Should a multi-million dollar land development corporation which bought land in Limington expressly for development be considered a hardship case?
Should they be exempted from the laws that the ordinary landowner must follow?
A group of residents did not think so.
This is the story of how we stood up for the laws enacted by the townspeople...
And helped both Limington and other towns save tax dollars and protect the environment.
by Dick Jarrett
Saco River as viewed from Limington at Whaleback Brook
In some ways, the Patten Corporation did me a favor. For years I attended town meetings but was too reserved to participate. Like many people I was wrapped up in my own life and concerns. My family and I were (and still are) in the process of building our own house. Plus my contract engineering work always has its ups and downs so I left the town's affairs to others. Patten changed all that.
Sleepy Hollow, an old farm on Tucker Road, was built where it is mainly because of the natural spring up the hill from the house. Indeed, this source of water was one of the reasons why we chose to build our house where we did. Finding water had been a problem for a great many people on this end of Tucker Road so we were pleased that this natural source was available. In recent years, Sleepy Hollow had been used mainly as a summer residence. When it went on the market, the absentee owner hoped to realize a greater return by selling it as a year round house. He had a 200 Amp electric service installed (but no lights and only a single outlet). And because he was unaware that the valve for the gravity feed water had been shut off at the well, he had a new well dug... right next to the barn yard! Unfortunately not only was the water quality for the new well highly suspect because of its location, it would be later found to go dry during the summer. While there were several offers made on the property, the Patten Corporation secured an option to buy the old Sleepy Hollow Farm.
Patten's reputation had preceded them. In December of 1985, the Maine Attorney General's investigation was still far in the future and it would be years until CBS's 60 Minutes would expose Patten's questionable practices on national television.
Nevertheless, the Patten Corporation had generated headlines throughout Maine and its home state of Vermont. In fact, Patten's common (but legal) practice of choosing lot sizes just large enough to avoid all but local review had been so abused in Vermont that that state had changed the laws to close those loopholes. Too many times the local taxpayer was left holding the bag for the true cost of the development while Patten made their money and left town. And though they did business as Patten Realty, they were not licensed Realtors nor did they have to be. Since they only sold their own land, they were exempt from the laws and standards that a normal Realtor must follow.
The First Meeting
So local residents were very worried about the impact on their taxes, the impact on Tucker Road itself, and the safety problems created by the feared doubling of the traffic that a Patten subdivision might bring. A statement of concern was drafted and circulated by one of the residents and presented to the Planning Board on the day Patten first came to inquire about the town laws. The chairman rightfully pointed out that it was much too early for Planning Board action. He went on to stress that the board would be fair and that Patten must follow the town laws. Patten was even given a copy of the town's subdivision ordinance free of charge so that there would be no questions about the specific requirements that Patten would have to follow.
Masters of Manipulation
I was encouraged. As long as Patten followed the law, there would be little impact on the town, the taxpayers, and the drinking water supply. If they really did decide to go ahead and purchase the land, then they of course had every right to do with it as they pleased... as long as they followed the laws. But a nagging unease lingered in my mind. Patten was known for skirting regulations. And what impact could a small group of citizens have against this multi-million dollar land development corporation? The nagging unease soon led to real panic. The Patten representative told us privately right out that he had no intention of following our local laws. Plus Patten was a master of manipulation. They dealt with planning boards all over the state and knew all of the tricks. I, like countless other individuals who crossed paths with Patten, did not know what had hit me. Before I knew what was going on, the Planning Board was considering hardship variances... as if a multi-million dollar corporation which bought this land strictly for development could really be considered a hardship case!
It was March of 1986. The Department of Energy was proposing a high level nuclear waste dump seven miles from Limington. While studying the Patten application, I sat listening to the D.O.E. hearing on the radio. I wanted to be there. As an engineer I wanted to testify about the overconfidence we engineers sometimes had when trying to overcome nature. Any waste depository would have to last from ten to fifteen thousand years before the radioactivity had decayed to safe levels. Ten to fifteen thousand years ago this area was buried beneath a mile of glacial ice. Could we engineers really build vessels and structures to last that long? The greatest construction engineering accomplishment of all time, the pyramids of Egypt, were only four thousand years old. They took the wealth of a kingdom to build and they still failed in their designed function. And the proposed waste facility would be built by the lowest bidder. But I could not be there to testify. Somebody else would have to fight that battle. There were probably just as many people concerned about what Patten was doing across the state as were concerned about the D.O.E. proposal. But the D.O.E. had a highly visible plan and a single target. Patten fought hundreds of small battles. Their opponents were scattered and organized independently. Patten had seen every argument and had a strategy for handling each one. So instead I worked alone and prepared a fourteen page report listing the specific instances where the proposed Patten subdivision directly contradicted the laws enacted by the Limington townspeople.
Patten's Favorite Tricks
Sometimes I feel dense. I think it is because I am too trusting and assume that people are basically honest. It took a long time but I finally figured out one of Patten's favorite tricks. Patten knew very well what the minimum requirements of the law were. But they chose not to follow the laws and time and time again they would come back to the board and announce "Well, we have everything you asked for." If anyone challenged them about their numerous omissions, they would say that they just overlooked it and would bring it the next time. Only they never would. They would just keep coming back, wearing down everyone in the process.
Stuck in the Mud
One of the concerns many people had was about the condition of Tucker Road. During the Planning Board's on-site inspection, one board member in a four wheel drive vehicle sank down in the mud ... in the center of Tucker Road. Try as he might he could not move and had to wait to be towed out. The muddy conditions were so bad that the chairman had to try four times before he could get to the top one of the hills. Patten had stated all along that they would not spend a dime to help the taxpayers fix up the road. The roads were purely the town's responsibility. They pretended that it was unheard of for a developer to share in the expenses even though those costs were only necessary because of the developer's subdivision. Of course it really is quite common for planning boards to require that developers help relieve some of the tax burden that they are imposing upon the town. Most people remember the excitement when Martin's Shop and Save (now Hannaford Brothers) was built in Gorham back when it was a sleepy little town. But few people realize that the developer paid for the traffic lights at the intersection where Cumberland Farms now stands. Maybe we would be able to win at least one small victory for the taxpayer after all.
A Major Setback
But then a major setback occurred. The Code Enforcement Officer had been fired after presenting a list of plumbing code violations on Horne Pond to the Selectmen. The chairman of the Planning Board, Paul Locke, as well as two other town officials resigned in protest. A new chairman was elected by the Planning Board members, but this new chairman had his own adgenda. We were in trouble. The chairman's first priority was to clarify some of the zoning districts in town by creating written descriptions, a worthwhile goal. Only mysteriously, the chairman's own land was "clarified" out of one district and into a more favorable zone!
A Hollow Victory for Tucker Road
Due to the pressure that the townspeople were generating, Patten then agreed to pay up to one-third of the $35,000 cost calculated by the road commissioner for the improvements required on Tucker Road. But Patten was cagey. They supplied and the Planning Board signed a "findings of fact" with so many restrictions that it would be virtually impossible for the town to use any of the Patten money. The concept was made to look good politically, but the taxpayer would be saddled with the entire cost.
Threats and Promises
Patten of course was still very active over the rest of the state. Although the details were never exactly clear, up in Edgecomb Maine, their planning board did not give Patten what they wanted. In a calculated move, Patten filed a well publicized one million dollar damage lawsuit against the Town of Edgecomb. The suit was later dropped, and in the words of Patten "We came to a mutual understanding." But the suit had the desired effect for Patten. Shock spread to planning boards all across the state. Many boards were afraid to enforce their own laws. And Patten took maximum advantage of the threat. I remember them telling the Limington Planning Board that if their subdivision was rejected, Patten would take steps like they did in Edgecomb. However if it was approved and anyone appealed, it would not cost the town a dime because Patten would defend their decision as a party-in-interest.
Of course Patten's threat was empty and their promises hollow. They knew very well that as long as a board follows the law, a court will unquestionably side with the town. It is only when a town goes outside the law that it can get into trouble. Perhaps the board was worried because in a previous subdivision the board had gone into an illegal executive session and thereby compromised the town's position. That case was still in the courts.
The First Approval
The final subdivision approval sailed through with no trouble in September of 1986. In fact the chairman had already sent a letter to Patten promising approval before the board had even received all of the facts! Our primary concerns, protection of drinking water and cost to the taxpayer, were ignored. Meeting the minimum lot dimension requirements should have been easy. After all, each lot was five acres in order that state review could be avoided. But the lots were so long and narrow that they could not meet the town's minimum width requirements.
Concern for Aesthetics?
A group of concerned residents filed an appeal but Patten was so confident that they started construction anyway. The historic stone culvert which graced the valley at the stream crossing was bulldozed under and replaced with a corrugated steel pipe. And the "Hollow" of Sleepy Hollow? It was filled in with gravel from a local pit in order to build an access road to the river front lots. I was surprised that Patten would move so rapidly. How could they have obtained the required state permits for construction near the river so quickly? When I asked the state agency about the permits, the state forced a stop to construction. Patten had not even bothered to apply for the permits!
My wife and I also filed our own appeal. The Patten representative was incensed. And I was shook up too. After all, it is not everyday that the vice president of a multi-million dollar corporation tells you that he is going to see to it that he costs you just as much money as he possibly can!
The Games Selectmen Play
The appeal should have been easy. The chairman of the Board of Appeals was a registered soil scientist and I am confident that he would have given a fair hearing to our concerns about groundwater contamination. But Patten and the Selectmen had a few more tricks up their sleeves. Although the Appeals Board had heard subdivision appeals in the past, all of a sudden the Selectmen decided that the Board was not authorized to hear such appeals. And because the Selectmen waited until after the thirty day deadline to reject our requests, they claimed that it was too late for us to file an appeal in Superior Court. We were out of luck. Patten was off free and clear.
Fortunately, because of the unusual circumstances, the Court agreed to hear our appeal anyway. Four years later, the Law Court (Maine Supreme Court) would rule that the Appeals Board should have heard our request. Had the Selectmen allowed this, this story would have probably ended right here.
Much to my horror, an appeal to the court takes the form of a lawsuit. Not a lawsuit for damages but a lawsuit to request that the Planning Board and Selectmen be required to follow the town laws. But what choice did we really have? If citizens do not keep their goevernment in line, then everyone will lose their rights.
Townspeople: 1, Patten: 0 A Short Lived Victory
Nearly a year later (in August of 1987), Superior Court Judge Lipiz ruled that among other things that the Planning Board did not have the authority to grant certain waivers and should not have allowed lots that were too narrow. The decision of the Planning Board was vacated (the approval was reversed by the Court).
But our victory was short lived. Patten was came right back and their strategy was soon clear. They had no intention of following the town laws. Instead they would just keep coming back with the same basic proposal until we were exhausted and broke. It was just a game for them. They widened the lots that were too narrow by taking land from the adjacent lots which then made those lots too narrow. Rather than just doing it correctly, they would come back time and again with the same problem shifted to a different lot.
And all of this activity was simply a distraction designed to make us look picky while the real problem and our primary concern, the soil suitability, was ignored. If the soils were really adequate, a hydrogeological assessment could virtually guarantee that construction of the subdivision would not affect the drinking water supply or the pocketbook of the taxpayer. It was within the Planning Board's authority to ask for such a study. But Patten was vehemently opposed to any hydrogeological work. This is the reason that they avoided the Department of Environmental Protection jurisdiction in the first place; the D.E.P. requires these standard plans. It was not the cost. It was the results of the study of which they were afraid. A hydrogeologist can plot the path and extent of the underground "plume" of pollution that emanates from each septic leach field. The diagram created can then be used to allow wells to be placed safely. But the lot lines in the subdivision had been drawn with little regard to the natural topology. As proposed, each well would be located immediately downhill from the neighboring leach field. Patten's hired experts would point out that the plan met the minimum 100 foot separation requirements of the plumbing code. But the plumbing code was never designed to be the sole protector of drinking water. The code's primary purpose is to get the waste underground and out of sight. The whole purpose of hydrogeological studies and subdivision review in the first place is to protect the drinking water by looking at the larger picture.
Approved Again Have we been here before?
In May of 1988, Patten came before that Planning Board with their newly revised final plan and asked for approval. The Planning Board was very tired of seeing this subdivision. I can understand their position. I was exhausted myself. The plan had more documentation but only superficial changes since the last approval. The plan was approved again and we prepared to go back to court.
Appealing a subdivision is a very one-sided proposition. If we win, the most we can realistically ask for is that the town follow the laws enacted by the townspeople. If we lose, the developer can ask for damages from us due to the delay. Although a group of nine residents appealed and won before, the climate was changing. It was becoming more and more common for large corporations to file meritless countersuits merely to bankrupt their opponents with legal fees. I could not ask anyone else to take that risk. So only four of us appealed the decision. Although it made no personal financial sense for us to challenge Patten again, we could not stand by and watch Patten make a mockery of our town laws as well as terrorize the whole state. We felt we had a very good case. In fact, in a moment of candor after the oral arguments, one of the opposing attorneys told me that if the judge took the time to read and understand the issues, that we would have no trouble winning this case.
Two Steps Forward - One Step Back
A year later we were dealt a stunning setback. In a very short decision, Judge Perkins had denied our appeal. Patten was not only free to continue, but if they wanted, they could sue us for damages. But I think they knew that their margin of victory was thin and that our determination was still strong. Both sides worked together to try to negotiate an agreement so that the case would not have to go on to the Law Court. But after several rounds of negotiation, it came to this: we were willing to drop the case if Patten would perform the hydrogeological study. This is the same study that would have been done if the subdivision had fallen under D.E.P. jurisdiction. All other objections, even the substandard lot dimensions, would be dropped. It was a fair proposal: the study would cost less than the legal fees that Patten would have to spend if it went back to court. But Patten was afraid of what such a study would show. They declined and the case proceeded to its final stage... the Maine Supreme Court.
Who is Costing Whom Money?
All during the times we were in court one thing puzzled me. Why were the Limington Selectmen willing to spend so much taxpayer money in legal fees for the benefit of Patten Corporation? There was a tremendous duplication of effort with both Patten and the town's lawyers arguing the same case. Patten could have handled the case essentially alone with only token support from the town. And the town had literally nothing to lose. The worst case that would happen is that the court would say that the Planning Board had to follow the town laws. Period. But some reasons come to mind. One is pride. It was embarrassing for the Planning Board to be caught ignoring the laws. But the simple solution to that is to just follow the laws. Another reason might be the animosity felt by some of the town officials against one of the plaintiffs, Sherwood Libby. The town fathers had never forgiven him for helping to institute the Saco River Corridor Commission. They had also never forgiven him for getting town meeting moved to Saturdays so that everyone, and not just a select group, could have input into the running of the town affairs. Whatever the reason, it was within their power to use discretionary funds from the legal account to help Patten ... and they did.
The Final Result
After another year of waiting, the Law Court released their opinion in the summer of 1990. The Planning Board decision was again vacated; this time by a unanimous decision of the Maine Supreme Court. The Planning Board was told again that they acted outside of their authority. Among other things, they must consider soil suitability as defined by the town ordinances when reviewing subdivisions. They also ruled that the local Board of Appeals should have heard our complaint. The victory was reported in newspapers all over New England and I had my fifteen minutes of fame on Maine Public Radio's Maine Things Considered.
How did Patten make out? In the words of a Patten representative, "We never lose money on a sale." Due partly to the dramatic rise in real estate values during the time period that these events took place, Patten still made a handsome profit by dividing the land into two lots.
What was gained as a result of this suit? Towns all over Maine were shown that they need not fear large corporations like Patten. Our action reversed the propaganda value that Patten had gained in their suit against the Town of Edgecomb. Towns were shown that they not only can but should enforce their local laws and the courts will back them up. And in Limingon, since the subdivision plan was abandoned, this meant that the taxpayer would not have to fix up the road for Patten or be responsible for the water supply. The town saved money both over the short run and the long term.
The Maine Attoney Generals Office launched an investigation into some of Patten Corporation's practices. As a result of this investigation, Patten signed a consent decree in which they agreed to pay $80,000 to the Maine Attorney Generals Office to be distributed for such tasks as advocacy work, education, land aquisition, and litigation. Although Patten admitted no wrongdoing, they agreed not to do it again. The Attorney Generals office later awarded $1000 to us so that we could continue our public advocacy work. Patten was also required to refund $900,000 to people who had purchased their properties and later was fined another $10,000 for failing to live up to the terms of the consent decree.
In February of 1996, Patten Corporation changed their name to Bluegreen.
Lorraine and Sherwood Libby joined with my wife and me during the entire battle and helped tremendously with moral and financial support. Our lawyers, Maxine Paul Pouravelis and John Wuesthoff also believed wholeheartedly in the cause and routinely underbilled or labored pro bono. And we would have been lost without the support of so many of the residents of Limington and other towns who encouraged us throughout the process. Special thanks go to the five other original plaintiffs who put their names and reputations on the line to join with us.
Late winter blocks of ice piled up on the Saco River