I’ve added another dozen or so pictures of day 4 of repairs to the Clary Lake dam. On Friday PCS finally finished demolition of the deteriorating concrete plug which was blocking the original log weir in the middle of the dam (picture at left). The crew proceeded to remove material cautiously, being careful to keep the demolition debris out of the stream. One big surprise was finding a layer of old wooden timbers laid on top of the bottom layer of rock and covered with concrete. These date back to around 1950. The wood was punky but still relatively solid, and came out in individual pieces roughly 6″ x 8″ x 36″ long. I have no idea why they were left in place. Continue reading
Category Archives: Clary Lake Dam
07 November 2018: More Dam Repair Pictures
Visitors!
Today was day 2 of repairs on the Clary Lake dam and I’ve taken more pictures (see the Fall 2018 Gallery) to show the work in progress. They’ve started demolishing the old concrete plug in preparation for pouring new concrete and installing a weir in the top. The two piers and the concrete on top is newer and still pretty hard, it looked like a lot of work busting it up with those little pneumatic hammers. I remarked that my dentist has bigger drills than those they’re using, but they like them because they’re easier to use and don’t throw debris all over the place. They’re sure doing the job- especially lower down in the rotten concrete. The demolition of the concrete plug should be finished tomorrow or early Friday.
06 November 2018: Repairs Started at Clary Lake Dam
A little over 3 weeks ago we closed on the Clary Lake dam property and finally, yesterday, Monday November 5th, after over 7 years of nearly constant non-stop effort, repair work on the dam was finally started! I can’t even begin to tell you how pleased this makes me. Before going any further I’d like to take just a moment to thank our Membership, our Board, and others in our local community whose help and support were so important to get us to where we are today. It’s been a monumental effort and we couldn’t have done it without all your help. Thank you. Continue reading
17 October 2018 Lincoln County News: Clary Lake Association Closes on Dam, Plans Repairs
There is a follow up article in the Lincoln County News in this week’s paper by staff writer Jessica Clifford. The only factual inaccuracy that jumps out at me is the article states “The association received the deed to the dam Friday, Oct. 12.” when in fact, the closing on the dam was the following Saturday morning:
Good article, though I had hoped they would publish our mailing address and website address and encourage people to donate money to help restore Clary Lake! It is after all a Great Pond, held in trust for the People of the State of Maine. It’s everyone’s lake. No worries, anyone interested in donating shouldn’t have any trouble finding us.
I’ll post a link to a locally archived copy in a while.
13 October 2018: We Own The Dam!
We Own The Dam!
I’ve been waiting to say that for more than 7 years. Many thanks to everyone who helped make this possible! In particular, I’d like to thank the Clary Lake Association Board who has worked tirelessly with me over the years to get us where we are today. I’d also like to thank our Membership, past and present, and everyone else on or around Clary Lake who has contributed their time and money to bringing this about. We couldn’t have done this with all your help! I’d also like to thank our lawyer, Randy Creswell who did such a good job representing us in Bankruptcy court. Finally, and last but by no means least, I must mention my wife Margaret Fergusson who steadfastly helped and supported me (and put up with me!) throughout this challenging time. Thank you all!
It’s sure been an interesting 24 hours. Yesterday, as most of you know, was the last day of the 14 day stay of the September 28th Bankruptcy Court Order approving the free and clear sale of the Clary Lake dam to us. The 2 week period was to provide Richard Smith and/or Aquafortis Associates LLC with an opportunity to appeal that Order, if they wished. Finally, about 4:30 PM yesterday afternoon and on the last day available, they did just that, through their attorney Dennis Carrillo. Mr. Carrillo did not file a motion for a stay of the Order however. As a result, today, with the appeal period over and thanks to the 363(M) protections afforded us by the Court as Good Faith buyers, their appeal is moot, and the Order stands as issued.
We finally closed on the dam this morning. The deed has already been recorded electronically at the Lincoln County Registry of Deeds, and checks mailed to Medius L3C and to the Trustee. What happens to appeal now is not our problem. I’m guessing the Trustee will file a motion to dismiss next week. In any case, it’s not our concern.
Our work is just beginning. Now that we own the dam, it’s time to get busy on repairing it and restoring Clary Lake. I’m so ready for this 🙂
12 October 2018: Fundraising Update
One week ago today the Board mailed out yet another fundraising letter to our Membership, other Clary Lake shore owners, and friends of Clary Lake in the surrounding community. I had hoped to post a fundraising update before sending that letter, explaining where we stand financially, what we’ve spent money on so far, and why we need to raise more money, but the past couple of weeks since receiving the favorable bankruptcy court ruling have been unbelievably busy and I just haven’t found the time to sit down and address the matter. Until now. A few people have reached out to me recently with questions about the need for additional fundraising, so here I go, better late than never. A lot has been on hold this summer, pending receipt of the Clary Lake dam and we’re now trying to make up for lost time. First and foremost is getting the dam repaired as soon as possible. I’ll update everyone about that effort in a separate post. Continue reading
10 October 2018 Lincoln County News: Countdown On for Sale of Clary Lake Dam
A nice article in the Lincoln County News by staff reporter Jessica Clifford. It was going to be in last week’s paper but it got bumped:
The article states: “The covenants were established to prevent damage to the mill building from water flowing downstream.” We all know the real reason the covenants were placed on the dam property.
Here’s an archived copy:
06 October 2018: Dam Purchase Update
Now that we own the dam (or will, in a few days) we’ve got a lot to do! One of the first on the list of things to do is starting up the process of transferring the Clary Lake Water Level Order from the current licensee (Pleasant Pond Mill LLC or PPM) to the Clary Lake Association (CLA). The application has to be filed with the Maine Department of Environmental Protection within 2 weeks of the transfer of the property, and the first step is to send out a public notice of our intent to file the transfer application, and the approximate date. We originally sent this notice in early July when we anticipated owning the dam later that month, but court delays prevented that from happening. So here we go again. If you’re a littoral or riparian land owners around Clary Lake or someone who owns land directly across a road from the lake, you should have received your public notice earlier this week. There was also a notice in this week’s Lincoln County News. We’ve also started a second and final fundraising initiative to raise money needed to complete repairs to the dam; I’ll talk more about this in a separate post. Additional steps to be taken real soon include filing the underground tank registration form and the Permit By Rule notice required to work on the dam.
We’re one step closer to owning the dam! In accordance with the recent Order approving the sale of the Clary Lake dam to the Clary Lake Association, the Bankruptcy Trustee has filed evidence of compliance with paragraph 2 of the order, that being the transfer of the Clary Lake dam from PPM to Paul Kelley’s bankruptcy estate, from whence it will be eventually conveyed to us. The deed, dated September 28, 2018 was recorded by the Trustee at the Lincoln County Registry of Deeds on October 3, 2018 in Book 5311, Page 46. In other words, PPM no longer owns the Clary Lake dam. This has been a long time coming, and brings a smile to my face 🙂
Finally, more than a few people have expressed some concern about the 14 day appeal period, wondering what it means and worried that Paul Kelley will try and appeal the recent ruling. This is an understandable concern given past history with these parties, but it is not a valid one: as the debtor, Paul Kelley himself does not have standing to file an appeal; the only parties who do have standing to appeal are Richard Smith and Aquafortis Associates LLC. However, filing an appeal would be a waste of time and money because the judge granted us Good Faith protections under Section 363(M) of the U.S. Bankruptcy Code meaning that any appeal becomes moot when we close on the property. If an appeal has been filed by the time we close, a simple motion to dismiss is all it will take to make it go away.
28 September 2018 Central Maine Papers: Federal judge OKs Whitefield dam sale
Well that didn’t take long: yet another fine article in the Kennebec Journal and Morning Sentinel by Staff Writer Jessica Lowell.
I find this comment amusing:
Paul Kelley said Friday after the ruling was announced that he doesn’t know “how things are playing out. I do know that parties are generally unhappy.”
I can count the parties that are “generally unhappy” with today’s ruling on the fingers of one hand and have a couple of fingers left over. Everyone else is VERY happy 🙂
A minor correction: the dam cost $80,000 not $32,500
Here’s a link to an archived copy of the article:
28 September 2018: Bankruptcy Judge Approves FREE and CLEAR Sale of Dam!
At a short hearing held today at 10 AM in Bangor at the U.S. Bankruptcy Court, Judge Michael Fagone granted the Trustee’s motion to sale the Clary Lake dam to the Clary Lake Association free and clear of the restrictive covenants under sections 363(F)(5) of the U.S. Bankruptcy code. Gone too is the Medius mortgage under 363(F)(2). Further, the Judge granted the Clary Lake Association Good Faith Protections provided by section 363(M) of the U.S. Bankruptcy code. The Judge declined to allow the immediate sale of the property so we will have to wait to take title to the Clary Lake dam in 14 days at the expiration of the appeal period. Should AQF or Richard Smith (or anyone else) decide to appeal today’s ruling, 14 days from today our attorney will simply file a motion to dismiss and <POOF> the appeal will disappear, thanks to the 363(M) Good Faith Protections. Continue reading
Road Trip!
So who’s planning on attending the hearing in Bangor this Friday? Who’s thinking of it? I think it would be great for a contingent of Clary Lake people put in an appearance. This is the hearing when the Judge will rule on the Sale Motion and if past hearings are any indication, this one promises to be very interesting! If you’re planning on attending, drop me an email and let me know.
The hearing is at the U.S. Federal Bankruptcy Court at 202 Harlow Street, Bangor Me. See the previous post “Bankruptcy Judge to Issue Ruling in Open Court” for more information.
17 September 2018: Bankruptcy Judge to Issue Ruling in Open Court
We’ve all been anxiously awaiting a decision from the Bankruptcy Court on the Clary Lake Association’s efforts to purchase the Clary Lake dam from Paul Kelley’s bankruptcy estate. This morning Judge Fagone announced his intention of issuing an Oral Ruling on the Trustee’s Sale Motion in open court at a hearing at 10 AM on Friday September 28th at the United States Bankruptcy Court at 202 Harlow Street, Bangor, Maine. The hearing will be open to the public. A date for a ruling is not the same as a ruling, but I’ll take it. At least now we have an end date for the Sale Motion!
Given how much time has passed since oral arguments back on July 27th, we were all expecting the Judge to issue a written decision but our attorney assures us that Judges issue oral decisions in open court with some frequency. We have every reason to believe the Judge will approve the sale of the Clary Lake dam at that hearing, with the only question being whether he sells us the dam free and clear of the restrictive covenants or approves the sale with the covenants in place. Either way we’ll own the dam. The closing will most likely take place the following week. We have a contingency plan in place to deal with the covenants if the Judge decides not to sell the dam free and clear.
We had not counted on this sale process taking so long, and it remains to be seen whether there is enough time this fall to get the dam permanently repaired or whether we’ll need to wait until next summer for that. Needless to say we’ll do everything we can to get the dam repaired and the lake level restored as quickly as possible.
If anyone is interested in attending the hearing and is looking for a ride, get in touch with me about carpooling!
27 July 2018: Final Sale Motion Hearing Audio, No Ruling Yet
Oral arguments of the Final Sale Motion hearing took place today before U.S. Bankruptcy Court Judge Michael Fagone. Trustee Jeffrey Piampiano was represented by attorney Kaitlyn Husar, the Clary Lake Association [CLA] was ably represented by attorney Randy Creswell, and Richard Smith and Aquafortis Associates LLC [AQF] were represented by attorney Louis Carrillo. The Trustee and CLA were to receive 40 minutes combined to present their arguments in support of the Sale Motion, which time was to be split roughly equally between them. Attorney Carrillo was to be given 40 minutes to present his arguments supporting Smith’s and AQF’s objections to the Sale Motion. Finally, the Counsel for the Trustee was to be given 10 minutes for rebuttal. In fact, each party went over their time limits a little bit. Also present at the hearing representing the Maine DEP was Assistant Attorney General Scott Boak and co-counsel Kevin J. Crosman. The hearing started promptly at 10 AM and lasted about 2 hours. No ruling was issued today: after hearing the oral arguments, Judge Fagone took the matter under advisement and said he will issue his Decision and Order just as soon as he can. While I had hoped for a ruling from the bench today, the Judge was presented numerous cases to review and that was far more than he could be expected to do today.
I thought counsel for the Trustee and counsel for the CLA did a GREAT JOB of presenting their arguments, and I thought counsel for Smith and AQF was way out of his comfort zone did an incredibly lousy job of presenting his arguments, but don’t take my word for it, listen to the hearing audio and decide for yourself. Continue reading
26 July 2018: Final Sale Motion Hearing Tomorrow
A quick reminder: oral arguments on the Final Sale Motion are scheduled for tomorrow morning at 10 AM at the U.S. Bankruptcy Court in Portland. This will be the 4th and presumably final hearing on the proposed sale of the Clary Lake dam to the Clary Lake Association. You can read the original post about the hearing for more information (see Final Sale Motion Hearing Scheduled). I will be attending the hearing, and will post the outcome here as soon as I can. Stay tuned.
12 July 2018: Final Sale Motion Hearing Scheduled
The Judge in the Paul A. Kelley Jr. Bankruptcy case has issued an Order and Schedule for oral arguments on the a Final Sale Motion on July 27th, 2018 at 10:00 AM. The hearing will be at the U.S. Bankruptcy Court, 537 Congress Street in Portland Maine. The Order is only 4 pages long and is remarkably easy reading as Court Orders go, and I highly recommend everyone read it through so you’ll have an idea of the issues the court is grappling with. The Order both summarizes the actions taken to date starting with the May 22nd filing of the Motion to Sell up to last week’s July 5th evidentiary hearing, and then lays out 8 questions that the Judge wants the parties to address in their oral arguments before the court. Continue reading
06 July 2018: Sale Motion and Evidentiary Hearing Audio [UPDATED]
President Malcolm Burson and my wife Margaret and I attended yesterday’s Sale Motion hearing. Other parties in attendance were Butch Duncan, Richard Smith and Paul Kelley, counsel for the Clary Lake Association Randy Creswell, Bankruptcy Trustee Jeffrey T. Piampiano represented by Kaitlyn M. Husar, Esq., Assistant Attorney Generals Scott Boak and Kevin Crosman representing the Maine DEP, and attorney Dennis Carrillo representing Richard Smith and AQF. Regrettably, Paul Kelley’s bankruptcy attorney J. Scott Logan was not in attendance. Continue reading
05 July 2018: No Sale Today, Bankruptcy Case Continued
I had hope to be able to tell everyone today that the U.S. Bankruptcy Court had approved the sale of the Clary Lake dam to the Clary Lake Association, but that announcement is going to have to be postponed for a few weeks. Thanks to objections raised by Richard Smith and Paul Kelley, today’s hearing which should have resulted in a quick decision approving the sale instead turned into a day-long evidentiary hearing with numerous parties taking the stand and testifying, and being cross examined. Court started at 9 AM and finally adjourned at 4:30 PM. A hearing for oral arguments will scheduled sometime the week after next (the week of July 16th) at a time and place to be announced. While there is little question whether the judge will eventually approve the sale to the CLA, there are questions regarding the restrictive covenants which need to be answered. Smith’s and AQF’s objections to the sale and to the scraping of the covenants provided a considerable diversion today, but ultimately I have no doubt that we’ll end up owning the dam. Patience people. We’ve been waiting 7 years for this. A few more weeks won’t hurt.
I wanted to get something posted as soon as possible because I know there are lots of people anxiously awaiting word after today’s hearing. I’ll provide additional details about today’s hearing at a later date and will post an audio transcript of today’s hearing when it becomes available.
28 June 2018: Bid Deadline Passed, No Bids No Auction
The deadline for the submission of competing bids on the Clary Lake dam was Noon today. There were no competing bids received so there will be no auction. I guess nobody but the Clary Lake Association wants the dam! Next stop: the July 5th hearing on the Sale Motion.
28 June 2018: Recent Filings in the Kelley Bankruptcy
There have been some filings in the past few days in the Paul Kelley bankruptcy case including 2 Proof of Claims (Ford Motor Credit and Preti Flaherty), a Request for Notice (from Butch Duncan), and an interesting Supplement in Support of the Sale Motion by the Maine DEP. I see ALL of these filings as favorable for our efforts to purchase the dam and it is particularly gratifying to have DEP be so strongly supportive of our plan to purchase the dam. Continue reading
24 June 2018: Update on Clary Lake Dam Purchase Initiative
Late last week we sent a letter out to our membership with an update on the Clary Lake dam purchase effort explaining where we are, what’s up ahead, and what to expect. We also sent the letter out by email to those members for whom we have email addresses, just to get the message out a little faster. If you’re a member and have given us your email address but did NOT receive the email, please check your spam folder! I’m not sure why, but typically only about 2/3 to 3/4 of the emails we send actually get opened, though in the unsolicited email world, that’s actually a pretty high response rate. Now that most people have received the letter, we wanted to post it here for general consumption since there are a lot more people than just CLA members who are anxiously awaiting news:
Dear Clary Lake Association Member:
At a hearing in Federal Bankruptcy Court in Portland on June 7, the judge approved bid procedures for the sale of the Clary Lake dam and scheduled a deadline for objections and bids of Noon on June 28. The court also scheduled a July 5 hearing date to act on the Sale Motion. Sale of property by a Bankruptcy Court is done by public auction, and we started the bidding process with our $80,000 offer for the dam when the Sale Motion was filed back on May 22. Anyone wishing to bid on the dam has until Noon on Thursday, June 28 to submit their bid along with a $20,000 cash deposit and further evidence of their ability to pay should they win the auction. The minimum bid required to beat our $80,000 offer has to be at least $93,400, an amount set in advance by the court (subsequent bids have to be at least $1000 higher than the previous bid). Should someone submit a valid bid before the deadline, an auction will be held at 2 PM on June 28 at the offices of Drummond Woodsum in Portland. If there is going to be an auction, we intend to take part in it.
We have never thought there would be any competing bids for the Clary Lake dam given the costly repairs, the underground tank (see below), and the Water Level Order which as been recently upheld by the Lincoln County Superior Court. Nonetheless, the Board feels and our attorney agrees that we would be remiss not to be prepared to respond should a bidder surface on June 28. At a meeting on June 14 the Board reaffirmed its commitment to owning the dam and agreed to compete in such a bidding process should the need arise.
We do want you to know that in the event that we are forced to bid higher in order to buy the dam, it will be necessary for us to raise additional funds so the repairs can go forward in a timely manner. You have already been incredibly generous, and we currently have no plans for a new fund raising campaign. However, if any of you have suggestions for additional funds that the Board might pursue, or might be willing yourself to contribute again, please let me or Secretary Fergusson know confidentially.
We fully expect the sale of the dam to the Clary Lake Association to be approved by the Court on July 5, and we plan to go ahead this summer with permanent repairs to the dam. To this end we have been working with an experienced contractor. On or about July 1st we’ll file the required Permit By Rule application with DEP to cover the work on the dam, which should commence around July 15 and take 2-3 weeks. As soon as we actually own the dam we’ll also be filing the necessary paperwork with DEP to transfer the Water Level Order to the Association. All Clary Lake shore owners and people who own land directly across the road from the lake will receive a notice in the mail of this proposed transfer this week. A legal notice will also appear in the Lincoln County News on June 21.
You may also have heard of the discovery of an abandoned fuel storage tank on the dam property. This tank was abandoned in the early 1960’s, we think, and by law must be removed at the land owner’s expense. In theory it would be Pleasant Pond Mill LLC’s responsibility to deal with the tank but given that Mr. Kelley is in bankruptcy, that’s just not going to happen. We didn’t learn about the tank until after fundraising was already well underway, and after some investigation we concluded that it was not going to be an insurmountable obstacle to our purchase of the dam.
The Board is confident that we will be successful in our attempt to purchase the Clary Lake dam! We will send out an update immediately following the Court ruling on July 5th or when more information becomes available. Also keep an eye on the CLA website as we’ll likely post updates there as well. If you have questions, please get in touch.
Respectfully,
Malcolm Burson, President
Clary Lake Association
We’ve already received some favorable feedback from members affirming that yes, they want the dam, they want it fixed, and they want it soon and they’re willing to donate more money if necessary to accomplish our goal.