Island’s ex-owner unhappy with sale State agency promises conservation

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TENANTS HARBOR – Island owner Bert Witham believes he was swamped by an unforeseen wave of deception when he sold his 84-acre property on Metinic Island in 1993, and he fears a ripple effect on Maine’s other island owners.

Vickie Johnson of South Thomaston, who owns a share of another island off Spruce Head her grandfather bought in 1943, also is suspicious of a separate effort under way to reshape her family’s control of the land.

Yet the focus of their anger is not some robber baron or shady operator, but a public-private relationship designed to acquire and conserve land and water to be used for the public good.

Witham, of Tenants Harbor, and Johnson believe the good guys in this case have used tactics that leave property owners bound and gagged.

The gags will come off today at a meeting in Orono of the Land Use Regulation Commission, the organization that has jurisdiction over Maine’s unorganized territories, including islands. The proposed rezoning of Johnson’s land is on the agenda.

But Witham’s case has the longer history.

Metinic Island is 301 acres lying seven miles east of Tenants Harbor. Witham’s ancestors had owned the northern half of the island since the early 1900s, and when it was passed on to his generation in the 1970s, he ended up with a 50 percent share, or 84 acres.

Today, the island has about eight summer camps.

In 1985, Witham obtained court permission to subdivide his family’s land, which contains an old two-room camp with an outhouse. Five years later, it was discovered that Witham’s son Jason, then 14, had cancer.

He anticipated staggering medical bills and began preparing to sell the Metinic property.

He soon had a buyer for 20 acres – at least he thought he did. The buyer backed out after it became too difficult to obtain a building permit through LURC.

Witham wound up selling the 84 acres for $403,000 to The Conservation Fund, an Arlington, Va., preservation organization.

The foundation then sold the 84 acres to the U.S. Fish and Wildlife Service in May 1994 for $450,000, according to Katharine Bentley, a real estate specialist in the service’s Northeast regional office in Hadley, Mass.

But Witham, 58, says he was not aware as the transactions were occurring was an undercurrent of activity involving the Fish and Wildlife Service, LURC, the Rockland-based Island Institute, The Conservation Fund and the family that owns the southern end of Metinic. The activity focused on rezoning the northern end of the island, according to correspondence among the groups. Witham and some other Metinic property owners gathered the documents, some of which were obtained through the Freedom of Information Act, he said.

Correspondence among the groups shows that some of the conservationists were clearly interested in Witham’s land, which is within the boundaries of Petit Manan National Wildlife Refuge.

It started with a bird count. A count was made, a resource plan drawn up, and Witham was persuaded that he was better off selling his land.

Metinic is popular with nesting birds. In June 1989, the Island Institute, a private organization dedicated to helping preserve Maine’s island culture, wrote to LURC about Witham’s subdivision of northern Metinic. The institute said the owners of the southern portion of the island have asked the institute to evaluate the island and its birds.

Judy Post of Owls Head, who is an owner of the southern half, said Wednesday that she did not initiate a bird count or zoning changes, and claimed the Island Institute contacted her. She said the family has always cooperated with the Withams. Institute President Phil Conkling could not be reached Tuesday or Wednesday. Annette Naegel, who worked for the institute’s ecological services program at that time, remembered the bird count Wednesday, but could not recall who initiated the activity.

She said the institute and the Post family were involved with the state Department of Inland Fisheries and Wildlife in looking at conservation options. Naegel also said the institute would not have been involved in an effort to take away property owners’ rights.

By later that year, the Fish and Wildlife Service was interested.

In a 1989 letter, Suzanne Mayer, then-regional director of the service, asked Peter F. Noonan, then-president of The Conservation Fund, about available land on Metinic. The fund promotes sustainable conservation by arranging partnerships for land acquisition and other efforts.

“I would appreciate The Conservation Fund assisting the Fish and Wildlife Service … in the acquisition of this important land,” Mayer’s letter says.

If The Conservation Fund acquired the property, the Fish and Wildlife Service said, the agency would buy it, assuming the purchase received various approvals. “It is anticipated that funding constraints will make it necessary to delay the acquisition until Fiscal Year 1994 or later,” Mayer wrote.

Meanwhile, the state had its eye on Metinic, too.

In an interdepartmental memorandum, Alan Hutchinson of the Inland Fisheries and Wildlife Department, said he and another man went to Metinic to help assess the island’s nesting bird populations.

“The visit was made at the request of one of the landowners (the Post family) and the Island Institute (Annette Naegel),” the May 22, 1989, memo states. “The northern half of the island is being subdivided by the other family owning land on the island. This is causing concern for many reasons to the Posts and other people concerned about islands.”

Shortly after the bird count, Naegel and Conkling wrote to Fred Todd, then-chief planner for LURC, seeking information on the process for initiating zoning changes for Metinic to protect the wildlife habitat.

In July 1989, LURC signaled its interest to the Island Institute.

“Your expertise and support could certainly be helpful to the [state Department of Inland Fisheries and Wildlife] in putting together a zoning petition,” Todd wrote. “The petition would need to show the specific area which needs protection and which is proposed for rezoning.”

A “resource plan” was developed in conjunction with the landowners, Todd said Wednesday. He is manager of LURC’s planning and administration division. What prompted the plan was the Fish and Wildlife Service’s concern about how the island would be developed in light of the seabird nesting habitat, he said.

It took several years, but a resource plan was finally approved in August 1992 for the northern half of the island and in July 1994 for the southern side to protect the nesting birds, he said.

The resource plan put Witham’s land in a new kind of zoning known as P-FW, for Protected Fish and Wildlife.

Such a designation prohibited Witham from renovating, repairing or using his old cottage.

LURC claimed that since Witham had not used the cottage for two years, it had been abandoned.

Witham decided to sell. In the fall of 1993, he was paid $403,000 for his 84 acres. “The Conservation Fund told me if I didn’t sell it and we didn’t have this resource protection plan, it wasn’t going to be worth much,” Witham said.

Jack Lynn, spokesman for The Conservation Fund, said Tuesday that it is common practice for his organization to buy land for conservation purposes and to hold it until funding becomes available for government agencies.

“We had professional and cordial relations with the seller,” Lynn said.

But Witham is angry because, he says, he could have sold some of his land for more money and because he was stopped from using his camp.

And now, LURC is allowing the Fish and Wildlife Service to renovate and use the old cottage.

On Wednesday, Todd confirmed that the Fish and Wildlife Service had renovated the camp and has been using it, even though the 20-year resource plan prohibits use of the building.

“It was simply an agreement with Maine Department of Inland Fisheries and Wildlife and LURC,” he said. “That was the position we maintained.”

When asked why the Fish and Wildlife Service could use the camp and Witham could not, Todd said, “They’re using it for study purposes.”

Because of the way in which the camp is being used to monitor the nesting birds, LURC decided to allow it, Todd said, stressing its limited use.

Brian Benedict, deputy manager of the Petit Manan refuge, said that the camp is used by two researchers from April to the end of July, but could require use during other periods if that use were directly related to wildlife management activities.

“If I couldn’t use it and it was abandoned, how the hell are they down there using it?” Witham said. “When I question it, they say I’m not a landowner anymore.”

He has little good to say about LURC: “They’re the ones that forced this resource protection plan down our throats, and now they feel they can do anything.”

By the time Witham’s property was sold, he did not need the money for his son’s medical bills, which were paid by insurance. So, he says, he ended up selling the land for two other reasons: The zoning change prohibited use of his cottage, and he was swamped with legal bills related to his actions involving the property to the tune of $50,000.

That’s not all.

Now LURC is trying to change the zoning on Large Green Island, 10 miles east of Tenants Harbor, where Witham and his family also own property. He has no buildings there, but the changes would bring building restrictions, he said.

Todd confirmed pending changes on that island’s map base that could affect building.

“I’m very frustrated with what goes on,” Witham said. “It’s an abuse of the regulatory power.”

Vickie Johnson is frustrated too.

Another property owner, she recently was contacted by LURC about plans to rezone Andrews Island, where her family has owned land for more than half a century. She and her siblings own a third of the 200-acre island.

LURC proposes to rezone portions of Andrews Island as a flood plain.

Andrews is several miles off Spruce Head, near Dix Island in the Mussel Ridge Channel. There are seven cottages on the island.

All of the landowners on the island have written letters of objection to LURC regarding the proposed rezoning.

In LURC’s proposal, the flood-prone area would be expanded from approximately 3 acres to about 80 acres to reflect information recently obtained from the Federal Emergency Management Agency regarding a 100-year flood plain for the island. The 100-year flood plain is the high point that water has a 1 percent chance of reaching annually, Todd explained. He also noted that Louds Island and Marsh Island, both off Round Pond, “are a couple of other islands in the pipeline” for flood plain changes.

“There’s no way you can absolutely predict what will happen,” Todd said. He said such a level could be reached twice in the next month or not at all for 100 years.

Johnson dismisses claims that her family’s land floods. She said her father, Donald Harvey, has stayed on the island during two hurricanes and no flooding resulted.

Since there is little development on Andrews, the bigger issue for the owners there is whether the zoning change is also aimed at restricting development.

“They’re going to make [the] island worthless,” Johnson said. “They’re just taking over the Maine island owners’ land.”

LURC will meet at 9:30 a.m. today at the Best Western Black Bear Inn & Conference Center in Orono.