agreed they “never expected it [the zoning amendment proposal] would rise to the level of contention that it has,” said Rodman, during the Feb. 25 press conference they had convened to make known their change of plans.

Under the new plan, McLean will pursue a license with DHHS for a substance abuse treatment programs. (See attached PDF for the full procedure.) A DHHS employee said March 4 that a McLean application had yet to appear in Augusta.

More specifically, McLean hopes to license as an extended care residential rehabilitation program, which, under state rules, include programs that provide services in a full (24 hours) residential setting. The program is to provide a scheduled treatment regimen, which consists of diagnostic, educational and counseling services; and shall refer clients to support services as needed, McLean said. Clients are routinely discharged to various levels of follow-up services.

There are no other community living arrangements in Camden that are permitted under the Fair Housing Act and the state’s Community Living Arrangement law; however, in Rockland, the Virginia House on Mechanic Street received state approval last year from Maine DHHS under the federal statute. The Virginia House, on Masonic Street, is a residential sober living home for women only. The Virginia House pursued a license with the state as a group home, not as a place to participate in substance abuse treatment programs.

“The Virginia House facilitates reentry into the world and reinforcement of sobriety,” said Rob Patterson, who owns the group home with Carolyn Ahlstrand. They live there and run the Virginia House, along with the help of a fulltime manager.

Fox Hill Real Estate LLC is adamant that its program entailing the use of eight beds or fewer is a residential facility, not a medical care facility.

The revised statute broadened applicability to benefit all “handicap” persons as defined under federal law. That includes “individuals recovering from drug or alcohol addiction so long as they are not currently engaged in alcohol or drug use,” Goodall wrote in a Feb. 7 memo to the Fox Hill investors. (See attached PDF)

Under the lexicon of state and federal law, Fox Hill Real Estate LLC and McLean maintain that the Fox Hill residential treatment facility can operate with treatment programs.

State law, under the Community Living Arrangement, protects state licensed substance abuse treatment programs, as well as intermediate treatment facilities, “all of which require staff in order to provide the necessary treatment programs that are focused on helping the clients to over come their disabilities,” Fox Hill Real Estate said. “These are residential treatment facilities; therefore, staffing to provide treatment is an inherent part of the program in these facilities.”

Opponents question the town

Fox Hill opponents are characterizing that announcement as a “desperate attempt to make an end run around having to follow any rules and get what they want anyway,” according to a Feb. 28 email to members of the Camden Citizens for Responsible Zoning, a loose confederation of Camden residents opposed to the facility, by their spokesman, Stephanie Clifford. Clifford works with Baldacci Communications, the Portland-based public relations firm that represented the Citizens in their campaign against Fox Hill Real Estate LLC as the zoning proposal wound through the municipal process.

Baldacci Communications and the Citizens said that if Camden accepted Fox Hill’s new assertions, it would set a precedent that anybody who wants to run a drug or alcohol rehab center “can put their commercial enterprise in any neighborhood as long as they call it a community living arrangement and claim to have eight renters or less.”

Ordinances and Home Rule

Courtesy of Maine Municipal Association

“It's the right of a town or city to enact laws that are municipal in nature and that do not frustrate or run counter to a state law and/or which the state has not prohibited it from passing.

“The concept of home rule is very important to local government because without home rule authority, cities and towns would depend for their governing authority on specific acts of the State Legislature.

“Maine has been considered a strong "home rule" state since November 1969, when an amendment to the state constitution delegated broad "home rule" ordinance powers to cities and towns.

“Such ordinances range from ones controlling the barking of dogs, to the regulation of adult businesses, to the regulation of signs, to the control of a town's growth, to the review of real estate development projects, to the banning of herbicide spraying, to the regulation of local timber harvesting”

The Camden Citizens for Responsible Zoning also sent a Feb. 28 memo to the town of Camden. That memo (see attached PDF) was signed by Dana Strout, Dorie Klein, Dennis McGuirk, Judy McGuirk, Dave Hague, Faith Hague, Parker Laite, Amy Smereck, Win Padgett, Nancy Padgett, Wynne Phelan, John Phelan and Phil Fowler.

The memo said: “The new tactic by Fox Hill to create a ‘community living arrangement’ may obviate the need for a zoning amendment in their minds, but it does not allay other real concerns that were raised during the public process. Traffic will continue to be an issue with 22-25 employees. There will still be a substantial change of use to a commercially run establishment impacting the social fabric of the neighborhood.”

The Citizens said every neighborhood in Camden could potentially become home to an eight-bed residential treatment facility with unlimited numbers of employees. The Citizens asked the town: “Are there any Maine or federal statutes that prohibit a municipality from applying performance standards to community living arrangements; standards similar to those that apply to any other single family residential uses such as home occupations or low impact uses? These restrictions are reasonable for the protection of the residential quality of any neighborhood. They include such restrictions as limits on truck traffic, parking and number of employees. Since they apply to all single-family residences how could they be classified as discriminatory?”

At the March 4 Select Board meeting, Fox Hill abutter David Hague told the board that the announcement by Fox Hill Real Estate LLC and McLean “really stretched the Americans with Disabilities Act.... If this goes unchallenged it essentially means any house anywhere in Maine can be a for-pay rehab center.”

He said Camden has to worry about being a target for that, and that the town could be overrun by rehab centers.

“I don’t think it was the intention of the law,” he said, and advised that the town probably needed a second opinion.

“It’s a big issue that won’t go away,” said Hague.

Board member Don White referenced Kelly’s Feb. 28 letter and the point that “we have been preempted by federal and state government.”

He thanked Hague for his comments and said that the town’s own legal interpretation, “does not prevent you to get private counsel to move forward.”

Board member John French said, “It seems the zoning issue has gone away.... At this time, it's time to move forward and welcome McLean. My biggest issue was the zoning issue.”

Board member Leonard Lookner said that while he tended to agree with French, he encouraged the “community and planning board to find ways so that this doesn't become endemic in our communities. I think that they [Fox Hill Real Estate and McLean] used a definition for one thing to fit to them. I would like to tighten up the definition.”

Federal, state laws trump local ordinances

Besides the questions submitted by the Camden Citizens for Responsible Zoning, resident Dorie Klein submitted her own questions to the town’s code enforcement office Feb. 28.

“Anything in my field of purview I am answering immediately,” said Camden Code Enforcement Officer and Planner Steve Wilson, on March 4. The others that are more legal in nature he was referencing to Kelly, he said.

One common question that opponents have concerns fundamental U.S. legislation and its weave of federal, state and local laws.

“Is it true that federal and state laws can trump our local laws and Comprehensive Plan, that was approved by the State of Maine?” asked Klein.

Yes, said Wilson, in a March 4 phone conversation with Penobscot Bay Pilot.

Municipalities are granted the right to establish their own laws under home rule, but those ordinances cannot be stricter than those of the state. Federal law supersedes; e.g., the current state and federal confusion and clashes over marijuana laws, or cell tower sitings, under the Telecommunications Act of 1996.

McLean and Fox Hill Real Estate LLC also responded to that question, saying: “The Federal Fair Housing Act and the American With Disabilities Act in conjunction with the State Community Living Arrangement statute totally preempt any municipal zoning in Maine making community living facilities with eight or fewer clients an automatic permitted use anywhere in a Maine town where single family homes are permitted. To prohibit them in any such zone is discrimination under the terms of these laws.”

Klein asked the town who would enforce the eight-bed limit at Fox Hill, and if every community living facility in Camden has eight-bed protections under the FHA and Americans with Disabilities Act.

Wilson responded to Klein, saying: “As far as the enforcing the number of beds, that will be enforced the same way as any local home, hotel, inn, etc.. The septic design, permits, inspections, and use typically set the number of allowed bedrooms.

“In this particular case the permit and plans will set the number of rooms available and I presume the state license will also require the same. Typically the State Fire Marshal’s construction permit and barrier-free permits may reflect similar information. As far as monitoring the use, if there was a complaint that warrants investigation then I am sure myself and the town will be able to investigate any issue and resolve it within the rules of zoning, the laws, rules and regulations of the state of Maine. Furthermore, if there is injury and loss with respect to abutting properties, I presume they are aware of civil recourse available.”

Rodman said that Fox Hill will apply for a building permit with Camden for the construction of a bedroom and bathroom on the ground floor to comply with the Americans with Disabilities Act. Fox Hill Real Estate will also determine what additional safety features it will need following fire marshal office review, which may include installing a sprinkler system. Rodman also said Fox Hill Real Estate LLC will regrade the bottom of the estate’s driveway where it intersects Bay View Street per the request of the Camden Fire Chief, in order to facilitate more efficient fire truck traffic, if necessary.

Rodman also said Fox Hill plans to demolish a portion of the existing garage that is in poor structural shape.

Klein also asked Wilson why McLean would still plan to employ 20 to 25 employees for a reduced number of residents, and whether their treatment would be administered via Skype.

Penobscot Bay Pilot asked McLean to respond to that question, and the hospital replied via email: ”Staffing is essentially the same because it was designed to treat on average a range of six to 12 patients. Now, with a maximum capacity of eight we are predicting the highest monthly average occupancy will be around seven. McLean Hospital does not administer clinical care via Skype or any other online applications. All treatment is conducted in-person, by a team of mental health clinicians who work together, with patients and their families, to provide excellent, compassionate and effective care.

Klein also said in her list of question that: “McLean originally proposed to (weed-out) tenants with known drug/alcohol arrest records or histories of being drug dealers, and those (lower income people) who could not afford the $50,000 to$60,000 per month treatment. Would the FHA and Disabilities Acts forbid discrimination against these patients with arrest records and limited funds to pay?”

McLean replied: “The prohibited discrimination is against disabilities. Arrest records and ability to pay do not create protected disability status under FHA or ADA.”

Camden Citizens for Responsible Zoning plans to continue to exist at the moment, said Deb Dodge, a member of the the Citizens.

“We don’t know what our next steps are going to be,” she said. “We are trying to figure that out. A lot of us have common concerns. Once I hear from the town, I will go back to the Citizens and we will determine what we do next. That may entail seeking counsel to get answers to our questions that the town has not been able to answer.”

Dodge said she has also submitted questions to DHHS about what the licensing requirements are specific to Fox Hill and McLean.

Related stories:

Camden Select Board votes against putting Fox Hill zoning amendment before voters

Two Fox Hill neighbors say Camden's Bay View Street not appropriate for alcohol treatment center

Renewed effort to make Camden’s Fox Hill estate an alcohol and substance abuse rehab center begins

Camden’s Fox Hill changes hands, its future under consideration

McLean Hospital looks to Camden's Fox Hill for alcohol, drug rehab center

 Camden's Fox Hill rehab deal nixed by landowner, buyer mystified

No more phone polling of Camden residents about Fox Hill

Camden Planning Board walks Fox Hill estate; citizens, lawyers tag along

Fox Hill rehab center and the Camden Comprehensive Plan: In compliance or not?

Fox Hill back under spotlight Oct. 17, Camden Opera House

Camden wraps up Fox Hill public hearings tonight

Camden Planning Board listens to more Fox Hill testimony; tables deliberations until Jan. 2

Camden Planning Board agrees town citizenry should vote on Fox Hill amendment language

Camden Select Board considers Fox Hill zoning amendment at public hearing Feb. 4

Camden Select Board votes against putting Fox Hill zoning amendment before voters

Paperwork filed with Camden town office, but no Fox Hill petition currently circulating

Fox Hill takes new tack, establishes Camden community living facility for alcohol, drug rehab

Editorial Director Lynda Clancy can be reached at; 706-6657.