Plaintiffs Counsel: Christopher Neagle, Esq. Troubh Heisler
Defendant's Counsel: Amy Tchao, Esq. Drummond Woodsum
DECISION AND JUDGMENT
case is about a municipal water tower that has become a
lightning rod of contention in the Town of Harps well after
five years of discussion and study about its future. One
viewpoint is that the tower represents the best prospect for
improved cellular telephone reception in many parts of the
Town, and that it can repaired, repurposed and maintained at
a reasonable cost at little or no expense to the Town The
other viewpoint is that it is an unsafe structure, that it is
beyond repair at a reasonable cost, that it is not optimal
for cellular telephone purposes, and it that should be
Town meeting in March 2018, the proponents of demolition
prevailed in a vote and the tower is scheduled to come down
in a couple of weeks. This case reflects an effort by
proponents of saving the tower to stop the demolition and get
another Town vote on the future of the tower.
case came before the court for an evidentiary hearing August
28, 2018. Plaintiff Friends of Mitchell Field and Defendant
Town of Harpswell both participated with counsel and
presented evidence through witness testimony and exhibits.
The hearing was electronically recorded.
to the hearing, the parties filed a written stipulation of
facts, which is reproduced below in the paragraphs numbered 1
through 95. In addition, the parties stipulated to the
admission of 73 exhibits. Additional exhibits were admitted
during the hearing.
August 28, 2018 hearing was initially scheduled for purposes
of Plaintiff Friends of Mitchell Field's Motion for
Preliminary Injunction, but, as set forth below, the parties
stipulated to consolidate hearing on the Motion with a
hearing on the merits "provided that both parties are
able to get substantially all of their evidence in at the
hearing." See Stipulations of Fact ¶ 1,
infra. At oral argument, both parties confirmed that
they were able to complete their presentation of evidence and
rested at the close of the hearing. Accordingly, this
Decision represents a final, appealable judgment in this
argument was held August 31, 2018, at which point the court
took the case under advisement. Based on the entire record,
the court makes the following findings of fact and adopts the
analysis and conclusions of law set forth below.
parties stipulated to the facts set forth in the following
paragraphs 1 through 95, without stipulating to any
particular fact's relevance or significance:
parties agree to consolidate the hearing on Plaintiffs Motion
for Preliminary Injunction with a hearing on the merits of
the Verified Complaint pursuant to M.R. Civ. P. 65(b)(92),
provided that both parties are able to get substantially all
of their evidence in at the hearing.
Mitchell Field is a 118.5-acre former U.S. Navy site in the
Town of Harpswell ("Town") that has been owned by
the Town since 2001.
Mitchell Field is the site of some old buildings and other
site improvements built by the U.S. Navy when it owned the
site, including a water tower constructed by the U.S. Navy
around 1950 that is no longer in use.
Mitchell Field water tower is located on one of the highest
points of land in South Harpswell.
phone coverage is limited or not available in the South
Harpswell, Orr's Island and Bailey Island sections of
Town and is spotty in other parts of Town, including areas
near the Mitchell Field Water Tower.
Town of Harpswell follows a town meeting form of government.
It is governed by a three-member Board of Selectmen
("Board"). Its legislative body is the town
Richard Daniel has been the Chair of the Board continuously
since March 27, 2014. Kevin Johnson has been a Board member
since March 15, 2014. David Chipman was elected to the Board
on March 11, 2017.
was incorporated as a non-profit entity on February 23, 2018.
FMF has no members and 3 to 9 directors. Exhibit 45 (Articles
the March 9, 2013 Annual Town Meeting, the voters defeated
Article 38. Exhibit 2 (March 2013 Annual Town Meeting Warrant
July 1, 2014, Utility Service Group ("USG")
performed a Condition Assessment on the water tower for the
Town and submitted a Report. Exhibit 3 (USG Report).
September 6, 2014 email sent from Scott Kelley of USG to the
Town Administrator. Exhibit 4 (email).
September 19, 2014 email sent by the Town Administrator to
Scott Kelley of USG. Exhibit 5 (email).
September 22, 2014 email sent by Scott Kelley of USG to the
Town Administrator. Exhibit 6 (email).
its January 14, 2016 meeting, the Board initially proposed
putting an article on the 2016 Town Meeting Warrant to spend
$22, 000 to demolish the water tower. Exhibit 8 (Board
the January 28, 2016 Board meeting, David Chipman (who was
not on the Board at the time) asked the Board to add an
article to the 2016 Town Meeting Warrant to keep the tower.
He was advised to present a proposed article. See Exhibit 9
(Board Meeting Minutes).
or about February 22, 2016, a citizen's petition with 323
valid signatures was presented to Town Clerk Rosalind Knight
to add an article to the 2016 Town Meeting Warrant. Exhibit
11 (Letter from Town Clerk to Board dated February 22, 2016).
February 23, 2016, Preferred Tank & Tower of Henderson,
Kentucky provided the Town Treasurer, Marguerite Kelly, with
a $75, 000 quote to dismantle the water tower. Exhibit 10
(Letter from Preferred Tank & Tower to Marguerite Kelly
dated February 23, 2016).
its February 23, 2016 letter, Preferred Tank & Tower also
provided the Town with a quote to repair and renovate the
water tower. See Exhibit 10 (Letter from Preferred Tank &
Tower to Marguerite Kelly dated February 23, 2016).
March 1, 2016, Preferred Tank & Tower provided the Town
with a quote to repair and renovate the water tower based on
full encapsulation. See Exhibit 12 (Quote from Preferred Tank
& Tower to Marguerite Kelly dated March 1, 2016).
or about March 2, 2016, a meeting was held at the Town office
with Board Chair Rick Daniel, Town Administrator Kristi
Eiane, David Chipman, and Dorothy Rosenberg to discuss
revision of articles dealing with the water tower for 2016
Town Meeting Warrant. As a result, in addition to the
citizen's petition article, which remained on the warrant
as Article 35, the Board of Selectmen placed Article
34 on the warrant. Exhibit 14 (2016 Annual Town Meeting
Warrant and Results).
March 12, 2016: The 2016 Town Meeting approved Article 34,
and Article 35 was passed over. Exhibit 14 (2016 Annual Town
Meeting Warrant and Results).
March 31, 2016, the Board voted to create a Water Tower Task
Force ("WTTF") and adopted a specific charge for
the WTTF's work. ("WTTF Charge"). Exhibit 15
(Board Meeting Minutes); Exhibit 16 (WTTF Charge).
March 31, 2016, the Board appointed a WTTF Chair and four
other members to the WTTF. Exhibit 15 (Board Meeting
Chair of the WTTF was Board member Elinor Multer. The
following individuals were also appointed to the WTTF: Jim
Knight, Nelson Barter, David Chipman, and Dorothy Rosenberg.
The Board also appointed two alternate members of the WTTF:
David Mercier and Donnette Goodenow. Exhibit 15 (Board
WTTF held its first meeting on April 26, 2016. Exhibit 17
(WTTF Meeting Minutes).
Steve Cox, Director of Engineering and Maine Water Company,
attended the May 17, 2016 WTTF meeting to provide information
regarding the water tower. Exhibit 18 (WTTF Meeting Minutes).
a WTTF meeting held on September 6, 2016, David Libby, owner
of Communication Facilities, Inc. ("CFI"), made an
informal presentation to the WTTF on the possible use of the
Mitchell Field water tower as a communications facility.
Exhibit 20 (WTTF Meeting Minutes).
October 14, 2016, Town Planner Mark Eyerman prepared a
Communication Facilities Memo ("2016 CF Memo") and
presented it to the WTTF at their October 18, 2016 meeting.
Exhibit 21 (Communications Facilities Memo, dated October 14,
2016); Exhibit 22 (WTTF Meeting Minutes).
its October 18, 2016 meeting and after discussion of the 2016
Communications Facilities Memo, the WTTF voted to issue an
RFP for a water tower communications site manager. Exhibit 22
(WTTF Meeting Minutes).
the October 18, 2016 WTTF meeting, the Task Force voted to
recommend to the Board that the Town contract with
engineering firm Woodard and Curran to, among other things,
"assess the condition of the water tower to determine if
anything needs to be done on an interim basis to stabilize
the tower for 3 to 5 years while potential use of the tower
as a communications facility is investigated further."
Exhibit 16 (WTTF Meeting Minutes).
or about November 7, 2016, the Town issued an RFP to solicit
proposals for a water tower communications site manager
("2016 Town RFP"). Exhibit 24 (2016 Town RFP).
November 28, 2016, Northern Pride Communications, Inc.
("NPCI") submitted its proposal for Water Tower
Communications Site Manager in response to the 2016 Town RFP.
Exhibit 25 (NPCI response).
November 25, 2016, CFI submitted its proposal for Water Tower
Communications Site Manager in response to the 2016 Town RFP.
Exhibit 26 (CFI response).
its December 6, 2016 meeting, the WTTF discussed scheduling
interviews for water tower communications site managers and
reviewed a preliminary list of questions to be asked of the
two firms and reviewed a preliminary draft of the Woodard
& Curran report on cost comparison of options for water
provision on Mitchell Field. All Task Force members were
given the opportunity to craft questions for these
interviews. See Exhibit 27 (WTTF Meeting Minutes).
March 2017: Woodard & Curran prepared a Mitchell Field
Water Tower Assessment report for the Town. Exhibit 29
(Woodard & Curran Report).
March 11, 2017: The 2017 Town Meeting approved Article 35A.
Exhibit 30 (Annual Town Meeting Warrant and Results).
2017 Town Meeting elected David Chipman to be on the Board to
replace retiring Elinor Multer. Exhibit 30 (Annual Town
Meeting Warrant and Results).
Board appointed Board Chairman Richard Daniel to replace
Elinor Multer as the Chairman of the WTTF on March 15, 2017.
Exhibit 31 (Board Meeting Minutes).
the March 29, 2017 WTTF meeting, the WTTF reviewed Woodard
& Curran's final report. Exhibit 33 (WTTF
water tower communication site manager interviews were
scheduled by Town Treasurer Marguerite Kelly. Exhibit 34
(Email exchange between Marguerite Kelly and Dorothy
Rosenberg dated March 30-31, 2017).
Interviews with CFI and NPCI applicants for the water tower
communications site manager were conducted on April 7, 2017.
The interview committee consisted of the WTTF Chair Richard
Daniel, Town Administrator Kristi Eiane, Town Treasurer
Marguerite Kelly and Town Planner Mark Eyerman. Exhibit 27
(WTTF Meeting Minutes of Dec. 6, 2016); Exhibit 40 (WTTF
Meeting Minutes of April 18, 2017). David Chipman was present
for a portion of the interviews.
April 13, 2017, the Board appointed Ned Simmons to replace
David Mercier as an alternate member of the WTTF. Exhibit
36 (Board Meeting Minutes).
a WTTF meeting on April 18, 2017, Town Treasurer Marguerite
Kelly and Town Planner Mark Eyerman reported on the
interviews with communications facility site managers. See
Exhibit 37 (WTTF Meeting Minutes).
or about April 10, 2017, NPCI revised its proposal by email.
Exhibit 35 (Email to Marguerite Kelly).
or about April 10, 2017, CFI withdrew its proposal after
re-considering the site, the recent engineering reports and
potential carrier concerns. Exhibit 35 (Email to
$10, 000 approved in Article 35A at the 2017 Town Meeting was
never expended by the Town.
the WTTF meeting held on May 23, 2017, Marguerite Kelly
presented the Task Force with a spreadsheet she had prepared
laying out the various cost estimates for the rehabilitation
of the water tower. The Task Force agreed to postpone making
any recommendations until additional information could be
gathered. Exhibit 38 (WTTF Meeting Minutes, including
the September 12, 2017 meeting of the WTTF, Task Force member
David Chipman reported that he was "moving forward with
the formation of a nonprofit organization to raise money for
renovation of the water tower. Exhibit 39 (WTTF Meeting
WTTF held its last substantive meeting on October 20, 2017.
At the request of Task Force Chair Richard Daniel,
recommendations discussed by the Task Force were drafted by
Town Planner Mark Eyerman and read aloud at the meeting.
Exhibit 40 (WTTF Meeting Minutes).
its last meeting held on October 20, 2017, the WTTF voted 5-0
to place two articles on the warrant for March 2018 town
meeting: one to seek proposals from entities to rehabilitate
and manage the water tower, and the other to move forward
with the demolition of the water tower and raise and
appropriate not more than $40, 000 for that purpose if the
first article did not pass. Exhibit 40 (WTTF Meeting
Town Planner Mark Eyerman made a brief presentation to the
Board at its December 14, 2017 meeting summarizing the WTTF
recommendation of placing two articles on the warrant for the
March 2018 Town Meeting. See Exhibit 41 (Board Meeting
January 23, 2018, the Board held a workshop with three
members of the WTTF (Jim Knight, Dorothy Rosenberg and Ned
Simmons)-, to refine the details of a draft of the Request
for Expressions of Interest to maintain and manage the water