STATE of MAINE SUPERIOR COURT
KENNEBEC, ss CONSOLIDATED CIVIL ACTION
DOCKET NO. 1201
STATE ex rel. JOHN A. LUND and )
PORTLAND WATER DISTRICT, )
vs. ) ORDER
LEISURE LIVING COMMUNITIES, )
INC., at als, )
This consolidated action involves what originally were two separate law suits, one commenced in the Cumberland County Superior Court on February 25, 1970, designated Civil Docket No. 70‑208 and captioned State of Maine, ex rel. James S. Erwin, Attorney General, and Portland Water District, Plaintiffs v Leisure Living Communities, Inc., et als, Defendants (herein referred to as Cumberland # 70-208), and the other, commenced in the Kennebec County Superior Court on June 15, 1972, designated Civil Action Docket 1201 and captioned Attorney General of the State of Maine, Plaintiff v Leisure Living Communities Inc., Defendant (hereinafter referred to as Kennebec #1201). Both suits were consolidated in the Kennebec County Superior Court by order of this Court dated May 25, 1973. By “Stipulation of the Parties” dated July 5, 1973, the Attorney General and Leisure Living Communities, Inc., agreed on all the facts governing the issues presented by Kennebec #1201. On the basis of other stipulated facts and evidence adduced at an extended hearing in November 1972, this Court recently found the ultimate facts in the litigation which originated as Cumberland #70‑208. Its Findings are dated September 6, 1973, and were filed with the Court Clerk on September 7, 1973. None of the parties has taken an appeal from any portion of the Court's Findings. Accordingly, as of the date of this Order, all of the facts involved in all aspects of the litigation now known as Kennebec County Superior Court Consolidated Civil Action No. 1201 have been determined and are binding upon all at the involved parties.
Following the issuance of the Court's Findings of Facts, the parties conferred on several occasions and, most recently were before this Court for determination of the future course of the litigation which originated as Kennebec #1201 and which, in two counts, charges Leisure Living Communities, Inc. with violations of the Subdivision Law, so called, 30 M.R.S.A, Sec. 4956, as amended, and the Site Location of Development Law so called, 38 M.R.S.A. Sec.481‑488, and also to work out a modus vivendi with respect to such other problems regarding Frye Island as may arise in the future.
In the latter connections, the State of Maine, acting by and through the Attorney General, has indicated its acceptance of the Court's Findings of Facts and its willingness to join in this Order as a consenting party, thus terminating the consolidated litigation in every aspect with respect to issues raised by original Kennebec #1201 provided this Court continues to make itself available as the forum to hear any matters between these parties hereto involving the development of Frye Island.
Both the State of Maine and Portland Water District are willing to join in this Order as consenting parties whereby this Court retains continuing jurisdiction of the litigation.
For its part, Leisure Living Communities, Inc., assuming, but not conceding the applicability to Frye Island of the State's minimum lot size law, 12 M.R.S.A. Sec. 4807, et seq., as amended (not specifically involved in the present litigation), has expressed concern at to the policy and attitude of the Board of Environmental Protection in exercising its authority under Section 4807‑B of' that law to approve or disapprove the use of certain lots on Frye Island for subsurface waste disposal where the number of lots built upon does not exceed 750 in toto.
This Court stated in its Findings of Fact and reiterates here for the benefit of all concerned that, although it does not anticipate that any problems regarding the purity of the water of Sebago Lake will arise as an incident of the future development of Frye Island in accordance with its Findings of Facts, nevertheless should the plaintiffs' experts determine as a result of monitoring the waters of Sebago Lake that there is a buildup in phosphate concentrate or other pollutants in the lake originating from Frye Island which, when measured against the totality of the Findings of Facts in this matter, the evidence in the record, at such material now evidence as the parties may desire to bring to the attention of the Court, approaches critical limits, the plaintiffs may and, indeed, would be expected to return to the Court, and that this Court, given its developed familiarity with this matter, will retain jurisdiction for any such eventuality and hear any evidence and claims for relief, well an adjudicate any controversy relating thereto which is the proper subject of litigation.
With respect to future enforcement of the minimum lot size law as to any Frye Island lots which are not exempt therefrom, the policy and intent of the Board of Environmental Protection, as communicated to the Court through the Attorney General, is that, although the Board takes the position that it should not and cannot disclaim its statutory responsibility to pass on individual applications for approval of the use of undersized lots for subsurface waste disposal, the Attorney General anticipates that the Board will act in light of the history of this litigation, including the record, this Court's Findings of Facts and the mandatory provisions of 12 M.R.S.A. Sec. 4807‑B, in passing upon applications for approval for the use of such lots, at least up to a total of 750 lots.
Although the minimum lot site law and its application to Frye Island are not subjects of the present litigation and although the Court considers it in the beat interest of the parties to restate the anticipated position of the board, the Court does not consider the representation of the Attorney General as binding on the Board of Environmental Protection. Because of its accumulated knowledge respecting Frye Island, any controversy arising from a decision of the Board because of the disapproval of given lots on Frye Island should be presented to this Court in the first instance for resolution.
As to the conduct of percolation tests of lots on Frye Island intended for residential use with septic system waste disposal, such tests shall be conducted by a qualified soils scientist from the soil conservation service of the United States Department of Agriculture if available, and, if not available, by any one of the following engineering companies: Edward C. Jordan Co., Inc., Portland, Maine; Wright, Pierce, Barnes & Wyman, Topsham, Maine; and the James W. Sewall Co. Percolation tests shall be conducted and the results certified primarily on the basis of the requirements and provisions of the Maine State Plumbing Code. The examining agent shall certify the test results in the manner prescribed by said Code and by communication to the parties hereto. From time to time, the parties may request amendment of this Order to add to or change names of companies authorized to conduct percolation tests on Frye Island.
In the event of any disagreement between any of the parties concerning the issuance of any permit or approval all parties agree to bring the matter immediately to the attention of' this Court.
Accordingly, it is hereby ORDERED that the causes of action embodied in the suit originally filed in the Kennebec County Superior Court and docketed as Civil Action No. 1201, involving alleged violations of the subdivision law, 30 M.R.S.A. Sec. 4956, as amended, and the Site Location of Development Law, 38 M.R.S.A. Sec. 481‑488, be, and the same hereby are, dismissed with prejudice and without costs to any party; and that this Court has and shall retain jurisdiction of the suit originally filed in the Cumberland County Superior Court docketed as Civil Action No. 70‑208 for the purpose of providing the most appropriate forum for consideration and resolution of any issues which might arise in the future relating to application on of the Court's Findings of Facts, matters relating to issues of lot size or subsurface waste disposal (percolation tests), or any other issues which, might properly be made the subject of litigation involving the future development of Frye Island.
Done and dated at Augusta, Maine this 4th day of March, 1974.
James L. Reid
SUPERIOR COURT JUSTICE
REC’D and FILED
Mar 5, 1974
R. Valerie Page
Seal of the Court
STATE OF MAINE
CUMBERLAND, ss. REGISTRY OF DEEDS
Received t 4 H 28 M PM on June 28, 1974 ...... and recorded in
Book 3567 Page 109.... Attest