Cumberland man sues school district over fence removal

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CUMBERLAND — A Main Street property owner is suing School Administrative District 51 and the town for removing a fence between his property and Greely High School.

Michael Madore rents 299 Main St. through Mad Gold LLC, the plaintiff in the case. He claims a June 20 Planning Board decision, which approved a site plan amendment for the 303 Main St. school to allow a performing arts center to be built, did not allow the Cumberland-North Yarmouth school district to remove and relocate the fence.

If the decision did authorize the move, then it is “arbitrary and capricious, is unlawful, and is not supported” by any evidence, according to the complaint, which Madore’s attorney, Scott Anderson, filed Aug. 18 in Cumberland County Superior Court in Portland.

SAD 51 Superintendent Jeff Porter, along with Scott Poulin, who is the district’s director of finance, human resources and operations, and Town Manager Bill Shane argue that the June 20 decision did allow the fence to be moved.

The case could be heard this fall, Anderson said Monday. Although primarily a matter between SAD 51 and Madore, the town is a defendant because of Shane’s involvement and a Planning Board permit being at issue, the attorney explained.

Located on school property, the fence has been removed three times in the past 10 months and has not been put back since July 26. It was first installed in 2007 when an access road on the southern side of the Greely High campus was built, as mandated in a site plan review permit.

This year, SAD 51 went before the Planning Board for a site plan amendment to build the performing arts center.

“One of the things that had to be provided to the town (through the Planning Board process) was a traffic study,” Poulin said in an interview alongside Porter Monday.

The fence “on the south side of the driveway … interferes with the sight distance of vehicles leaving the High School,” according to a February traffic safety report included in SAD 51’s site plan amendment application. “The District has requested that this fence be moved to the south, farther from the school driveway, to improve the sight distance for exiting vehicles.”

The approximately 100-foot fence sat about 40 feet from Madore’s property and stood about 6 feet tall. SAD 51 sought to move it 38 feet closer to that boundary, in order to improve the sight distance.

The safety issue was aired at the Planning Board’s March 21 meeting on the PAC, but did not come up at the second meeting on the matter, held June 20. While the findings of fact read at the latter meeting state that “(t)here are no proposed changes to the buffering and landscaping currently provided,” Porter and Poulin said the statement referred to a lack of changes proposed since the March meeting, and that the fence move was part of their project as approved.

Madore, who lives on Mill Road, said in an interview Monday that he has been open to discussing reconfiguration of the fence, but that any changes should go through the Planning Board process.

Porter and Poulin maintain that the board has already approved the change.

Verbal agreement?

Madore, Poulin and Porter met on site in October 2016 to discuss the prospect of SAD 51 purchasing Madore’s property. Poulin mentioned the line-of-site issue and a desire to move the fence, and “we thought we had a verbal agreement with the owner to just take the fence down altogether,” he said.

Madore said he did not agree to it being removed, and that regardless of whatever the three men agreed upon, “we can’t make that decision together. It’s a Planning Board decision.”

Madore complained to the town after SAD 51 staff took down the fence the following day. The School Department was ordered by the town to replace it.

Town Planner Carla Nixon said in a November 2016 email to Madore, which he shared Monday, that if SAD 51 sought to have the fence moved, “(t)he Planning Board would look at the reasons for the request and consider information provided by the applicant and abutters prior to making a decision. Written notification of the meeting at which this amendment would be considered would be mailed to all abutting property owners.”

Madore received notification about the arts center meetings, but heard nothing about the fence being moved, he said. His property would not be affected by the arts center itself, he noted.

On July 10, Poulin emailed Madore to say that SAD 51 had requested that the town allow the district to move the fence within 2 feet of the property line, the lawsuit states.

The site line issue “is especially a problem for our buses and parent traffic,” Poulin wrote, according to the lawsuit. “We have had some very close calls with pedestrians at Main Street and vehicles.”

The lawsuit notes that Poulin did not mention SAD 51 had already received town approval to move the fence. Madore maintained his objection to the move, pointing to the 2007 permit.

The fence was placed where it was to keep vehicle lights from shining into the house’s windows, and moving it would defeat that purpose, Madore said.

The lawsuit says Madore expressed willingness “to discuss some modification of the location or configuration of the Fence to address any genuine public safety issue.”

Poulin told Madore in an email July 11 that the June 20 permit amendment allowed SAD 51 to relocate the fence, according to the lawsuit. When Poulin notified Town Planner Carla Nixon that the fence would be moved, she objected in an email copied to Madore, and said the amendment did not authorize any location change, and that the Planning Board, not town staff, could approve a relocation, the lawsuit states.

She offered the board’s Aug. 15 meeting as a time to discuss the matter, and warned Poulin not to remove the fence. Despite this, school staff removed the fence a second time, and Nixon ordered it reinstalled immediately in the same location, according to the lawsuit.

Town staff did the work, Shane said, since it would have been three or four days until SAD 51 staff could get to it.

Still, the section of the fence closest to Main Street did not go back up, the lawsuit claims, because it was “concluded that the last section impaired the site distances at the end of the School’s driveway.”

Poulin said Monday that the corner of the Feb. 28 visual plan SAD 51 submitted to the Planning Board showed the fence’s relocation to the property line.

Madore said he sent a list of alternative options for buffering to Poulin, but never heard back.

On July 20, Poulin told Nixon again via email that the June 20 permit allowed the fence’s move, and Nixon responded that the approved plan “does not clearly note the relocation of the fence,” and that a symbol meant to show the fence “is shown so close to the property line that it blends into that line,” the lawsuit states.

Shane then emailed both parties to state that he believed “the Planning Board approved this project with the new fence location,” and that SAD 51 did not need to go back to the board for a “do over,” according to the lawsuit.

The lawsuit notes that Shane “is not the Town staff person with jurisdiction or authority to interpret Planning Board decisions or render determinations or interpretations regarding Planning Board permits or local ordinance requirements.”

The movement of the fence “was on the approved plan,” Shane said in an interview Monday.

“What the school was asking was allowable,” he added. “The campus as a whole is a big site plan, so even though the performing arts center was under review, it’s an amendment to the entire site plan, which included the fence from a previous site plan, and included the performing arts center, which was part of the new site plan.”

“There were a lot of moving parts,” Shane continued. “And in fairness, I think that was part of the problem. Everybody was focused on the performing arts center, and then some of this other stuff, the focus might have not been as defined.”

Neither Nixon nor Planning Board Chairman Steve Moriarty could not be reached Monday for comment.

In response to Shane’s July 20 email, SAD 51 removed the fence a third time on July 26. 

Porter said he offered to move the fence 30 feet toward the house, and not 38 feet, as an attempt at a compromise, but Madore responded that such an arrangement would not work, and he was taking the matter to court.

“We were trying to be a good neighbor, reaching out to the property owner and saying … ‘let’s see what we can do,'” Poulin said.

“At this point we’re kind of at an impasse, and unfortunately we’ve got to go to litigation,” Porter said. “And this is public land, so taxpayer dollars are paying for this litigation.”

“To protect property that the district owns,” Poulin added.

School staff took the fence down in order to move it, and fix any components as needed, he said, noting that “our intent was to put it back where the Planning Board had approved it; it was never the intent to take it down to get somebody stirred up.”

Madore reiterated that with two children attending Greely Middle School and eventually the high school, traffic safety issues are important to him.

“We are fine going to the Planning Board,” he said. “… We just need to go through the process.”

Alex Lear can be reached at 781-3661 ext. 113 or Follow him on Twitter: @learics.

Michael Madore, who co-owns 299 Main St. in Cumberland, is suing School Administrative District 51 and the town over the removal of a buffer fence between his property and Greely High School. He is standing on the fence’s footprint, with the school behind him.

This Google image shows the fence at 299 Main St. in Cumberland before was removed.

A Maine native and Colby College graduate, Alex has been covering coastal communities since 2001, and currently handles Bath, Topsham, Cumberland, and North Yarmouth. He and his wife, Lauren, live in the Portland area, and Alex recently released his third album of original music.