A letter signed by former Mayor Don Esty is at the center of a dispute between the city and developer Tim Flannery over the use of one of the largest public parking lots in Westbrook.

The letter promised Flannery the use of nearly half of the so-called “CVS” lot between Main Street and William Clarke Drive. But the letter was never brought to the City Council for approval. Councilors only recently became aware of the existence of the letter when it came up in an executive session.

The city released the letter for the first time publicly this week, in response to a Freedom of Information Act request from the American Journal.

The city is now investigating whether the document, which promised 90 spaces to Flannery, is legally enforceable. The city sent the letter to Flannery on Dec. 3, 2002 – days before the city announced that Flannery had reached a deal with Disability RMS to bring them to Westbrook.

In the letter, Esty said he was responding to a request by Disability RMS for the city to provide a list of what it would provide to the new office building. The last item on the list discusses the extra parking spaces.

“The city will reserve up to 90 spaces of parking in the so-called ‘CVS’ lot for use by the company,” Esty wrote.

The letter was not discussed publicly at the time, and the extra spaces in the parking lot are not addressed in a lease agreement between Flannery and the city that was signed on June 19, 2003.

That agreement gives Flannery the use of 400 spaces in the municipal parking garage rent-free for the first two years of the 10-year agreement. In addition, the agreement gives Flannery the option to lease the remaining spaces in the garage. To date, the city administration said Flannery has exercised his option to lease an additional 40 spaces. Flannery is being charged $27 per month for each of those additional spaces.

Neither Flannery nor Disability RMS is actively seeking the spaces in the CVS lot now, City Administrator Jerre Bryant said. However, he said the existence of the agreement regarding the spaces has been brought to the City Council’s attention as Flannery seeks to sell the office building.

Flannery said the extra 90 spaces would be required to meet the parking needs of the office building if it were to be fully occupied. Flannery said he did not wish to comment on the matter, except to say that he is still looking to sell the building, and the agreement for the additional parking is a factor in the sale.

“They’re just part of the agreement I had (with the city),” said Flannery.

Andrew Bernstein, vice president and general counsel for Disability RMS, said the company felt the agreement between Flannery and the city was valid. “We certainly support our landlord’s position that those spaces are available and reserved for parking by Disability RMS if needed,” he said. “We’re just waiting and hoping that this gets resolved. We have a good working relationship with the city and Tim Flannery.”

Bryant said he was not sure why this letter committing the spaces to Flannery was not brought before council at the time it was written. “It only recently was brought to the council’s attention in the context of the possible sale of the office building,” he said.

Bryant said this was the first time councilors were made aware of the agreement. The council was not given a copy of the letter at the time it was written. “This document did not go to council,” he said.

When they were informed of the existence of this letter, councilors questioned whether the agreement was legally binding because it was done without City Council approval. “The council never saw this letter until just about a month ago,” Councilor Brendan Rielly said. “Obviously, we have people looking into the letter to see if it is enforceable.”

City Attorney Bill Dale said, in his opinion, Esty did not have the authority to commit city property to a lease without a vote from the City Council. “I don’t think the letter is enforceable,” Dale said.

Mayor Bruce Chuluda, who was serving on the City Council at the time the letter was written, said he agreed with Dale’s opinion that the letter was non-binding. “We’re working in a way to deal with the situation,” Chuluda said. “We don’t think the letter has any legal standing.”

Councilor John O’Hara said the existence of the agreement took him by surprise. “I had no idea,” O’Hara said. “When the administration brought that forward, I was amazed.”

If the city were bound by the agreement, O’Hara said it would present a major parking problem. “That document could be a nail in the coffin on trying to make sure we have enough parking downtown,” O’Hara said. “For the previous mayor to enter into an agreement without council knowledge was disastrous. It would put us in a tremendous bind with current and future spaces in downtown Westbrook. Our hands will certainly be tied if the document turns out to be binding.”

While it is unclear if the agreement is binding, Bryant said that if Flannery were to secure the spaces in the lot, he would be paying rent on them. “These will not be free spaces,” he said.

For his part, Esty said that as a matter of course, the letter would have been reviewed by the city’s legal staff as well as Matt Eddy, the economic and community development director at the time, and Bryant. Esty said the city staff “all would have reviewed the letter and approved it as well.”

Eddy had not returned calls seeking comment at press time. Bryant said that while he saw the letter when it was sent out, he did not formally approve it. “I was copied on the letter, but it was nothing I gave approval to,” he said.

Rick Sullivan, former city attorney, said he did not recall the specifics of the agreement. Sullivan added that Michael Cooper, the city solicitor, would have handled most of the work on development issues. Cooper did not return calls seeking comment for this story.

Esty said he did not recall why the letter was not brought to the City Council’s attention. “I can’t speak to that,” he said. “But it would have been a much lower priority because they were all concentrating on the parking garage.”

Esty also contended that the city’s staff would have kept the City Council informed about the project through regular updates. “I would have expected that in those presentations (the agreement covering the 90 spaces) would have come up,” Esty said. “But I can’t say that it did because that was two years ago.”

Bryant said he did not recall updating the council at the time in regard to the letter or the agreement promising the additional spaces to Flannery. “I have no recollection of providing that information to them,” he said.

Esty said he believed that the promise of the extra parking spaces in the city parking lot was one of the deciding factors that helped seal the deal to bring Disability RMS to the city. “Everyone wanted to find a way that is reasonable to make this work,” Esty said.

While the issue of whether the agreement is legally binding is still unsettled, there is still a concern about the availability of parking downtown. Bryant said that there is currently 1,228 parking spaces downtown. The municipal lot behind CVS has 186 spaces. Twenty-five of those spaces are already allocated to CVS, leaving 161 available spaces in the lot.

If 90 spaces in the municipal lot were set aside for exclusive use of One Riverfront Plaza tenants, it could create a parking problem down the road as more development comes into downtown.

Ed Symbol, who owns Full Court Press and Rookies on Main Street, said he believed parking downtown is becoming an issue. He said that he does not fault Flannery for seeking the additional spaces for his tenants, especially if the mayor promised him those spaces.

“I don’t have an issue with Tim getting (the parking spaces),” said Symbol. “I have an issue with the city promising him the spots.”

Even if the letter is not legally binding, Symbol said he felt the city would have a hard time backing out of the deal. “If the city promised Tim those 90 spots then they can’t go back out on their deal,” Symbol said. “But I don’t think the city should have promised him those spots.”

O’Hara said downtown Westbrook is on the cusp of a parking crisis. While at current levels of development, there is enough parking, any future development threatens to push the city over the edge, O’Hara said. “Clearly, we have to look elsewhere for surface level parking.” One solution that O’Hara opposes is the construction of a second parking garage. “I think that would cost this community dearly,” O’Hara said.

Bryant said that if One Riverfront Plaza were to be filled to capacity along with the Dana Warp Mill and the former Sebago building currently being renovated on William Clarke Drive, the city would certainly have to find more parking. “If the full potential tenancy of One Riverfront Plaza, the Dana Warp Mill and the former Sebago building were realized, there would clearly be a parking problem on that side of the river,” Bryant said.

Councilor Jim Violette said the city is doing what it can to address the parking issue. “The administration is working extremely hard to find parking to meet current needs,” he said.

Bryant said one of the problems is that a vast majority of parking in downtown Westbrook is publicly owned. “This issue is going to be a constant challenge as downtown redevelopment occurs,” Bryant said.

Esty said that while parking remains an issue, the fact that jobs are coming into Westbrook should help ease the sting of the potentially tight parking situation. “For years we had no parking issues,” Esty said. “There was plenty of parking because there was nobody downtown.”

For now, Bernstein said the city’s parking garage is satisfying Disability RMS’s current parking needs. However, he said he envisions a day when the company will outgrow the garage and require additional parking. “We came to this building with a great anticipation of growth,” he said. “And we fully expect to keep growing.”

Esty at Core press conferenceFormer Mayor Don Esty announces, at a press conference in 2002, a deal to bring Disability RMS to Westbrook.Representatives of Disability RMS announce their intention to move to Westbrook at a press conference in 2002.

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