May 1, 1990
Nancy Desjardin, Clerk
Kennebec County Superior Court
95 State Street
Augusta, Maine 04330
RE: Portland Water District v. Leisure Living Communities
Docket No. 1201
Dear Ms. Desjardin:
Enclosed please find defendants' application for Entry of Consent Decree in the above-referenced matter. This consent decree arises out of a 1974 action in which this court retained continuing jurisdiction. For the court's convenience, I have attached as exhibits the1974 Findings of Fact and Order of the Court.
It was originally planned that Portland Water District, the other signatory to the consent decree, and the defendants would submit this as a joint application. Because of some disagreement as to the exhibits to be incorporated into the application, the Water District has indicated it does not want the application in its present form to be considered "joint." I believe the Water District will be submitting its own memorandum of law in support of the application for the purpose of protecting the record. The judge who reviews this matter should be aware, however, that the terms of the consent decree itself are not in dispute and both parties wish the application to be granted and the terms of the consent decree made a part of an order whose terms can be enforced in the future by application of either party to the court. If you should have any questions regarding this matter, please feel free to contact me.
Thank you for your prompt attention to this matter.
John J. Flaherty
cc: Mr. Vic Richards
Mr. Paul Peterson
Robert Frank, Esq.
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss Civil Action
Docket No. 1201
STATE OF MAINE ex rel. ATTORNEY GENERAL )
and PORTLAND WATER DISTRICT )
) DEFENDANTS’ APPLICATION
) FOR ORDER CONCERNING
) ENTRY OF CONSENT AGREE-
LEISURE LIVING COMMUNITIES )
INC., ET AL., )
Frye Island, Inc. and Frye Island Municipal Services Corp. respectfully request the Court to issue an order adopting the attached Consent Agreement marked Exhibit A.
History of Litigation
The state of Maine and Portland Water District originated this action in the early 1970's, seeking to restrain threatened pollution of the waters of Sebago Lake incident to the proposed development of Frye Island. State of Maine ex rel. James S. Erwin, Attorney General, and Portland Water District v. Leisure Living Communities, Inc., et al., Cum. Cty. Sup. Ct., Dkt. No. 70-208 (filed February 25, 1970). Plaintiffs alleged, in essence, that the further development of Frye Island in Sebago Lake, in the fashion undertaken by the Defendant Leisure Living Communities, Inc., owner of substantially all of Frye Island, posed a danger of bacteriological and nutrient pollution to Sebago Lake. The complaint requested, among other things, that the Court enjoin Defendants from further development of the Island.
On February 27, 1970, the Court issued a temporary restraining order with the consent of all parties, prohibiting sales of unsold lots and construction or alteration of new residences or waste disposal systems. The restraining order and the agreement of the parties extended until May 29, 1970.
On May 27, 1970, the Court issued a further order providing for its retention of continuing jurisdiction over the development of Frye Island, but allowing Defendant Leisure Living Communities, Inc. to develop property on the Island subject to the provisions of the previous order, and to construct residences and sewage disposal systems on the Island in accordance with guidelines promulgated by the Court in its aforesaid order.
On June 2, 1972, the Court issued an Order temporarily restraining Defendants from any further construction until June 20, 1972 and ordered that the Plaintiffs' prayer for permanent injunction be set for hearing. On June 20, 1972, the Court entered a continuing restraining order against further construction, except with respect to certain persons identified, who were allowed to construct a residence and/or sewage or waste disposal system on their lot, provided that Plaintiffs agreed on the suitability of such lots and the manner or type of construction, or as otherwise provided by the Court.
On June 15, 1972, the Attorney General of the State of Maine commenced a related action in the Kennebec County Superior Court, Attorney General of the State of Maine v. Leisure Living Communities. Inc., Kenn. Cty. Sup. Ct., Dkt. No. 120. This suit and the original suit commenced in 1970 were consolidated in the Kennebec County Superior Court by Court Order of May 25, 1973, under consolidated Civil Action Docket No. 1201.
On September 6, 1973, the Court entered detailed findings of fact which, by its order dated March 4, 1974, became the law of this case. True copies of said Findings and Order are attached hereto and marked Exhibits B and C respectively. The Court found
"that 750 lots may be developed, each one with a septic tank disposal unit, provided each one passes the State Plumbing Code percolation test, and that no dangerous increase in phosphorus concentrate in the lake will result."
The Court also found, inter alia that
"750 lots can be developed . . . on the Island without an increase in pollution input that will raise the existing phosphorus concentrate to a point anywhere near the critical level."
The Court also found that
[t]he parties have agreed that all property owners on Frye Island were properly served and made parties to the suit at the inception of this action; (subsequent purchasers were made parties pursuant to Court order; [and] [t]hose parties who failed to appear in this action waive all their rights.
No appeal having been taken from the Court's findings, on March 4, 1974, the Court entered its Order adopting the findings verbatim.
The Court retained jurisdiction over the suit originally filed in the Cumberland County Superior Court "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 to the Court's findings of fact, matter relating to issues of lot size and/or subsurface waste disposal (percolation test), or any other issues which might properly be made the subject of litigation involving the future development of Frye Island." This Order was further modified in minor respects not pertinent here on April 23, 1974.
The Pending Consent Agreement
In the Fall of 1988, Plaintiff Portland Water District notified Defendants, its successors and others that the District's further issuance of waste disposal permits necessary for the development of residential lots on Frye Island would be restricted. Frye Island, Inc. and Frye Island Municipal Services Corp. disputed both the validity and lawfulness of the Portland Water District's action. Separately, Frye Island, Inc. commissioned Normandeau Associates, Inc. of Bedford, New Hampshire to do a further study of expected phosphorus discharges into Sebago Lake incident to the development of Frye Island. That study, completed in March of 1989, provided the basis for the Consent Agreement now before this Court, and is appended thereto as an incorporated exhibit.
WHEREFORE, Defendants Frye Island, Inc. and Frye Island Municipal Services Corp. request the Court to issue an Order adopting the attached Consent Agreement.
Dated at Portland, Maine this 1st day of May 1990.
John J. Flaherty
Attorney for Defendants
Frye Island, Inc. and Frye
Island Municipal Services