2017-02-09 / Front Page

River Bend Farm lawsuit proceeds

By Anthony Aloisio
Contributing Writer


Bryan Matluk, left, is development director for The Ecology School. Drew Dumsch, right, is the school's executive director. The pair stand in an open area upon which the farm conservation easement allows buildings. Dumsch said that construction designs are too preliminary to say where the planned buildings – two residence halls and a dining hall – would be located. (Anthony Aloisio photo) Bryan Matluk, left, is development director for The Ecology School. Drew Dumsch, right, is the school's executive director. The pair stand in an open area upon which the farm conservation easement allows buildings. Dumsch said that construction designs are too preliminary to say where the planned buildings – two residence halls and a dining hall – would be located. (Anthony Aloisio photo) SACO – A lawsuit filed last year over planned development on River Bend Farm has proceeded to a court hearing on a motion for judgment on the key legal matter.

The suit, which was filed in April last year by owner Thomas Merrill, concerns the farm property at 184 Simpson Road, formerly owned by the late Mary Merrill. The farm is now owned primarily by Thomas Merrill and his wife by virtue of a bequest from Mary Merrill – Thomas Merrill’s aunt – when she died in 2005. However, before that bequest, in 1998, Mary Merrill granted a conservation easement on most of the property to Saco Valley Land Trust. The conservation easement means, among other things, that the trust has the right to prohibit commercial development on the farm.


A view of Simpson Road neighbors from the residential area of River Bend Farm, where the conservation easement allows construction. Construction in the area, which is about 9 acres in size, is allowed under the easement so long as it is in accordance with the city's land use laws and has similar architecture as existing structures. In a lawsuit by the farm's current owner, Thomas Merrill, against the holder of the conservation easement, Saco Valley Land Trust, one legal issue to be decided is whether "local land use laws" means the local laws that were in effect when the easement was granted in 1998, or whether it means laws currently in effect as determined by the city council. (Anthony Aloisio photo) A view of Simpson Road neighbors from the residential area of River Bend Farm, where the conservation easement allows construction. Construction in the area, which is about 9 acres in size, is allowed under the easement so long as it is in accordance with the city's land use laws and has similar architecture as existing structures. In a lawsuit by the farm's current owner, Thomas Merrill, against the holder of the conservation easement, Saco Valley Land Trust, one legal issue to be decided is whether "local land use laws" means the local laws that were in effect when the easement was granted in 1998, or whether it means laws currently in effect as determined by the city council. (Anthony Aloisio photo) The Saco Valley Land Trust has existed for about three decades, according to board member Susan Littlefield, whose home neighbors River Bend Farm on Simpson Road.

“Originally a group got together to fight a huge proposed development off Ferry (Road),” Littlefield wrote in an email. “After that some of those folks, and others, decided to incorporate as a 501(c)(3) land trust in 1987- 88 to accept land and/or easement donations. We hold, now, seven easements and 25 in-fee properties in Biddeford, Saco and Buxton – over 1,100 acres.”

Littlefield said that the trust is operated by volunteers.

“Our main focus of in-fee acquisition has been habitat and water quality protection, but most of our easements were created to protect, at least in part, agricultural land,” she wrote.

When The Ecology School, a Saco nonprofit conservation school currently based at Ferry Beach, approached Merrill and the Saco Valley Land Trust about developing the farm into a new site for the school, Merrill was on board but the trust ultimately rejected the plan as not in accordance with the conservation easement, according to the parties’ filings in Alfred Superior court.

Merrill’s summary judgment argument and the land trust’s opposition argument were filed Aug. 23 and Sept. 21, respectively.

After the school got a necessary contract zone agreement approved by Saco Council – against the public resistance of members of the trust’s board – Thomas Merrill filed a lawsuit seeking to end the dispute in court.

“We’ve said (to the trust) all along, ‘If we can’t get your comfort on this point and resolve your concern, then the only way that I know of to do that is to take it to court and let a judge decide,’” Merrill told the Courier. “As much as everybody hates lawsuits, it is a fairly peaceful, amicable way to try to resolve a disagreement on a legal matter.”

Merrill’s lawsuit primarily seeks a declaration that the school’s proposed use of the property is not a “commercial use” in any way that would violate the conservation easement, according to Merrill. Among other alternative arguments, however, Merrill’s legal complaint asks the court to find that three Saco Valley Land Trust board members – Nicol Tifft, Debra Hilton and Susan Littlefield – have “unresolvable conflicts of interest” in administering the conservation easement as trust officers because they are neighbors to the farm and would be personally affected by the development.

“Maine courts have repeatedly found that a use is ‘commercial’ only if profit is the chief aim of the activity in question,” read Merrill’s argument in his motion for partial summary judgment. Both Merrill and the trust are represented by legal counsel.

That argument centers around the fact that The Ecology School is a nonprofit. The trust hasn’t denied that the school is a nonprofit, but argued that its activity is nonetheless “commercial” within the intent of Mary Merrill.

“Although the Ecology School is a nonprofit organization for tax purposes, the school does require students to pay tuition, room and board and other expenses, which is commercial activity,” read the trust’s argument in its opposition to the motion.

Saco Valley Land Trust’s basic appeal was to Mary Merrill’s overarching intent for the farm, rather than to the language of the conservation easement.

“Her intent was for River Bend Farm to be maintained by future owners as she had always maintained it, which was as a farm,” the argument read.

Drew Dumsch, executive director of The Ecology School, said that farming will be part of the school’s curriculum. He also said that the conservation easement was one of the primary reasons he wanted the farm for developing the school.

Dumsch said that the school had been looking for land to which the school could move for a few years before Merrill put the farm up for sale. The school currently operates from the campus of the Ferry Beach Park Association, where they pay rent and only have access to the facility for part of the year. That location rents the campus to other organizations – including summer camps and churches, according to Dumsch – for other parts of the year.

“The challenge has been, we don’t have use of that campus on weekends, or in the summer,” Dumsch said. “Also, Ferry Beach is under new leadership, and they’re looking to head in a different direction.”

“And also, the Ferry Beach buildings are great, but we would love top-of-the-line green buildings,” Dumsch added.

He said they were fortunate to find River Bend Farm.

“We knew we wanted to stay in southern Maine. We were looking for property of about 100 acres or greater, with a mixture of ecosystems and farmland,” Dumsch said.

The whole farm has about 105 acres of land, according to the easement.

“We’ve got the river, there’s two ponds, a mixture of forests,” Dumsch said. “There’s actually seven or eight distinct forest ecosystems on the property that we could study.”

According to Merrill, his aunt grew hay on the farm and raised horses. The property also has trails for riding and walking through the forest area.

“After several years of looking, and doing research, and listening to some land trusts, and property consultants, there’s nothing remotely like this,” Dumsch said.

Dumsch expressed high hopes for the school’s performance with full ownership of property that can be used year-round. The school operates by hosting multi-day programs for schools that travel to the area.

“Let’s say the sixth graders from Poland, Maine come down for a three-day program,” Dumsch explained. “They’re coming with their classroom teachers, often with their principal, and parent chaperones. It becomes not only a rigorous science experience for them to learn, it becomes a community building event.”

The Ecology School also works with the local schools, according to Dumsch.

“We do work with schools from Massachusetts and New Hampshire and Vermont, but really a prime focus of our conservation education, the reason we really thrive and do great work, is our local work, with Saco and Biddeford,” Dumsch said. “We’re working right now with those school districts to create a kindergarten through eighth grade continuum.”

However, Dumsch anticipated that the development would nonetheless see resistance from the community, as was revealed by an email that Simpson Road neighbors – as the citizens’ group “Friends for the Conservation of River Bend Farm” – acquired through Maine’s Freedom of Access Act from Saco city staff.

“We’re working right now with those school districts to create a kindergarten through eighth grade continuum.”

In the email exchange between Dumsch and Economic Development Director Bill Mann, Dumsch expressed concern that putting emphasis on economic potential of the school “might be viewed by those on Simpson Road who currently oppose this project as proof positive that this project’s way too big . . . and will negatively impact the Saco community.”

“How best can we help them understand that any negative impact (change from the status quo) will be more than outweighed by the positive community benefits(?)” Dumsch wrote.

The Simpson Road neighbors did show up to oppose the development, during the city’s process for the contract zone agreement that the Ecology School proposed. The agreement was necessary because the city’s zoning in that area did not otherwise allow for a school to be developed. The neighbors spoke to the council at the Jan. 4 public hearing on the agreement.

“Mary (Merrill) herself gave us two easements on Simpson Road that would be protected from development and like hers, be forever farms, or so we thought,” said Nicol Tifft, also a board member of the trust, who lived on Rocky Hill Road. “I must state that there is unanimous agreement by the members of the land trust that this was Mary’s intent. That when she stated there should be no commercial activity other than farming or forestry, that is what she meant.”

“As a teacher myself, I fully the mission and programs of the ecology school,” said Inga Browne, a Simpson Road neighbor and teacher at Thornton Academy. “Their environmental education is extremely timely and will only become more important as time goes on. However, I strongly feel the placement of the school on the property with the special and unique conservation easement is truly very alarming.”

The resulting contact zone agreement, as amended by the council, provided that “The Property shall contain no more than two dormitories of up to nine thousand square feet of floor Area and no more than a 4,500 square foot Footprint each and height no more than thirty-five feet from the highest point of the property and up to three stories in size which will be used to house up to 120 students.” It also allows for a dining hall of no more than 7,000 square feet in floor space, and “accessory buildings as may be needed to support the school’s mission, subject to the site plan review by the planning board.”

Dumsch was confident that the buildings the school designs will not be imposing in the neighborhood.

“It’s very preliminary, but, people won’t see anything from the road,” he said.

“Our goal would be to be smaller if we can,” Dumsch added later. “Both from an energyefficiency and cost perspective, and impact, you make them to the appropriate size.”

York County Superior Court in Alfred heard arguments Jan. 12 from Merrill and from the trust, and will likely make a decision in coming months. That decision has the potential to either end the lawsuit in favor of Merrill and the school, or proceed on toward trial.

“The entire Merrill family supports the school at River Bend Farm,” Merrill said. “We think that the school’s use of the farm to teach ecology, conservation, and sustainable farming is entirely consistent with the easement, and something my aunt would have embraced enthusiastically.”

The Saco Valley Land Trust declined to comment in depth on the suit, citing a policy against commenting on pending litigation.

“Our goal is to protect these properties in perpetuity, as intended by the grantors of the easements,” the trust board wrote in a short statement from its attorney, “and vigorously defend any legal challenges to the easement.”

FMI

The Merrill family has raised horses and grown hay on River Bend Farm in Saco since the 1950s. Much of the farm is covered by the Saco River Corridor Act, which means buildings are restricted within 500 feet of the river. In addition, the farm contains about eight different ecosystems, including ponds, the riverbank, and forest ecosystems.

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