Meeting tonight: focus on amendment language

Fox Hill rehab center and Camden’s Comprehensive Plan: In conformance or not?

Wed, 11/20/2013 - 8:00am

    CAMDEN — Armed with statute books and ordinances, attorneys representing proponents and opponents of the Fox Hill alcohol and drug rehabilitation facility have spent hours over the last several months trying to convince the Camden Planning Board of their respective positions. Before the public and in letters, they have dismantled the arguments of each other, traded occasional barbs, and alluded to possible lawsuits. The public has also weighed in — neighbors, business owners and therapists — and this evening, everyone will have the chance to speak again at the first official public hearing on proposed ordinance language amendments, which begins at 5 p.m. at the Camden Opera House. As long as they stay on topic, the focus of which is the proposed amendment to the town’s land use ordinance.

    And don’t expect a decision on the matter from the Camden Planning Board, even though its members are waiting for their own chance to discuss the proposal.

    At the end of a four-hour marathon informational meeting Oct. 17, Planning Board members sat back in their chairs that were lined up on the stage at the Camden Opera House, and agreed they really wanted to talk amongst themselves about a proposed zoning amendment — to “bounce ideas,” as one member said.

    That won’t happen until December, however. The board will have no discussion among themselves until its members hear all the input from the public, said Camden Planner and Code Enforcement Officer Stephen Wilson. They can ask questions, as its members have been doing ever since the project was introduced to the town, but any board deliberations on it won’t take place until the second of two scheduled public hearings, scheduled for Dec. 12.

    “They won’t be discussing merits of this until the second meeting,” said Wilson.

    Watch the Oct. 17 informational meeting.

    The notice of the hearings says to keep comments specific to the zoning amendment: “The sole purpose of these public hearings is to review the final proposed ordinance amendment language and for the Coastal Residential Zone and receive public comment. The comments and concerns are to be relevant to the language as it applies to the zoning ordinance and the comprehensive plan. Testimony, information, and opinion regarding specific possible applicants is not relevant as no formal application for a use or project is before the Board at this time.

    “Attorneys and the public are asked to keep comment focused on general language and Comprehensive Plan issues and not on any specific proposal. All will each be given appropriate time to explain their position regarding the proposal as it applies to the Comprehensive Plan and to address other issues related to the language of the proposal and zoning issues only, not to specific permitting or other issues. Attorneys will be given a will be given an opportunity to reply to the other’s comments as long as there is no repeating of arguments, no filibustering, and no back and forth discussion.

    ”Previous testimony was heard and allowed as an educational example of a possible future use but the amendment must be reviewed on its own merits independent of a specific proposal. This will be an opportunity for the public to learn more, and to have the opportunity to ask questions and comment on a broader scope.”

    The Fox Hill proposal has emerged as Camden’s high profile debate this year. Multiple attorneys have been hired to argue for or against the proposal to amend town ordinance with language that would allow for such a rehab center on outer Bay View Street in Camden, in an area that lies in the town’s Coastal Residential zone. Much money has also been spent on marketing, public relations and advertising either supporting or opposing it.

    The town, meanwhile, is carefully focused on its own due diligence as the planning board gets closer to voting whether or not to recommend that the amendment be sent onto the Camden Select Board, the body that will decide if the citizens will have a chance to vote the amendment up or down. 

    Wilson has set up a public dropbox where all the letters, memos, legal documents and opinions are collected and available for review.

    Read the proposed amendment here with its most recent language changes, Oct. 30.


    Planning Board ready to discuss

    “At some point, without intrusion of attorneys and public, we as a board should have one more step, a dialog among ourselves,” said Planning Board member John Scholz, at the Oct. 17 meeting. 

    The economic projections

    Fox Hill Real Estate commissioned an Economic Impact Report from Planning Decisions, Inc., of Portland. The consulting company’s Chief Economist, Charles Lawton, spoke to the Camden Planning Board at its Oct. 17 meeting, justifying why he concluded the economic and fiscal impact of a proposed alcohol rehabilitation facility in Camden made sense.

    He said:

    The direct effect of the facility, its start-up capital investment and operational business would add $5 million to the local economy, with an anticipated creation of 46 jobs (construction, etc.).

    Labor income, the majority of which would be injected locally, would be $2.3 million.

    The facility would provide Pen Bay Medical Center with another $100,000 for support services.

    The ongoing annual economic effect would be $3.5 million, with 29 stable jobs. Those jobs would include those associated with vendors and contractors; e.g., snow plowing, fuel oil supply, and other spin-off employment.

    There is also the induced effect, e.g., lunch purchases at local shops, groceries, rent.

    “That trickles down through the economy and has an additional effect,” he said. This business enterprise has components that create an economic impact on the community, he said.

    “Why is it important,” he asked the board. “The purpose of a planning board is to look not just at the past, or today, but where Camden is headed.”

    He mentioned jobs, the town’s seasonal economy, and its tax-based problems.

    Looking to the future, the most dramatic change is that the population of 65 and older will increase, he said, with fewer people of a working age.

    “So that the number of people to be educated in school system is likely to decline,” he said. “That is a demographic forecast. How is the town going to address that?”

    Camden is intimately connected through surrounding region, he said. Three-quarters of the Camden’s population who have jobs work elsewhere.

    Three-quarters of people employed in Camden come from out of town.

    “It is a regional economy that is going to determine the prosperity or lack thereof in the future,” he said. Camden jobs have been declining in number and their pay has been dropping relative to state average, he said.

    “What are your confidence levels that these numbers shall be achieved,” asked Planning Board Chairman Lowrie Sargent, at the meeting.

    Lawton responded that: “it largely depends on the location of vendors and employees. If someone lives in Rockland or in Augusta, impact will be less. I am confident to the extent that this reflects the Knox County. I am relatively confident that total amount of spending is going to produce a multiplier of 1.2. The variant is where the people are going to be living.”

    The opponents of the facility had submitted their own rebuttal to the Planning Decision study.

    They recruited Todd Gabe, from the University of Maine, to review the study.

    He wrote in an Oct. 7 statement paper that: In addition to saying the Planning Decision study took a nonstandard approach in its analysis, the multiplier effects on the Camden economy would be smaller.

    “Contrary to the grim economic picture portrayed by the report, the Camden area is performing quite well, according to some important regional economic indicators. The actual impact of the proposed... facility on local jobs would be lower than what is projected in the report because the (temporary) construction activities would end after the renovations are completed, and the facility (and its suppliers and workers) would make fewer local purchases than what is assumed in the report.”

    He also pointed out that the net fiscal impact could be reduced further if more municipal services were required, and if the facility would decrease the value of other residential properties.

    At the Oct. 17 meeting, Attorney Matt Manahan said the economic study produced by Planning Decisions pointed out that the substance abuse facility would be a commercial use.

    “We shouldn’t be talking about economic impact,” he said. “Commercial use doesn’t belong in residential neighborhood.”

    Camden resident David Hague, also at the Oct. 17 meeting, questioned the time frame used in the Planning Decisions study, suggesting a truer picture of Camden’s economy would be made if the reference points went back further than the years associated with the arrival of credit card bank MBNA. The late 1990s and early part of the new century saw an economic boom in town and the immediate region, but which did not last.

    “We had a bubble in Camden,” he said. “We had a weird decade.”


    That meeting was structured to allow delivery of an economic impact report by Charles Lawson, of the Portland-based Planning Decisions (see sidebar to the left), as well as 30-minute talks by lawyers, time for their rebuttals, and then comments and opinions of the public. 

    The meeting drew approximately 50 citizens, who scattered themselves around the Opera House, some of them taking turns to approach the podium and advocate for or against Fox Hill.

    By 9 p.m., the comments had been exhausted and the board was considering its next move. Members agreed that the meeting had been informative, with, according to Richard Householder, “a lot of information that needs to digested.”

    Scholz said: “We may have questions to ask each other and bounce off ideas. We have not had communication with each other.”

    “Juries get to do it,” added Planning Board member Richard Bernhard.

    “We are a little more transparent than they are,” said Acting Chairman Lowrie Sargent. “If we are doing our jobs properly, we should not have already decided if this is a good idea or not a good idea. I don’t disagree with your idea about have a conversation.”

    He said: “The issue at hand is whether it is an appropriate use, and in conformance with the comprehensive plan.”

    Lowrie is acting as chairman because official Planning Board Chairman Chris MacLean is attorney at the firm that represented Ellen Simmons, who sold Fox Hill to Fox Hill Real Estate LLC last May. (See sidebar to the right)

    Importance of the Camden Comprehensive Plan

    The Camden Comprehensive Plan, 2005 edition, establishes the collective vision of how the town wanted to see itself develop. It has become a touchstone for the debate over the Fox Hill proposal; most recently, on Nov. 13, attorney Clifford Goodall, who was hired by the project proponents, submitted a four-page memo to the Camden Planning Board arguing why the rehabilitation center would be in accordance with the comprehensive plan.

    The comp plan relevance was stressed at the Oct. 17 meeting, where both Matt Manahan, a Portland-based Pierce Atwood attorney who represents Fox Hill neighbors Leonard and Madelyn Abremson in opposing the project, and Goodall each invoked its importance.

    While he had preceded the meeting with a letter to board outlining his argument, Manahan’s reiterated its five key points following Lawson’s economic presentation.

    The fundamental issue, he said, is not about economics: “but about whether the project is appropriate from planning and zoning, and whether the process here is a legal process. What’s happening here is not a legal process. I don’t mean the hearings, but what I mean is the fundamental rezoning application.”

    He said: “We believe this is conditional zoning in sheep’s clothing. State law tries to regulate this. State law identifies spot zoning and says it must comply with conditional zoning provisions.”

    The amendment does not pass the comprehensive plan test, he said.

    A town’s comprehensive plan, a document that helps guide municipalities with a collective vision for 10 to 15 years, provides a framework on which ordinances are to be developed.

    The proposed amendment must be in basic harmony with the comprehensive plan, he said, referencing Maine Supreme Court opinions.

    “We believe this ordinance is not in harmony,” he said.

    A substance abuse facility is nothing like a nursery school or daycare center, but much more like a hospital, he said.

    The comprehensive plan protects residential neighborhoods from commercial activity, and the plan, he said, repeatedly asserts upholding the value of residential neighborhoods. Fox Hill threatens the value and character of an established neighborhood, he said.

    Furthermore, unintended consequences include opening the door to all other substance abuse facilities.

    “Once you make a finding that the Coastal Residential district is appropriate then the courts will conclude the district has to be open to all substance abuse facilities — juvenile, methadone,” Manahan said. “This is because once the town makes the determination the federal laws and constitution require nondiscriminatory treatment.”

    Manahan also disputed the Fox Hill Real Estate LLC validity as having standing in the municipal process.

    “Investors should be the applicants, not a nonvoter putting this forth,” he said.

    Acting Chairman Sargent asked Camden’s Town Attorney Bill Kelly for an opinion on the latter.

    “I’m not concerned with the standing argument,” said Kelly. “There’s nothing unlawful about it. There is no way it is going to be struck down because it didn’t start the right way. It’s where it finishes.”

    Manahan said the town’s charter requires a proponent to be a qualified voter.

    “Is it permissive or mandatory,” asked Kelly, ending the discussion.

    Attorney Goodall then had his 30 minutes to argue Manahan’s points.

    “Courts have continuously emphasized that rezoning is a legislative act,” he said. “In Camden, the legislature is the town meeting, the voters. Ultimately it is the voters who decide whether or not a zoning ordinance gets amended. Courts have said they will defer to the legislative action and not second-guess the legislative action.”

    He said Manahan had “cleverly tried to cast doubt and confusion on this application.”

    Goodall said Fox Hill Real Estate does have standing, and that Manahan ignored the Maine Constitution.

     “The right to petition government is absolutely guaranteed for the people,” he said. “Persons may include corporations. [These are] inherent rights that cannot be denied. That’s a non-issue.”

    Goodall also said Fox Hill would be a residential rehabilitation facility, not a hospital, or health service facility.

    “The bottom line in the town of Camden is that residential treatment facilities are not allowed anywhere in Camden,” he said. “That’s a problem for Camden. Because you can’t exclude. You have to provide for them to go somewhere.”

    Goodall then produced a Maine statute book, and said it amazed him that Manahan would qualify the amendment proposal as conditional zoning.

    “An amendment for a special exception is a permitted form of zoning,” he said. “This is the classic bogeyman argument.”

    He said that the argument declaring Camden vulnerable to all types of treatment facilities — should Fox Hill amendment language be approved — was flawed.

    “The ADA equal protection clause and other statutes [cited] that you let one in you let them all in are not as broad as he is suggesting,” said Goodall. “Courts have made it clear that a town can regulate these facilities in a reasonable manner so as not to negatively impact neighborhoods Courts will defer to a legislative act.”

    Then Goodall took on the Camden Comprehensive Plan.

    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 12 clients at a time, each paying up to $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), hope to team up with the Massachusetts-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; “no Wall Street sharks,” he said.

    Other investors that have been named include Bob Campbell, of Rockport; Betty and Scott Harris, of North Carolina; and George Rodman, of Maryland.

    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 be operating the facility.

    The business deal between the for-profit Fox Hill Real Estate LLC and the nonprofit McLean Hospital, which would lease the property, is contingent on local zoning and site plan approval, as well as state regulatory approval.

    The first step is voter consideration of a zoning amendment that would allow a facility like the Fox Hill treatment center
    to seek planning board approval on Bay View Street.

    The amendment would adjust the town’s coastal residential parameters to allow special exceptions for “residential treatment facilities for comprehensive alcohol and related substance abuse disorders providing concurrent treatment for addiction and/or other associated psychiatric disorders.”

    The next step, contingent on whether Camden voters approve the zoning amendment, is for the project to undergo site plan review by the planning board. It is only the result of that second process that determines whether Fox Hill is allowed to become a treatment center.

    If the Planning Board sends the proposal on to the Camden Select Board, it will be the latter that ultimately decides if the amendment change goes before the voters.

     “I’ve been practicing land use law since 1972,” he said. “It’s been a while. I have worked with  a number of towns writing comp plans and zoning ordinances. When you read the statute that it must be consistent with the comp plan the statute actually says a zoning ordinance must be pursuant and consistent with comp plan adopted by legislative body. That’s a legal work of art. Flip open Webster’s and determine consistent. It doesn’t mean in conformity with. You can understand how it’s a legal term of art. It can be consistent with comp plan if the comp plan doesn’t prohibit it. The legislative body, meaning your town meeting, makes the determination of whether or not it is consistent.”

    Goodall said the town’s comp plan assembles its residential districts in three groups. The Coastal Residential zone, part of which lies along Bay View Street and part of which lies north of Camden Village toward the Lincolnville town line, is in a transitional area.

    “According to to your comp plan is not exclusively a residential district,” he said. “Many critics have gotten up here saying it is all residential. That’s not what the com plan says.

    Furthermore, he said, the Fox Hill house, built in 1903 as the Borden Cottage, is historic, and the comp plan says such properties are important to be protected.

    A suburban-style subdivision, which has been proposed as a possible alternative on Fox Hill, should the rehab facility be turned down, “would violate this character,” said Goodall.

    He also said that, “Spot zoning in maine law is not illegal, it is a neutral term.”

    Manahan refuted Goodall in the definition of ‘hospital,’ saying that the facility would be “licensed by the state for the sick or injured. Clearly they are sick.”

    “If any of the residents at this residential facility are in need of medical or surgical services, they will be taken to Pen Bay,” said Goodall. “It will not be licensed as a hospital.”

    Planning Board member Scholz questioned Goodall, saying if the legislative body is the people of Camden, “then why are here? You suggest we automatically approve this and are almost dismissive of fact that we should even bother about this.”

    Goodall responded: “I didn’t mean to suggest that you folks on the Planning Board are an unimportant cog in the process, in the wheel. Ultimately you do make a recommendation to the selectmen. Maybe make additional changes to language. You guarantee public participation, and that has a real education function for the voters if and when they ultimately vote. The record is being established now. Yu are playing an important role.”

    Manahan said: “Under Mr. Goodall’s version, the court will say yes once the legislative body decided. You’re the first line of defense. The Planning Board has to have a hearing, and have to decide if it is consistent with the comp plan. That is your job. It’s a multi-tiered process.”


     Politics and citizen opinion

    At the outset of the Oct. 17 meeting, Camden Attorney Bill Kelly reiterated what he has been cautioning since the Fox Hill proposal fell before the board, saying: “This board is a land use review board. They have the luxury of being the trench diggers to mine the salient points of whether this amendment fits or not.”

    The politics of it, he said, however “remain on the street and at the Select Board level,” and added that Maine is lucky to have local control over this issue. It is not, he said, “state or county run.”

    At the end of October, Attorney Daniel McKay, at the Bangor office of Eaton Peabody, wrote a letter to Camden attorney Kelly, outlining why questions raised by Camden resident Felicity Ferrell were not germane to the land use questions before the Planning Board.

    Ferrell had questioned whether Fox Hill Real Estate complied with state and federal securities law in the Fox Hill property sale.

    She wrote: “I wish to address the subject of the legality of the unregistered securities sold by the proponent H. Rodman Thompson, whether he applied and received an exemption from the Securities and Exchange Commission and from the State of Maine Securities Administrator, and whether there was third party verification of accredited investors (having the requisite $1 million assets excluding principal residence, and $200,000 annual income permitting them to invest in this type of speculative unregistered illiquid security).”

    McKay responded: “No such registration was undertaken  because it is not required,” adding that the only filing required had been a notice, which had been submitted.

    He also said that the 24 investors had accredited status, and said the company’s operating agreement was not a public document, and would not be shared with Ferrell.

    At the Oct. 17 meeting, various citizens delivered opinions on the project.

    Phil Montgomery said he was a 35-year recovering alcoholic and sobered up in 1979. He said he was not involved in the economic discussion of millions invested or jobs created, or whether it is a hospital or not a hospital. He said in 1979 there was not a lot of rehabilitation facilities.

    “I got on a program to arrest my disease and to become a human being again,” he said. “It’s about the human feelings. From my book, if you can save one out the 12 that are going to be there, you’re a winner.”

    Des Fitzgerald, who has lived on property abutting Fox Hill for 21 years, said his house is on the market and “the project is very material to us.”

    He is a proponent, he said. Fitzgerald said he called the town administrator in Princeton, Mass., the home of a sister facility, Fernside, to talk “about traffic, crime, real estate value and paparazzi. I’m here to recommend for anyone concerned, call Princeton and find out, as we did, that this is a wonderful community member.”

    Another abutter, David Hague, is not a proponent, and he argued that the issue is not about Fox Hill, but whether a drug rehabilitation facility is suitable for a residential zone.

    Carla Ferguson, of Camden, also spoke against the proposal. “Why are we going to change Bay View Street. Cisco will bring big trucks…. I don’t think we are a suburb of Boston. Do we want to have facility that is changing the whole town?”

    Other citizens spoke about the benefits of having ripple effects of McLean Hospital in the community.

     David Noble said his daughter’s wedding was held at Fox Hill.

    “We threw a hell of a party and there were no complaints,” he said. “We had a very loud band, had a lot of people and created a lot of traffic. I can’t imagine a rehab facility is going to cause as much trouble as we caused.”

    Paul Kemberling encourage the planning board to move the issue forward.

     “Instead of a lot of debate, I’d like to vote,” he said.




    Related stories:

    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



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