SACO — The Saco City Council has ruled that the city was justified when it turned off the power at a property the Saco School department leased with the intention of using the facility as a Pre-K school.

On July 30, the city shut off the electricity to 5 Willey Road a former Toddle Inn daycare facility that the school department began leasing on July 1 with the intention of using it for a Pre-K school.

Though the school department entered a 10-year lease for the building, it is holding Pre-K classes elsewhere in the city this year under a one-year plan. City officials ordered the school department out of the building, as city officials say that covenants for the Spring Hill business park, where the 5 Willey Road facility is located, prevent the use of a public school.

The school department appealed the city’s decision to turn off power at 5 Willey Road, and after hearing the appeal at its Monday night meeting, the City Council voted 6 -0 to uphold the city’s decision. Councilor Micah Smart recused himself from the appeal process and vote, as the law firm he works for represents clients who are involved in litigation with Toddel Inn daycare company, which owns 5 Willey Road.

The city concludes that the shutting off of power tot he building was justified, as there were safety concerns.

City Electrical Inspector Marcel Desrosiers stated in an affidavit that when he discovered that 5 Willey Road had not been inspected since 2005, it raised concerns. After further research, he learned that here had never been an electrical inspection or permits issued for the pool and pool house building at the property, and when the former Toddle Inn building was converted from natural gas to propane, no electrical inspection of the heating or cooling equipment took place.

City Attorney Tim Murphy said Monday night that the city sent a report to Central Maine Power, which found turning off the electricity justified, and when the owner of the building filed an appeal to the PUC, the PUC sided with the city and CMP.

“All three of those parties conclude, yep, you know what, there are some risks there at Toddle Inn. This was the right thing to do. Power it down,” he said.

Murphy said that Desrosiers was “forward thinking” in his assessment, as he discovered after walking on the grounds of the property on Aug. 8 a main power line located near the playground in a thin plastic tube, that was potentially life threatening. Murphy said to their credit, the building owner has since corrected the issue.

“We’re here to protect our citizens, and if we acted a little heavy handed well I’m not shedding any tears about it folks, because we did the right thing,” said Murphy.

School attorney Adrianne Fouts said the city was not justified in turning the electricity off at the 5 Willey Road building as a safety matter, as the building was not occupied on July 30. The city was aware that the school department’s intended use for the building was not “full steam ahead” as the city had announced the week before that it had sought alternative locations for the Pre-K program, she said.

“Needless to say, I think it came as quite a surprise when the de-powering occurred six days later,” said Fouts.

Fouts said that even if the turning off of the electricity was justified, the city would be required to give a 30-day notice, and instead gave them just 11 days. Fouts said the city knew of the lease for three months, yet did not notify the school of any safety concerns and letters sent to Toddle Inn and the School Department were “silent” as to any health and safety concerns.

Murphy said that the closure was justified because, even though there may not have been students in the building, it was occupied.

“In my world, that’s a lease, that’s occupancy. Sure as heck Toddle Inn thinks its occupancy, they’re taking a check for it, a pretty good check each month,” said Murphy.

Councilor Marshall Archer pushed further the question of occupancy, and Murphy confirmed that the school had items in the building when it was asked to leave the building by the city on July 19.

“In effect they were using it at the least as a storage unit, a very expensive storage unit,” said Archer. “Wouldn’t that be considered use?”

Archer asked the school department if there was any staff at the building, and Superintendent of Schools Dominic DePatsy said there was a staff person who had an office in the building, but she “went remote” when the school department received the July 19 letter from the city.

“Now that we’re hearing that there was actually a person in there, your argument is flat,” said Councilor Lynn Copeland.

She said she believed the building was unsafe and the city acted correctly.

“I’m proud we did the right thing,” said Copeland.

Fouts said CMP, “simply accepted” the report from the city that there was a safety issue, and the PUC did the same.

“I think it’s being overstated what the significance of CMP and the PUC blessing this decision really is,” said Fouts.

Fouts questioned that if there was a concern “of this extreme nature,” why was the city’s first step to call the power company, and not notify the people who were wishing to use the property and warn them about the safety concerns.

“When you look at the facts, it’s quite evident that this was a pretext to interfere with the lease agreement,” she said.

Fouts said a letter sent by the city in June was addressed only to the owner of the building was not considered a letter asking the school department to take action.

Murphy said a letter in June stating that the Pre-K was not an accepted use was addressed to the owner because the city was not aware of the school department moving any items in the building yet. However, he said the letter was copied to school officials so that the superintendent and the school attorney would be “on notice.”

The school department is still bound by legal contract to the $24,000 a month lease for the Toddle Inn building.

The school department has also filed an appeal challenging the city’s decision that use of a public school is not allowed in the Spring Hill business park and also challenging the city’s belief that the school’s proposed use needs review by the planning board and a certificate of occupancy by the city.

This appeal will be heard at the Zoning Board of Appeals at 6:30 p.m. on Monday at the conference room at Saco City Hall.

— Staff Writer Liz Gotthelf can be contacted at 780-9015 or egotthelf@journaltribune.com.

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