Court lacks jurisdiction, judge says

Camden’s Fox Hill LLC, McLean Hospital prevail in federal court

Lynda Clancy

Mon, 02/09/2015 - 3:00pm

Fox Hill, from the water. The estate rises above Bay View Street on 13.8 acres. (Photo by Lynda Clancy)

Attachments

PORTLAND — U.S. District Court Judge Nancy Torresen ruled Feb. 6 that her court lacked jurisdiction over a case filed last year against Fox Hill LLC and McLean Hospital Corporation and subsequently dismissed the claims.

At the end of March, a group of Bay View Street neighbors filed their complaint in U.S. District Court against Fox Hill Real Estate Company and McLean, asking the court to prohibit the use of Fox Hill for treatment of clients with drug and alcohol addictions.

The group, comprising Undercliff Cottage LLC, Phelan 2006 Family Trust, Julie and Charles Cawley, Parker S. Laite, Sr., and Friends of Camden Maine LLC, said then that “the proposed Bay View property facility does not constitute a ‘community living arrangement’ for persons suffering a ‘handicap’ and ‘disability’ under the governing laws.”

But on Feb. 6, Torresen said: “Here, the defendants argue that the patients proposed to be treated at the Bay View Facility qualify as ‘handicapped’ under the Fair Housing Act on account oftheir substance abuse addictions. The plaintiffs have not alleged that these same patients are not handicapped, as defined by the Fair housing Act, and have clarified that they are not asserting that the proposed patients are not ‘disabled.’

In her case summary, Torresen said the plaintiffs had envoked the federal Fair Housing Act and a particular Maine land use law, “in an attempt to prevent the creation of a facility they believe violates Camden’s Zoning Ordinance.”

She concluded: “Because the issue of whether the Bay View Property patients will be ‘handicapped’ or ‘disabled’ is not in dispute, there is no embedded federal question. The court lacks jurisdiction. For that reason, the plaintiffs’ claims must be dismissed.”

(See attached PDF for Torresen’s complete decision)

“Justice was done, and we are very pleased with this decision,” said Fox Hill LLC Attorney Paul Gibbons, of Camden. “We will move forward.”

A statement from Merril Halpern, of Rockport, and who is an investor in Fox Hill, and Philip Levendusky, of McLean Hospital, was issued later in the afternoon Feb. 9. They said: “We are pleased the court agreed with us that our residential patients are protected under federal law. The court’s decision shows that the town of Camden correctly concluded Fox Hill’s caregiving or Community Living Arrangement is a protected use.

“We look forward to providing world-class recovery and therapeutic services in a serene environment. Our residential facility — McLean Borden Cottage — operated by McLean Hospital will continue to be a strong mental health advocate and good neighbor to the people of Camden.”

The Maine Department of Health and Human Services issued McLean Borden Cottage a one-year provisional license to operate a behavioral health facility at the Borden Cottage on Bay View Street in Camden last November. That meant that Fox Hill could establish a high-end residential alcohol and substance abuse treatment facility for up to eight clients at a time, each paying approximately $60,000 for four to five weeks of treatment.

"McLean Hospital has met all licensing requirements and Maine Department of Health and Human Services has issued McLean Fox Hill a one-year provisional license to operate as a behavioral health facility,” said Mary Mayhew, DHHS commissioner, in a statement issued Dec. 1.

She added: “Opponents of this facility have acknowledged that DHHS's licensing process considers clinical requirements and not the concerns they have raised, which are governed by local ordinances."

The DHHS license is good for Nov. 25, 2014 through Nov. 25, 2015. McLean had submitted the application to DHHS May 14.

Fox Hill project

The 13.8-acre Fox Hill estate at 235 Bay View Street has been turned into a high-end residential alcohol and substance abuse treatment facility for up to 8 clients at a time, each paying approximately $60,000 for four to five weeks of treatment.

Owners of the estate, Fox Hill Real Estate LLC (24 investors, including Lincolnville summer resident Tom Rodman and Rockport summer resident Merril Halpern), have teamed up with the Belmont, Mass.-based McLean Hospital to establish the facility in the former Borden Cottage that sits on a hill overlooking Penobscot Bay.

Rodman has said the other 22 investors are family and friends. Investors who have been named include Bob Campbell, of Rockport; Betty and Scott Harris, of N.H.; George Rodman, of Maryland; and Joe Cooper, of Camden.

Philip Levendusky, associate professor of psychology at Harvard Medical School and senior vice president for business development and marketing, as well as director of the psychology department at McLean Hospital, is representing the nonprofit that would operate the facility.

McLean is leasing the facility and operating as a nonprofit. Fox Hill Real Estate LLC would own the land and buildings, and continue to pay real estate taxes to Camden, which are currently approximately $100,000.

In February 2014, citizens lined up before the Camden Select Board arguing their positions as to why the town should, or should not, allow a zoning ordinance amendment concerning Fox Hill to proceed to a town vote.

Thirty residents, business people, attorneys and public relations personnel hired by the opposition spoke against the proposal, saying it would diminish property values, constitute spot zoning, create a dangerous environment, threaten the integrity of Camden’s zoning ordinance and destroy the character of the neighborhood.

Twenty six residents, lawyers, business people, land use planners and Fox Hill investors spoke in favor of the Fox Hill proposal, advocating that the amendment be placed before voters. They said the proposal would energize the local economy in a town populated heavily by adults age 65 and older; that the proposal would preserve an historic property and match the quiet and private nature of the neighborhood; and with the collaboration with McLean Hospital, establish a stronger wellness agenda in the community.

Fox Hill Real Estate, in conjunction with McLean Hospital, had spent eight months in a municipal process attempting to convince Camden to put before voters a zoning amendment change that, if approved, would allow the two entities to pursue a special exception for siting an alcohol rehabilitation center at Fox Hill. The process involved 11 lengthy and well-attended public meetings.

The Camden Planning Board voted 4 to 1, recommending the voters get the chance to vote on the proposed amendment.

In February, Camden’s Select Board voted 3 to 2 against putting the amendment before voters.

Later that month, and in a surprise move, Fox Hill Real Estate LLC withdrew its zoning amendment proposal; instead, the investors plsaid they would create an eight-bed community living facility. That eliminated the need for a zoning change, and, according to the project proponents, ”fulfills the requirements for a permitted, residential use for zoning purposes.”

Fox Hill invoked the federal Fair Housing Act and the state’s 1997 Maine Community Living statute, which had been repealed and rewritten to conform to the Fair Housing Act. In doing so, Fox Hill asserted it needed no zone change, and only requisite building permits from the town to continue making renovations to the Borden Cottage.

Levendusky, who is associate professor of psychology at Harvard Medical School and senior vice president for business development and marketing, is also director of the psychology department at McLean Hospital, and is responsible for getting the Camden program under way.

He said in December that the opening of McLean Borden Cottage — the official name of the Camden McLean Hospital program — will likely be in mid-February.

Fox Hill LLC is the business entity of 24 investors who hold ownership of the property. They are leasing the Fox Hill estate to McLean Hospital Corporation for the enterprise. While Fox Hill LLC is a for-profit venture, and will pay property taxes to the town, McLean will operate its McLean Borden Cottage as a nonprofit.

Fox Hill LLC has invested $1.5 million so into upgrading the facility, according to investors.

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