Harpswell water tower on schedule for demolition

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HARPSWELL — The Mitchell Field water tower was on schedule to be torn down Thursday after an appeal filed by the lawyer for Friends of Mitchell Field remained unanswered by the Maine Supreme Court.

Attorney Chris Neagle, who represents Friends of Mitchell Field, filed two motions Sept. 17, one for a preliminary injunction and the other for a temporary restraining order, which could have prevented the town from demolishing the tower Sept. 20.

The appeal came after Superior Court Justice Andrew M. Horton ruled earlier this month that the tower could come down, in response to a lawsuit filed by the Friends’ group July 25.

The town signed a demolition contract with Michigan-based Iseler Demolition July 26. But Horton temporarily halted the work last month until after he could hear arguments. 

Neagle filed the temporary restraining order in an attempt to prevent the tower from being demolished Sept. 20, until the newest preliminary injunction could be decided on by the Law Court. 

In the original suit, the Friends argued the Board of Selectmen unreasonably rejected their 351-signature petition in May for a re-vote on whether the tower should be demolished. Town Meeting approved the tower’s demolition in March.

Horton found, however, the board’s rejection was not unreasonable. He wrote that the group’s petition dealt with “essentially the same question” that had already been decided at Town Meeting.

In his appeal, Neagle wrote the Maine statute “at the heart” of Horton’s decision is “unconstitutional” and the Superior Court’s interpretation of two laws “relied on” by the Friends group in the case was also unconstitutional.

Neagle said the Superior Court made two “significant errors when interpreting Maine law that fly in the face of the constitutional right to petition the government.”

He cited two articles from the U.S. Constitution. The first states “Congress shall make no law … prohibiting … the right of the people … to petition the government for a redress of grievances.”

The second article Neagle cited states, “the people have a right at all times … to request, of either party of the government by petition …, redress of their wrongs and grievances.”

Neagle argued the Maine law cited by the Superior Court in its finding, which states voters can only exercise their right of petition when a Board “unreasonably refuses” to hold a Town Meeting is, itself, unconstitutional.

Neagle also argued the Superior Court made a “legal error” when it “relied on (Town Attorney Amy Tchao’s) advice “that the Friends’ petition asked the same question that was asked at Town Meeting.

He said there are “significant differences” between the two questions, as the citizen’s petition described possible cellular use for the tower, while the Town Meeting article did not, in addition to other differences.

Neagle also took issue with the Superior Court’s ruling regarding Friends of Mitchell Field’s attempt to call an unsanctioned Town Meeting.

The Superior Court ruled it was invalid because the group petitioned the notary public using the same petition it sent to the Board of Selectmen, instead of a new petition.

Neagle argued a requirement for citizens to create a new petition for the same issue would impose an unreasonable restriction on their right to petition the government.

Tchao said after the appeal was filed, the Law Court issued an order giving the town until 10 a.m. Sept. 19 to file a written response to Friend of Mitchell Field’s motion for a temporary restraining order.

According to Tchao, the town submitted the response Tuesday before 2 p.m. and had expected to hear back from the Law Court on Wednesday. 

Tchao said Sept. 19 the demolition was scheduled to be completed in one day, and that a crane was scheduled to arrive at the site early Thursday morning.

Without a court decision Wednesday afternoon, she said the town was in “uncharted territory,” but made its timeline clear to the Law Court in its written response.

“Materials and equipment were being delivered to the site today, in the area so they can hit the ground running tomorrow morning first thing,” she said.

If the court filings had caused a delay, she said, the Town was prepared to recover the damages to the contractor and the town from Friends of Mitchell Field.

Tchao also said the contract is set to expire Sept. 24, and the contractor has told Town Administrator Kristi Eiane that Thursday was “the only window of time” he had to complete the project for the foreseeable future.

“We made clear to the court what the timeline was for getting this done,” she said.

Elizabeth Clemente can be reached at 781-3661 ext. 100 or eclemente@theforecaster.net. Follow Elizabeth on Twitter @epclemente

The Mitchell Field water tower was expected to be torn down Sept. 20, after an appeal filed by Friends of Mitchell Field remained unanswered by the Law Court early Thursday morning.

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