‘Plaintiff’s proposed carve-out fails’

Fox Hill to litigants: federal law protects all recovering alcoholics

Wed, 05/28/2014 - 10:00am

    PORTLAND — Calling the premise of a lawsuit a “bizarre assertion,” the lawyer for Fox Hill LLC, a group that wants to establish an eight-bed residential treatment facility on a Camden estate, is fighting back in federal court for his clients against neighbors seeking to shut down the enterprise before it gets off the ground. In a scathing response filed May 23, Attorney Timothy Shannon said: “the neighbor’s vague, baseless and ironic misuse” of the federal Fair Housing Act should be rejected, and asked the court to dismiss the case.

    At the end of March, a group of Bay View Street neighbors filed their complaint in U.S. District Court against Fox Hill Real Estate Company and McLean Hospital Corporation, asking U.S. District Court to prohibit the use of Fox Hill for treatment of clients with drug and alcohol addictions.

    The group, comprising Undercliff Cottage LLC, Phelan 2006 Family Trust, Julie and Charles Cawley, Parker S. Laite, Sr., and Friends of Camden Maine LLC, said then that “the proposed Bay View property facility does not constitute a ‘community living arrangement’ for persons suffering a ‘handicap’ and ‘disability’ under the governing laws.”

    They 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.”

    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.

    On May 23, Fox Hill responded, saying the case has serious procedural defects, including its request for judicial review of Camden’s municipal decision.

    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.

    “Municipal enforcement (declination) decisions are not subject to judicial review,” wrote Shannon, who is with the Portland firm Verrill Dana. The town, he said, has wide discretion in making enforcement decisions. “The town’s decision not to enforce its own zoning rules as the plaintiff’s would like – even assuming arguendo the town could do so legally — is not reviewable,” he wrote.

    Town ordinance does say that if there is a violation of an ordinance the town may bring action in Maine Superior Court to enforce the ordinance. The town are authorized but not required to institute action to enforce ordinances, but he wrote, “this court may not revisit the town’s refusal to enforce,”

    Shannon is representing the 24 investors of Fox Hill LLC. He said in his May 23 response that the group filing suit against Fox Hill lacks standing to bring a suit to enforce a local ordinance.

    At the end of February, and after months of municipal review, Fox Hill project proponents withdrew a zoning amendment proposal that had been debated before the town and said instead that they would establish an eight-bed community living facility at its Fox Hill property on Bay View Street. By reducing the number of beds from 12 to eight, the proposal eliminated the need for a zoning change.

    “The elimination of zoning issues and threats of possible lawsuits will allow us to put our past differences aside and work together for the public good,” said Tom Rodman of Fox Hill Real Estate, on Feb. 25.

    Fox Hill Real Estate investors and attorneys made the announcement around a big table in the Borden cottage, the main building on the Fox Hill estate on outer Bay View Street. Investors Rodman and Merril Halpern, of Rockport, were joined by attorneys Clifford Goodall and Paul Gibbons, and Philip Levendusky, director of psychology and psychology training at McLean Hospital in Belmont, Mass., the entity that plans to lease the property and run its treatment facility.

    Fox Hill Real Estate, in conjunction with McLean Hospital, had spent eight months in a municipal process attempting to convince Camden to put before voters a zoning amendment change that, if approved, would allow the two entities to pursue a special exception for siting an alcohol rehabilitation center at Fox Hill. The process involved 11 lengthy and well-attended public meetings.

    Fox Hill invoked the federal Fair Housing Act and the state’s 1997 Maine Community Living statute, which had been repealed and rewritten to conform to the Fair Housing Act. In doing so, Fox Hill asserted it needed no zone change, and only requisite building permits from the town to continue making renovations to the Borden Cottage.

    McLean Hospital, however, does need license approval from the Maine Department of Health and Human Services, the application for which has been filed in Augusta. 

    According to DHHS, the application for an alcohol and drug treatment program for Fox Hill was submitted May 14. The application has yet to be made public by that state agency.

    Upon filing their suit against Fox Hill in March, the Friends of Camden Maine LLC sent an email saying: “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.”

    Shannon said in his response: “Without a trace of embarrassment, they [the plaintiffs] have sought to stop the project by invoking the federal Fair Housing Act, a statute intended to prevent precisely the sort of discrimination they are now advocating.”

    They are, said Shannon, asking the court to decare that certain disabled people — “wealthy” ones — are not protected by the law — “and that the neighbors and/or the Town of Camden may therefore discriminate against them or deny them the opportunity to run a residential treatment facility.”

    Shannon called it a “carve out” and said there is: “no support for this bizarre assertion. The FHA was designed to prevent discrimination against all disabled persons (including persons suffering from alcoholism, as every other Circuit has found), regardless of how rich or poor they are.”

    He said there is nothing in legislative history nor in any cases that exempt “wealthy” people from FHA protection.

    Shannon said the group bringing suit against his clients refers to “extremely wealthy persons” finding treatment at Fox Hill.

    “Would the court’s order therefore address and preclude the facility only to the extent it houses ‘extremely wealthy persons’? At what point would patients qualify as ‘extremely wealthy?’ Elsewhere the plaintiff’s define the facility in terms of the $60,000 service fee. Would the court’s order preclude the facility if it charged only $55,000? Elsewhere the plaintiffs say the FHA is limited to ‘under-privileged persons’? Are they asking for an order limiting the facility to ‘under-privileged persons’? Elsewhere the plaintiffs define the facility in terms of it serving patients that are ‘well’educated’, from ‘intact families’, and not from Maine.

    “Are those the objectionable features? If so, it is unclear whether the court’s order would apply to patients who are poor (which is good), but from Massachusetts (which is bad); or patients who are Mainers (good) but educated (bad); or patients who are underprivileged (good) but from intact families (bad)

    “The plaintiff’s rambling description of the ‘proposed Bay View property facility’ suggests that what they really don’t want — behind all the talk of wealth — is recovering alcoholics or drug addicts of any kind in their neighborhood. That, of course, is precisely the kind of prejudice that the FHA prohibits.”

    Shannon is asking the court to dismiss the case.


    Related stories:

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

    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 lyndaclancy@penbaypilot.com; 706-6657.