As many of you know, the Clary Lake Association has been in settlement discussions with Paul Kelley to buy the Clary Lake dam for some time now in the hopes that we could end this lake level crisis that is now heading into its 5th year. At the same time we have also been negotiating to purchase the Clary Mill property, either separately or as a “package” which property is owned by Richard Smith of Aquafortis Associates LLC. It’s not that we want to own the Mill (we don’t), we’re only interested in the dam but the properties are so entangled that it is virtually impossible to peacefully purchase and own just the dam without owning, at least briefly, the mill property as well. This is because of the restrictive covenants placed on the properties in 2013 and the red building (with its attendant easements and maintenance issues) on top of the dam, which building happens to belong to Aquafortis Associates.
These and other factors together have horribly complicated what in theory should have been a simple real estate negotiation. Whether by accident or design, the Clary Lake dam has become so hard to purchase and unattractive to own that on the advice of town counsel, the Whitefield Select Board has voted TWICE to waive foreclosure of the dam for unpaid back taxes because of concerns over “legal entanglements.” The first vote was at a Special Select Board meeting on March 24, 2015, and the second just two weeks ago at their regularly scheduled Select Board meeting on January 5, 2016. Back taxes for 2014 and 2015 totaling just $398.87 remain unpaid.
The CLA Board has spent considerable time and money over the past year in settlement discussions with Kelley and Smith. We have been ably assisted by Association counsel Ron Kreisman who has done everything in his power to keep talks on an even keel and moving forward toward our goal of owning the Clary Lake dam. These discussions have resulted in our making several very generous offers, the first one last spring (which they wouldn’t even listen to) and as the result of a second round of negotiations this past fall we made 2 new offers representing different configurations of property we were willing to purchase, which offers we presented to them in late December 2015. We have also carefully considered several counteroffers received from Kelley and Smith, 2 of them received as recently as last week. Our offers have been rebuffed; theirs were not acceptable to the Board.
Further complicating our negotiations was the discovery just a few weeks ago of the assignment of the Enos mortgage to Medius L3C and the announcement of a pending foreclosure/auction of the dam property at the end of this month. We know nothing about the new mortgagee, why they decided to take over the mortgage, and why they named their company after one’s middle finger. Finally, it makes little sense negotiating to purchase a piece of property from someone who will likely lose that property to foreclosure in a couple of weeks. Should the Clary Lake Association be expected to buy the dam twice?
For reasons already mentioned, the Clary Lake Association Board has decided it will not be bidding on the dam at the January 29th auction, and we are unaware of anyone else who intends to bid. Needless to say, people haven’t been lining up to buy the Clary Lake dam. It will be interesting to see who ends up with it after the dust settles.
Regrettably, we feel we’re no closer now to a settlement than we were when we started negotiations over a year ago, and we can only conclude that neither Kelley nor Smith are seriously interested in selling their property at this time. Perhaps down the road a ways their stance will change to one more amenable to settlement but for now, with no settlement forthcoming, the Clary Lake Association Board decided late last week to withdraw our offers from consideration and halt further settlement discussions. We realize that a lot of people have been hoping against hope that a settlement would be forthcoming. We’re sorry. The Board remains steadfastly committed to finding a solution to this crisis, including purchasing the dam at some point in the future should the impediments to our ownership be removed. For now, we will put our time and resources into supporting the Department of Environmental Protection’s efforts to enforce the Clary Lake Water Level Order and the Office of the Attorney General’s defense of the water level order in Superior Court.