GORHAM – A proposal asking the town of Gorham to amend a lot size in a subdivision created four decades ago has ignited a bitter neighborhood dispute.
Travis Caruso is asking the Planning Board for approval to reduce his property at 53 Phinney St., at the corner of Phinney Street and Phinney Street Extension, from 4.63 to 1.38 acres. The remaining land would be joined to a large, adjacent, Caruso family-owned parcel behind the lot. The land is in Fort Hill Estates, a secluded development off Route 114.
Caruso said the reason he’s asking the town for the reduction is to build a 700-foot driveway through the lot to serve a new home he wants to construct on part of the larger parcel, owned by C & C Family, LLC, which is also listed in town tax records as owner of the lot and house at 53 Phinney St.
Frontage for a new Caruso home could be on Phinney Street Extension rather than constructing a driveway 3,000 feet in from Route 114.
“What we’re proposing is pretty straightforward as far as the town is concerned,” Caruso said Tuesday.
The Caruso proposal has drawn a barrage of opposition. Several neighbors, who have hired lawyers, fear town approval to shrink Caruso’s lot size is a prelude to a large-scale development. Several opponents claim deeds of parcels in the development prohibit further subdividing. And one couple has filed a lawsuit, challenging the legality of the town seizing a neighborhood road 10 years ago. More lawsuits could be pending, as a multitude of lawyers are involved.
“I fear that something doesn’t smell quite right in the nearby farmland abutting my Phinney Street property, and I’m not referring to the manure. That’s an odor that I’ve learned to live with since moving to Gorham in 2004. This new odor is unfamiliar and not one I’m so sure I can adjust to,” said Bernard Broder, of 49 Phinney St.
Allowing time for a town lawyer to further review legal material, the Gorham Planning Board Monday tabled Caruso’s request.
“This will be tabled to a future date,” Edward Zelmanow, chairman of the Planning Board, said following a 5-0 vote (Christopher Hickey and Andrew McCullough were absent).
Broder was satisfied with the Planning Board’s decision.
“I am pleased that the Gorham Planning Board has tabled this application pending a more studied review of the many legal issues involved,” said Broder, who is a lawyer. “I believe proceeding otherwise would have been nothing short of reckless.”
Caruso’s request was first scheduled for Planning Board review on April 2, but continued to April 23 and then to May 7. A site walk May 2 drew a crowd of 24 neighbors and other interested parties, along with Travis and Ann Caruso and their engineer, Andy Morrell of BH2M Engineers; Planning Board members Melinda Shain, Thomas Hughes and Zelmanow; and Town Planner Tom Poirier and Barbara Skinner of the planning staff.
Zelmanow and Shain are also lawyers.
According to town site walk notes, Poirier and Zelmanow “advised the group that the board is considering only the application for approval of a lot line split” and not the legality of Phinney Street Extension or the impact of a lawsuit.
On April 11, attorneys Rob Crawford and Theodore A. Small of the Bernstein Shur law firm filed a lawsuit for Patrick and Susan Smith of 68 Phinney St. in Cumberland County Superior Court and named the town of Gorham as defendant. The suit seeks to void action by the town in 2002 that seized by eminent domain a portion of Phinney Street Extension that was on the Smiths’ property.
The lawsuit claims the town’s taking was not “justified by any highway purposes” and the taking didn’t comply with required procedures.
If the Smiths prevail in their suit, then they would get the land back and there would be no public road frontage for Caruso’s division of his lot.
Town Manager David Cole said Wednesday he didn’t believe a response to the lawsuit had been filed yet.
Referring to the town taking Phinney Street Extension, Caruso said 10 years had gone by. Now that someone wants to use it, “this whole hornets nest has come up,” Caruso said.
“Good intentions yielding bad results dating back to at least 2002, now coming back to haunt my neighborhood’s psyche and the taxpayers’wallets,” Broder said Wednesday.
Last week, Broder addressed the Town Council and said litigation would be expensive.
“You’ve got a mess to clean up. You’ve got a lot of people on Phinney Street who are unhappy,” Broder told councilors.
Citing other legal matters, many opponents of Caruso’s proposal claim lots cannot be split. In Monday’s meeting, Robert Hark, a lawyer representing Don and Jane Millett, 33 Phinney St., cited deed restrictions and said the lot should not be subdivided.
Broder said Wednesday, “C&C Family, LLC purchased the Fort Hill Estates property knowing that it was subject to a restrictive deed precluding further subdivision. It’s the second such property that Caruso family members have purchased in this subdivision.”
But, the Planning Board’s attorney previously had determined that the town can’t enforce deed restrictions that were not created as part of any town requirement and that enforcement would require civil action.
Zelmanow said the board is just being asked to amend where the lot line is located.
“We have to make our decision based on what we see before us,” Zelmanow said, citing the town’s land use and development code.
Neighbors are wary about a change disrupting the quality of life in their neighborhood. Broder described the “safety and tranquility” that they enjoy on a dead-end street with “large lots and old trees.”
“Meanwhile, neighbors are expending considerable funds defending their property rights,” Broder said.
Heidi Luce, 42 Phinney St., has two children and is concerned about their safety once building started. “I’m worried about all the traffic,” Luce told the Planning Board.
Kathy Falwell, 15 Phinney St., “strongly urged” the Planning Board not to approve the request.
Another neighbor, Dennis Farrell, 29 Phinney St., said, “Our interests are vital.”
“There are a lot of adverse affects on our community, if this is allowed to go forward,” Broder told the Planning Board in Monday’s meeting.
Meanwhile, legal documents are piling up at Town Hall as lawyers weighed in. In reference to the subdivision amendment and the lawsuit, Small on May 7 sent a letter and a copy of the lawsuit to Zelmanow and Planning Board members.
“Due to the material procedural and legal irregularities in the town’s efforts to acquire by taking the rights in Phinney Street Extension, the road is not a public way, not a fifty-foot wide recorded private way approved by the Planning Board, and not a way shown on a plan of a subdivision duly approved by the Planning Board that could fulfill the frontage requirement for a new lot,” Small wrote.
Also Monday, another lawyer, John Elmen of the Steeves & Graff law firm in Standish, representing several Phinney Street residents, sent a letter addressed to Town Planner Tom Poirier and members of the Planning Board. Elmen wrote that the Planning Board “should immediately discontinue any further action on the application.”
However, Caruso believes once the town attorney reviews the newly submitted material, the same findings, as earlier determined, would result.
Besides legal matters, the Planning Board before making a decision will also hear from the Maine Department of Environmental Protection about the issue.
“I’m hoping that the Town Council addresses the situation head on after procuring sound legal advice. If it does not, then court action will proceed,” Broder said. “There are already multiple suits pending and I suspect more to come.”
Photo by Rich Obrey
This map, prepared for the Gorham Planning Board site walk, shows the lot, marked with a star, owned by Travis Caruso in the Fort Hill Estates.
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