The Business and Consumer Court has given Wiscasset more time to respond to the Maine Department of Transportation’s answer to the town’s request for a permanent injunction preventing MDOT from demolishing the Haggett building without the Wiscasset Historic Preservation Commission’s OK.

The motion granted to Wiscasset on Feb. 16 gives the town until March 2 to answer the defenses and counterclaims MDOT filed Feb . 14, the day after selectmen rejected a consent judgment worked out by the town’s lawyers and MDOT lawyers.

According to court documents, MDOT said that under state law,  there is no local law MDOT must follow in the Wiscasset situation. MDOT denied the historic preservation ordinance was part of a zoning ordinance, one of the few town laws MDOT must by law consider when developing a transportation plan. Moreover, MDOT said the town has no right of action under a pair of state laws, 23 M.R.S. 651 regarding MDOT’s authority with state and state aid highways, and 30-A M.R.S. 4352 (6) that has one part which MDOT claims eliminates historic preservation from the list of zoning ordinances that must be considered. 

In another counterclaim, MDOT alleges two votes by selectmen – one, to order a letter be written to MDOT withdrawing support for Option 2, and the other withdrawing support for removing Main Street parking – were contrary to the board’s rules of order and procedure and Maine law, and were not lawful votes. 

If the court agrees with MDOT, Wiscasset’s court complaint could be rejected as unlawful. MDOT further asked, if the court grants any changes to the project, that the town pay for implementing them, concurrent with the design the select board approved in June 2016. MDOT also seeks its court costs.

MDOT asked for a uniform declaratory judgment that MDOT is not required to seek a certificate of appropriateness from the local commission in order to demolish the Haggett building. MDOT claims the ordinance’s demolition section is “unlawfully vague” and should be set aside by the court. The building lies within the Historic District but has been termed “non-contributing” by the federal government and is not considered eligible for registry on the National Registry of Historic Places, because it has been altered too many times inside and out. Those criteria would have guided the Section 106 review process if MDOT had taken federal funding.

The commission had considered all buildings in the district ”contributing,” but has not completed a historic district survey that would have established that. MDOT is also asking that no COA be required to build a parking lot on the site. Finally, MDOT states in its counterclaim that owing to statements the commission made, MDOT does not believe that any COA request would get a fair hearing, citing “bias and hostility” on the part of the commission and its members. “The HPC cannot serve as a neutral decisionmaker on any COA application submitted by Maine DOT,” the documents read.

“While we will not comment on any litigation, we stand committed to construct the concept previously supported by the town, which includes the removal of parking on Main Street,” MDOT spokesman Ted Talbot said.

“It’s no surprise, they’re pulling out every card they can. All we can do is try to follow the ordinance, and that’s all we can do. This is a democratic republic,” Commission Chair John Reinhardt said. “This flies in the face of everything we’ve always been taught about government. I’m not surprised, but I’m disappointed that they’re playing a game like a bunch of children.”

He said he hopes the judge will take a more balanced view. Reinhardt said the commission would be impartial with MDOT with regard to any COA. “I don’t care who you are. If you come into the Historic District, you cannot demolish or build without a COA,” he said. “We have to protect our particular history. If we don’t, who will?”