Ossipee – February 3, 2010 – A Superior Court judge last week denied a Motion for Contempt against Donald Lee by the big lake property owners group Ossipee Bluffs Association (OBA).

In his decision, Judge James D. O’Neill III said he believed Lee had “made diligent efforts” to comply with the court’s September 27, 2006 order that he remediate the environmental damage he caused to the Bradford Cove section of Ossipee Lake by altering the course of the Lovell River.

OBA charged Lee with willfully delaying compliance with the court order by submitting remediation plans to DES that were incomplete or not in compliance with the court order or both.

DES has rejected each of Lee’s proposed plans, including one that had so little detail that the Office of the State Attorney General was asked to determine whether it qualified as a plan. (It did not).

OBA’s Motion for Contempt was filed with the court on July 9, 2008 and was continued five times before Judge O’Neill ruled on it last week.

O’Neill set a new deadline by giving Lee 180 days to submit a remediation plan to DES and apply for approval to implement it. If he fails to meet the deadline, “counsel shall immediately notify the Court and a status conference shall be scheduled forthwith,” according to the order.

O’Neill also vacated – that is, canceled – the emergency order he issued less than a year ago granting OBA a $675,000 lien on Lee’s property to ensure that the remediation can be paid for.

OBA had asked that it be granted the emergency lien after Associate State Attorney General Richard Head signed an agreement with Lee limiting the state’s lien on his property to $50,000 and subordinating the lien to a new bank mortgage so that Lee could obtain a $150,000 home equity loan.

The subordination would have put the state’s claims on the property behind the bank’s claims in the event of a default or a required liquidation of Lee’s assets to pay for the remediation work.

In his new order, O’Neill restored the Head agreement and specified that any money Lee obtains through a loan will be used “solely for payment of expenses, including attorney’s fees, engineering costs or other costs and expenses directly related to remedial actions” ordered by the court.

Process Outlined
While the gist of O’Neill’s new order is identical to his 2006 order, it’s attached to a new process for resolving the tangled web of issues that has stymied the restoration of Bradford Cove.

O’Neill ordered that three environmental engineering firms work together on a remediation plan – one firm each representing OBA, Donald Lee and James Lamm. The latter is an abutting property owner who last year ago filed a complaint with the court claiming the remediation would destroy his property.

The judge named OBA’s engineer, Jim Rines of White Mountain Survey Co., as “the ‘lead’ expert in charge of the project,” adding that Lee “shall be responsible for any fees and charges associated with devising and submitting said plan,” presumably meaning he will be paying for the work of all three experts.

On the question of how environmental engineers representing three different clients who have conflicting interests in the case are expected to work cooperatively, the court order is silent.

During the 2006 trial, environmental specialists hired by OBA and Lee presented the court with a bewildering array of scientific research and drew vastly different conclusions from essentially the same data.

Also unaddressed by the new court order is whether the reestablishment of the Richard Head agreement, allowing Lee to tap equity from his property through a bank loan, will result in an agreement that puts the state behind the bank’s interest in the event the property must be sold to pay for the remediation.

Moreover, O’Neill’s order does not specify whether there is a limit to the amount Lee can remove from the property through a home equity loan, or whether there will be a state lien on the property and in what amount.

The Lee case began in 1988 when OBA reported to state environmental officials that Lee had built retaining walls to alter the course of the Lovell River and create a sandbar in front of his property.

After 18 years elapsed without a resolution of the issue by DES or the Office of the State Attorney General, OBA in 2006 sued Lee in State Court and won a judgment against him. Lee did not appeal the court ruling.

Ossipee Lake Alliance’s 2007 feature article on the Lee case can be found online at www.ossipeelake.org/lake/legal/bluffs-association/. More recent articles on the case can be accessed using the search function on the Alliance’s website.