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Friends of Mitchell Field v. Town of Harpswell

Superior Court of Maine, Cumberland

September 5, 2018

FRIENDS OF MITCHELL FIELD Plaintiff
v.
TOWN OF HARPSWELL Defendant

          Plaintiffs Counsel: Christopher Neagle, Esq. Troubh Heisler

          Defendant's Counsel: Amy Tchao, Esq. Drummond Woodsum

          DECISION AND JUDGMENT

          A. M. Horton, Justice

         This 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 demolished.

         At a 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.

         The 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.

         Prior 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.[1] Additional exhibits were admitted during the hearing.

         The 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 case.

         Oral 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.

         Stipulated Facts

         The parties stipulated to the facts set forth in the following paragraphs 1 through 95, without stipulating to any particular fact's relevance or significance:

         1. The 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.

         2. 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.

         3. 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.

         4. The Mitchell Field water tower is located on one of the highest points of land in South Harpswell.

         5. Cell 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.

         6. The 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 meeting.

         7. 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.

         8. FMF was incorporated as a non-profit entity on February 23, 2018. FMF has no members and 3 to 9 directors. Exhibit 45 (Articles of Incorporation).

         9. At the March 9, 2013 Annual Town Meeting, the voters defeated Article 38. Exhibit 2 (March 2013 Annual Town Meeting Warrant and Results).

         10. On 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).

         11. September 6, 2014 email sent from Scott Kelley of USG to the Town Administrator. Exhibit 4 (email).

         12. September 19, 2014 email sent by the Town Administrator to Scott Kelley of USG. Exhibit 5 (email).

         13. September 22, 2014 email sent by Scott Kelley of USG to the Town Administrator. Exhibit 6 (email).

         14. At 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 Meeting Minutes).

         15. At 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).

         16. On 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).

         17. On 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).

         18. In 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).

         19. On 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).

         20. On 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).

          21. 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).

         22. On 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).

         23. On March 31, 2016, the Board appointed a WTTF Chair and four other members to the WTTF. Exhibit 15 (Board Meeting Minutes).

         24. The 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 Meeting Minutes).

         25. The WTTF held its first meeting on April 26, 2016. Exhibit 17 (WTTF Meeting Minutes).

         26. 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).

         27. At 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).

         28. On 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).

         29. At 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).

         30. At 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).

         31. On 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).

         32. On 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).

         33. On November 25, 2016, CFI submitted its proposal for Water Tower Communications Site Manager in response to the 2016 Town RFP. Exhibit 26 (CFI response).

         34. At 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).

         35. March 2017: Woodard & Curran prepared a Mitchell Field Water Tower Assessment report for the Town. Exhibit 29 (Woodard & Curran Report).

         36. March 11, 2017: The 2017 Town Meeting approved Article 35A. Exhibit 30 (Annual Town Meeting Warrant and Results).

         37. The 2017 Town Meeting elected David Chipman to be on the Board to replace retiring Elinor Multer. Exhibit 30 (Annual Town Meeting Warrant and Results).

         38. The 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).

         39. At the March 29, 2017 WTTF meeting, the WTTF reviewed Woodard & Curran's final report. Exhibit 33 (WTTF Meeting Minutes).

         40. The 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).

         41. 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.

         42. On April 13, 2017, the Board appointed Ned Simmons to replace David Mercier as an alternate member of the WTTF. Exhibit 36 (Board Meeting Minutes).

         43. At 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).

         44. On or about April 10, 2017, NPCI revised its proposal by email. Exhibit 35 (Email to Marguerite Kelly).

         45. On 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 Marguerite Kelly).

         46. The $10, 000 approved in Article 35A at the 2017 Town Meeting was never expended by the Town.

         47. At 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 attached spreadsheet).

         48. At 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 Minutes).

         49. The 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).

         50. At 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 Minutes).

         51. 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 Minutes).

         52. On 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 ...


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