Property owners file in U.S. District Court

Thu, 03/27/2014 - 11:30pm

Lynda Clancy

The 13.9 acre Fox Hill Estate, built in 1903 as the Borden Cottage, has an illustrious history, and remains in the news as it now becomes the subject of a law suit filed in U.S. District Court. The property sits on a small rise above Bay View Street with views over Penobscot Bay. (Photo by Lynda Clancy)

Fox Hill cottage was built in 1903.

CAMDEN — A group of Bay View Street neighbors hired a New York City attorney, as well as a Rockport attorney, and filed a complaint in U.S. District Court against Fox Hill Real Estate Company and McLean Hospital Corporation, asking a judge to prohibit the use of Fox Hill for treatment of clients with drug and alcohol addictions. The case was filed Thursday, March 27, in Portland.

The complaint (see attached PDF for full document) asks for injunctive relief, saying: “the proposed Bay View property facility does not constitute a ‘community living arrangement’ for persons suffering a ‘handicap’ and ‘disability’ under the governing laws.”

The suit said such improper use of the Bay View Street property would adversely affect property owned by the plaintiffs by, “inter alia [among other things], causing substantial additional traffic and noise on a residential street, posing a serious safety issue due to the narrowness of Bay View Street and its sharp turns, and negatively impact the market value of the neighboring homes by inserting a commercial facility into a residential neighborhood.”

Tom Rodman, one of 24 investors behind the initiative to convert the 13.8-acre estate into a facility identified under state regulations as a community living arrangement, said March 27 of the complaint: “Having just been made aware of this, we’ve not had time and opportunity to review it with our attorneys.”

Attorneys for the plaintiffs are David Burger, of the New York City-based Robinson Brog Leinwand Greene Genovese and Gluck P.C., and Dana Strout, whose office is in Rockport.

A phone call to Burger has yet to be returned; Strout declined to comment on the case, referring questions to Burger.

The plaintiffs are Undercliff Cottage LLC, Phelan 2006 Family Trust, Julie and Charles Cawley, Parker S. Laite, Sr., and Friends of Camden Maine LLC.

Undercliff Cottage, owned by Undercliff Cottage LLC is at 221 Bay View Street, on property abutting Fox Hill. It is owned by Madlyn and Leonard Abramson, summer residents of Camden, who own additional property at 230 Bay View Street across the street from Fox Hill. The Abramsons have been opposed to the Fox Hill proposal since last summer, when it first appeared before the Camden Planning Board. At that point, they had secured legal representation from Camden-based attorney Jack Sanford and Rendle Jones, as well as the Portland-based Pierce Atwood, with Matt Manahan speaking for them at public meetings.

Phelan 2006 Family Trust owns property at 174 Bay View Street, and prior to the trust’s acquisition in in 2008, was owned by Wynne Phelan, according to municipal tax documents.

Julie and Charles Cawley also own property on Bay View Street, across the street from Fox Hill. They are the former owners of Fox Hill Estate, and sold that property to Ellen and Matt Simmons.

Parker Laite, Sr., owns property in Camden.

Friends of Camden Maine LLC “is going to be a community organization,” wrote an unidentified person, answering questions addressed to the email account friendsofcamdenmaine@gmail.com. “It was set up in case any other Camden residents want to contribute to the litigation. We may have other supporters. So far, it is only the named plaintiffs, and that is all there may ever be. The other plaintiffs are all property owners in Camden.”

The email account circulated notice of the complaint this morning, March 27, via email in a one-paragraph announcement: “MARCH, 27, 2014, CAMDEN, ME: A group of Camden homeowners who are neighbors of Fox Hill filed a declaratory judgment action against FHRE, LLC and McLean Hospital in Federal Court this morning. The group is asking the Federal Court to determine that McLean's proposed commercial rehabilitation operation at Fox Hill is not subject to FHA protection for purposes of Maine’s ‘community living arrangement’ law.”

“We are filing the action because the Fair Housing Act does not support the establishment of a commercial hospital exclusively for rich people in a residential neighborhood, simply because those rich people happen to be alcoholics,” the Friendsofcamdenmaine@gmail.com correspondent said. “We are asking the court to make that determination and end this charade.”

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.

The Friends of Camden Maine LLC are not to be confused with Camden Citizens for Responsible Zoning, a coalition of residents who opposed the Fox Hill zoning amendment proposal as it proceeded through a municipal process.

Deborah Dodge, who has been spokesman for the Citizens, said March 27 that the suit “is not a Citizens for Responsible Zoning legal action.” She said: “we are still intent on following up on what Fox Hill is doing. We are still pursuing ways of remaining opposed to it.”

In early March, Camden Town Attorney Bill Kelly 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, continued to question 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.

The March 27 suit filed in U.S. District Court said the provisions of the Fair Housing Act and Maine’s subsequent revisions “were instituted to prevent discrimination against under-privileged persons utilizing small group living arrangements to rejoin society.”

The provisions, the suit said, “were not instituted to provide extremely wealthy persons with a one-month resort in a private residential area to recover from over-drinking.”

McLean Hospital Corporation, according to the suit, is based in Belmont, Mass., headed by a board of directors that includes Philip Levendusky, who has represented the hospital during the Fox Hill proposal hearings. The suit includes all the directors in its complaint.

The suit said: “Defendant Fox Hill was formed by a group of 22 investors.... Upon information and belief, McLean and/or more than one of the McLean defendants are investors in Fox Hill.”

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.

As of March 27, McLean had yet to submit for licensing approval with the state, Rodman said.

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