The Department wasted no time in addressing my submission last Friday of Kelley’s Covenants, issuing this afternoon Department Procedural Order #8. The Order is short and sweet as is the time given for comments: 3 days. The Order included an updated Service List, a copy of my email, and all 17 pages of the Declaration of Restrictive Covenants. The Order proper is short:
On August 9, 2013, GEORGE S. FERGUSSON, spokesperson for the petitioners, submitted to the Department correspondence stating that a flow restriction of no greater’ than 50 cubic feet per second had been placed upon the Clary Lake Dam. As support of this statement, Mr. Fergusson submitted a Declaration of Restrictive Covenants, which was stamped as recorded on August 5, 2013 at the Lincoln County Registry of Deeds in Book #4696 on Page #59.
Future Course 0f Proceeding:
Parties may submit written comments on this documentation to the Department no than August 15, 2013. Comments must be copied to all parties on the Service List.
DONE AND DATED IN AUGUSTA, MAINE, THIS 12th DAY OF August, 2013.
DEPARTMENT OF ENVIRONMENTAL PROTECTÍON
Heather L. Parent, Presiding Officer and Policy Director
Here’s a copy of the order:
The fact that Ms. Parent has given us only 3 days to comment says a whole lot about what she thinks about these covenants: Not Much. In other words, color Heather Parent Not Impressed with Kelley’s latest shenanigans. This means she doesn’t intend to let this these covenants sidetrack her deliberations, which means the water level petition is right on track. If she had given us 2 weeks to comment, or a month, I would have been worried. And mad. Instead I’m happy, and Kelley is mad.
I also suspect that Kelley will be scrambling to come up with a sensible explanation of his actions, and of course he’ll fail miserably. I can’t wait to read it. I don’t think Kelley expected these covenants to come to light so soon; it was rather fortuitous that I became aware of them less than 2 days after they were filed. I think he was waiting to for the right time to drag `em out. I’d like to think we’ve caught him with his pants down…
Does Kelly’s mortgage restrict his ability to place covenants on the dam? A commercial lender would most likely include language in a mortgage disallowing any covenant that could possible impair the value of the asset. I wonder if Art Enos considered such language. Maybe Kelly ‘s covenant is a non-starter anyway?? Randy Wing
Good question Randy. There is nothing in the mortgage deed to prevent what Kelley did nor anything in the covenants themselves to suggest Art Enos approved them and I suspect he didn’t even know about them. As a courtesy I emailed Art last week informing him of the covenants. I also mentioned the fact that Art didn’t sign off on the covenants to Bob Rubin, Clary Lake Association counsel and he thought it was pretty much a non-starter: If Art were to foreclose on the property and take the dam back he likely wouldn’t be bound by the covenants. But Art’s not going to foreclose on the dam, he doesn’t want it back. He wants his money and Kelley’s Covenants have gone a long way towards assuring Enos won’t get paid.