Ownership shift delays plans for dam

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WINTERPORT – A last-minute shift in ownership of the West Winterport Dam has forced the Board of Selectmen to delay plans to take the dam by eminent domain.

The change in ownership was announced by attorney Clinton B. Townsend of the environmental group FISH, or Facilitators Improving Salmonid Habitat, during Tuesday’s selectmen’s meeting.

Another matter addressed by the board at the meeting was the petition drive to recall assessor Paula Johnson. Selectmen accepted the petition and scheduled a special recall election for the first Saturday in January.

FISH had bought the dam a year ago from owner John Jones for $1. But when the selectmen announced last week that they intended to use eminent domain to gain ownership of the dam, FISH hurriedly transferred the deed of ownership back to Jones.

FISH retained the right to pursue permits to remove the dam.

Townsend described the legal sleight-of-hand as a “bombshell” and admitted it was designed to stave off any attempt to take the dam by eminent domain.

As those attending Tuesday’s meeting of the selectmen protested audibly, Townsend explained that transfer was made because Maine law prevents government entities from taking someone’s property by eminent domain if they live there. Jones lives beside the dam in a motor home.

“We’re not going to back away from our desire to remove the dam,” Townsend told the approximately 35 Winterport and Frankfort residents who attended the meeting.

Jones told the crowd economic constraints forced him to sell the dam. He had used the dam for hydroelectric purposes, but deregulation lowered the price of power and drove him out of business. He said he first offered the dam to the town but turned to FISH when a deal did not materialize.

“I apologize,” Jones told the group. “I’ve insulted some of you people by what I have done, but I had no other choice than to get out from under it.”

Former Selectman Roger Doyon scoffed at the contention that Jones’ motor home was a residence. He also questioned how Jones could claim residency when his pickup truck was registered in Montana.

“Why don’t you license your truck in Maine?” asked Doyen. “You got a problem with the state of Maine?”

Though some at the meeting questioned the wisdom of using taxpayer money to acquire and maintain the dam, most of those on hand supported the proposition of eminent domain.

No estimates of the cost of taking or maintaining the dam were put forward by town officials. They indicated that engineering and appraisal firms would have to be hired to determine those figures. Andrew Good of the Atlantic Salmon Commission said the agency was willing to assist the towns on those studies, but the selectmen did not respond to his offer.

Before Townsend’s announcement, the board had hoped to use the meeting to schedule a special town meeting on the eminent domain issue as well as authorize lawyer Charles Gilbert to prepare a warrant article outlining the steps required to accomplish that. Scheduling a special town meeting was put on hold, however, in order to give Gilbert an opportunity to review FISH’s latest legal maneuver.

FISH wants to remove the dam to allow the passage of anadromous fish and restore the Marsh Stream to its original character. FISH has applied for permits from the Federal Energy Regulatory Commission and the Department of Environmental Protection that would allow it to demolish the dam.

Residents of Winterport and Frankfort want to preserve the dam and its 3-mile-long impoundment for fire protection and flood control. The towns raised $10,000 to retain Gilbert’s services and block the dam’s removal.

Gilbert told residents eminent domain provided the best legal opportunity to save the dam. He suggested fighting FISH, the federal government and DEP in court would be a daunting task.

Gilbert cautioned that while the towns may believe the argument to save the dam would carry as much weight as the one to remove it, laws supporting that position were “virtually nonexistent.” Mounting a court fight would bring the towns into “uncharted waters,” he said.

“This regulatory process is going to be expensive and uncertain,” Gilbert said.

Instead of the town spending its money on lawyers, Gilbert recommended taking the dam outright. He said such action would be no different than taking a portion of a person’s yard to widen a highway.

Gilbert said municipalities have the power to take land for public purposes and flood control and fire protection would fall within that category. Although the towns would have to pay FISH fair value and continue to maintain the dam, Gilbert said, those options would be less expensive and more certain than trying to block the permits.

“Eminent domain puts the people of Winterport and Frankfort in the driver’s seat,” he said. “I think it is a legitimate public purpose to go forward and do it.”

The selectmen decided to postpone acting on that recommendation and voted instead to instruct Gilbert to review the shift in title from FISH to Jones and report back to them next Tuesday.

In other business:

. Selectmen voted to hold the assessor recall election at the Samuel L. Wagner School cafeteria on Jan. 5, 2002. The polls will be open from 8 a.m. to 8 p.m.

Johnson and assessor Paula Cole were made the focus of the petition drive because of their commitment to collecting personal property taxes. Cole, whose term was scheduled to expire in June, resigned last week. Johnson was elected to the board this summer and her term runs through June 2003.

Because Cole resigned, the selectmen have the authority to appoint a replacement to complete her term. The town is seeking candidates for Johnson’s seat in the event she is recalled by the voters.

Nomination papers for Johnson’s seat, should she be recalled, are available at the town office. Papers may be picked up during normal business hours and must be returned to the town office no later than 5 p.m. Tuesday, Dec. 18.