FALMOUTH — By casting the deciding vote to reduce open-space requirements for new developments, a town councilor with a subdivision currently under review may have opened the town’s zoning regulations to a legal challenge.
Councilor and real estate developer Fred Chase introduced the change last year. Chase and his son David own significant amounts of land in town, and Fred Chase has a four-lot subdivision on Brookfield Road before the Planning Board.
Municipal attorney David Lourie, who recently was the attorney for the city of Portland, said it is conceivable that another property owner or conservation group could challenge the town’s new ordinance because of Chase’s apparent conflict of interest.
That could create risks for developers who proceed under the new rules. If the changes are determined to be invalid, pending or in-progress developments could be shut down.
“Any other developer would have standing to challenge this,” Lourie said. “(Other developers) may need to clear the issue in order to sell their lots.”
The council voted 4-3 on Jan. 24 to loosen regulations requiring developers set aside 50 percent of a lot’s buildable area for open space. The changes require setting aside only 30 percent of the buildable area.
Few people attended the council meeting, and the only comments were against the change. Both the Long Range Planning Advisory Committee and the Conservation Commission opposed the revision, and the Planning Board also voted against the change.
Chase defended his position on Monday.
“About a year or so ago, I made it clear I was working on a subdivision off of Brookfield Road. I also made it clear that I was elected by land owners, that finally someone was going to represent land owners,” he said. “I think the important thing is, I don’t have any secrets.”
Chase submitted his subdivision to the Planning Board before the council voted on the ordinance change and suggested during the Jan. 24 meeting that his development would still have to meet the stricter requirements of the old ordinance.
Some councilors were still concerned and Councilor Bonny Rodden moved to table the issue until the council could meet with the town attorney to determine whether Chase had a conflict of interest. That motion failed, 4-3, with Chase also the determining vote.
Chase, Council Chairman Tony Payne and Town Manager Nathan Poore met with attorney William Plouffe on Jan. 31. Plouffe issued a memo stating that the subdivision would be subject to the new rules, not the old ones, and that “this is a problem under the conflict of interest laws, notwithstanding that Councilor Chase was under the misimpression that his application would not be affected by the amendment.”
At Monday’s council meeting, Plouffe’s colleague Richard Spencer said Maine law is fairly silent on conflicts of interest when councilors are acting as a legislative bodies making laws. Spencer said that while the council’s action could now be considered “voidable,” it is unlikely the new ordinance could be successfully challenged.
“I don’t think we could find a Superior Court judge that would invalidate that (ordinance),” he said. “Anyone who’s been in town a while knows Fred is a developer. If they’re not happy with the way he conducts himself, they could vote him out.”
Any councilor who voted in favor of the ordinance change Jan. 24 could have moved Monday night to reconsider the decision, giving Chase the opportunity to recuse himself from a new vote.
But Payne, Chase and Councilors Will Armitage and Faith Varney remained silent.
Chase has said in the past that he will not reapply for the additional fifth lot now allowed in his pending development.
“I have no ulterior motives,” he said.
Chase said during Monday’s meeting that the only reason he was accused of having a conflict of interest was because people did not like the changes he proposed to the ordinance.
“If anyone dares remove restrictions, that’s when the trouble starts, that’s when people start hollering conflict of interest,” he said. “That’s what these people do.”
Outside of the meeting, Chase confirmed information from the town’s assessment roll that shows he and his wife, Diana, own nearly 85 acres of land in Falmouth, including the approximately 23 acres on Brookfield Road. The properties and buildings are valued at just over $1.1 million.
David Chase and his wife, Anne, own 71 acres, valued at nearly $1.9 million. Other members of Chase’s family, including his brother and grandson, own just under five acres worth nearly $700,000.
Most of the family’s properties are undeveloped.
Chase also owns a six-acre parcel on Blackstrap Road under the Philip Chase Trust, on which he recently planted blueberries.
While Councilors Cathy Breen and Bonny Rodden voted against the ordinance change, both said they are comfortable that Chase has done what was necessary to avoid a conflict of interest under state law.
However, that did not change their disappointment that the environmental regulations had been rolled back.
“What has happened to conservation zoning is extremely disappointing,” Rodden said. “The fact that the council would partially dismantle (the ordinance) with so little investigation is disgraceful.”
Emily Parkhurst can be reached at 781-3661 ext. 125 or firstname.lastname@example.org