Town of Lamoine, Maine
Town Hall
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Lamoine Board of Appeals
Minutes of February 1, 2005

Draft Copy - Subject to Change, Approval

Chairman Chris Tadema-Wielandt called the meeting to order at 6:34 PM.

Present were: Appeals Board members Reginald McDevitt, John Wuorinen, Hancock “Griff” Fenton, Chris Tadema-Wielandt; Administrative Assistant Stu Marckoon, Anthony and Josette Pettegrow, Warren Craft (non-sitting Board member), Gerald Ford, Donald Becker (CES), Edmond Bearor (Attorney for the Pettegrows), Karen Dube (Court Reporter), Gary Hunt (Attorney for the Appellants), Robert Alvarez, Paul Frederick and Chris Bowman (Cable TV Producer). The meeting aired live on Lamoine Government Channel 7 and was video taped and audio taped.

Alvarez et al vs. Lamoine Planning Board re: Shoreland and Site Plan Review permits issued to Anthony & Josette Pettegrow (Seal Point Lobster Pound).

Chairman Tadema-Wielandt said the primary task of this meeting is to complete the findings of fact in the above referenced matter. He said the Board ought to determine whether it has authority to conduct the appeal, unless it did that already. Chairman Tadema-Wielandt moved to find the board has such authority. Mr. Fenton 2nd. Vote in favor was 4-0.

Chairman Tadema-Wielandt said the Board is considering the Shoreland Zoning Ordinance. He said the applicants, Anthony & Josette Pettegrow, own the property. He said a copy of a deed showing such was attached to the application. He said the property is located at the end of Seal Point Road on Tax Map 8 Lot 12-2. He said the property is located in the Rural and Agricultural Zone and in the Limited Commercial Shoreland Zone. He said the application is for a permit to construct a gravel parking area, roughly 165-feet by 100-feet. He said appended to the application is a freshwater wetland alteration permit from the Department of Environmental Protection (DEP). He said approval from the Army Corps of Engineers was also attached.

Chairman Tadema-Wielandt said the Planning Board conducted hearings on the application and on January 27, 2004 approved the permit, issuing the findings on February 3, 2004. He said the appeal was filed on February 26, 2004. He said the appellants filed two appeals, one on the Shoreland permit issuance and one on the Site Plan Review permit issuance. He said the Appeals Board heard the Site Plan Review evidence first and public hearings on the Shoreland Zoning Permit Application were held on November 10, 2004, December 9, 2004 and January 11, 2005.

Mr. Wuorinen asked if the board should consider the need for a commercial operation to have permission to operate from the Planning Board in the Limited Commercial Shoreland Zoning area. He asked if it should be included in the Appeals Board deliberations. Chairman Tadema-Wielandt asked if Mr. Wuorinen was suggesting that Planning Board permission be a condition of Appeals Board approval. Mr. Fenton said he was unsure what Mr. Wuorinen was asking. Mr. Wuorinen said in the table of land uses in the Shoreland Zoning Ordinance, Planning Board approval is required for commercial operations. He said the Planning Board did not act on this application as a commercial operation.

Chairman Tadema-Wielandt said the application is not one for a permit for commercial use. He asked if there ever was a commercial permit, and said this has pretty much been an ongoing operation. Mr. Wuorinen said the nature of the operation is different now that the Pettegrows have made a success of it. The Board reviewed the table of uses in the Shoreland Zoning Ordinance.

Mr. Fenton said this property is zoned limited commercial. Chairman Tadema-Wielandt said it appears planning board approval is required. Mr. Fenton asked if that is for every owner. Chairman Tadema-Wielandt said Mr. Wuorinen’s point was that the commercial use today is not the use when the pound was first created. Mr. Fenton said there were three distinct transformation; one when it was just a pound, a subsequent owner had a permit for the tank building, and the new owners completed the tank building. He asked if there should be three permits for each change of use. Chairman Tadema-Wielandt said there was a permit for construction of the tank building, but not a permit for a particular commercial use. He said the tank building was an accessory to the use of the pound. He said the Appeals Board heard from a number of people that the operation has grown beyond the limited commercial use.

Mr. Fenton said the Appeals Board has already decided it’s not an industrial use. Chairman Tadema-Wielandt said the use is not prohibited by ordinance. Mr. Wuorinen said he would suggest the Appeals Board refer the matter back to the Planning Board for them to approve as a commercial use. He said it’s not necessary for the Appeals Board to make that decision. Mr. Fenton said the Appeals Board could not do that. Chairman Tadema-Wielandt said the Planning Board has, as has the Board of Appeals, decided that this is a commercial use but not an industrial use. He said there really isn’t a definition of “limited commercial”, so the Board must get back to common usage and consider the language from the Comprehensive Plan. He said that talks to the co-existence of residential and limited commercial uses. He said technical evidence presented by the Pettegrows indicates the letter of the ordinance has been met. He said they’ve also heard evidence from the neighbors that there is not the peaceful co-existence there used to be. He said the Board heard concerns that the use may become less limited. He said he didn’t know the ultimate capacity of the operation.

Mr. Wuorinen said the Pettegrows testified they are maxed out. He said he didn’t understand what that means. Chairman Tadema-Wielandt said he thinks it would mean there is not room for additional volume with the current facilities.

Mr. Fenton read from section 13(c) of the Shoreland Zoning Ordinance as follows: C. Limited Commercial District
The Limited Commercial District includes areas of mixed, light commercial and residential uses, exclusive of the Stream Protection District, which can coexist compatibly so as not to intrude upon one another. This district includes areas of two or more contiguous acres in size devoted to a mix of residential and low intensity business and commercial uses. Industrial uses are prohibited. A short discussion followed.

Mr. McDevitt said he would like to hear more of Mr. Wuorinen’s thoughts. Mr. Bearor said if a motion is to be made, they would like to be heard. Mr. Hunt said he had no objection.

Mr. Bearor said he didn’t understand Mr. Wuorinen at first. He said there appears to be some question as to whether the Planning Board has reviewed this use or determined it’s a light commercial activity. He said in constructing the ordinance, the section that Mr. Fenton read is not a definition. He said there is no definition of light commercial. He said there is a phrase of “low intensity business”. He said the number of trips per day is nowhere near what it is for a grocery or convenience store. He said the number of trips are being reduced by this application. He said the intensity of use is not there to warrant the determination this is not a use permissible in the light commercial district. He said the table of uses have light commercial uses and lists all those allowed, disallowed, and allowed with Planning Board or Code Enforcement Officer approval. He said there is no distinction between light commercial and commercial – it’s just commercial. He said the types of commercials allowed include aquaculture, and commercial activities. He said the limited commercial district is not named limited residential. He said the uses are supposed to co-exist. He said the Appeals Board has already determined through Site Plan Review, as has the Planning Board that they meet each and every one of those standards. He asked how they could reach a different conclusion that this would have an adverse impact on surrounding properties. He said that would be incongruous.

Mr. Bearor said they reviewed the ordinance as he had some misgivings. He asked who makes the determination that a use is permitted in a given zone. He said it’s not in the review criteria. He said the Planning Board struggled with the question of whether this was commercial or industrial. He said there is a definition of commercial use in the Shoreland Zoning Ordinance and read the definition as follows:
the use of lands, buildings, or structures, other than a "home occupation," defined below, the intent and result of which activity is the production of income from the buying and selling of goods and/or services, exclusive of rental of residential buildings and/or dwelling units.

Mr. Bearor said when you think about what the Pettegrows do, they purchase lobsters, store them, and then sell them. He said it’s clearly a commercial use. He said if it meets the definition, it’s sufficient to go through the review criteria. He said all the evidence leads to the conclusion that the activity co-exists compatibly so as not to intrude upon one another. He said the Appeals Board put a condition that sound monitoring be done again, and that’s fine. He said that’s a standard and they’ll comply. He said they discussed traffic, which is the bee in the bonnet, and that seems to be reduced by the proposed parking lot. He asked where they would be if the simply don’t continue with the parking lot if they have to grass it over. He said it would be more traffic in and out. He said the Planning Board has dealt with this application for commercial use in a limited commercial district. He said the ordinance doesn’t require a finding, but it seems implicit in that the Board issued the permit that it reached that conclusion. He said the Ordinance burdens Mr. Hunt with the Appeals Board reversing the Planning Board decision if the decision was clearly erroneous. He said that’s not there. He said if this were sent back to the Planning Board and that was appealed back to this board, and this board could decide on what could be decided tonight.

Mr. Wuorinen said his objected was that this case has been bouncing back and forth for many months. He said one tiny chink in the armor that would remain after the Appeals Board deliberations and that’s the matter of the Planning Board permit for the actual operation. He said going through the process would close off things at this sage, and the town would have done all it could do to bring the matter to a close. He said the motivation was to fill in the whole structure of town permissions so there is no gap in the decision. Mr. Bearor said he didn’t think there is a chink. He said when the application was reviewed by ordinance standards, once it’s characterized as commercial, it is permitted.

Mr. Fenton said he thinks there would be some recommendations to the Planning Board in regard to ordinances about uses allowed in various zones. Chairman Tadema-Wielandt said if the Pettegrows bought vacant land and build a pound and tank house that would be the initiation of a commercial use of this district. He said at the time those permits were applied for and approved, Mr. Bearor’s argument holds true that whether or not there is a place to check off on the application for commercial use, the Planning Board would be issuing a de facto permit for commercial use. Mr. Fenton said he did not believe the permit was issued for residential use. Chairman Tadema-Wielandt said he goes back to the language Mr. Fenton read earlier which talks about co-existence of residential and commercial uses. He said they had testimony that they impinge on one another.

Mr. Fenton said you could read it both ways – either commercial or residential. He said they heard testimony the lobster pound was one of the first pieces developed, and now it’s bearing the influx of homes. He said you could make an argument the impingement is reversed and the residential traffic is interfering with the trucks. He said that’s a weak argument, but could be looked at.

Mr. Alvarez said he didn’t think there is additional information in the ordinance on limited commercial. He said the Board ought to consider a publication from the DEP. Chairman Tadema-Wielandt asked if that was part of exhibit 4-SZ. Mr. Alvarez said yes, and said it’s the best description of the various areas. He said there is not a definition in the ordinance. He said his submission had only one page from the publication. Chairman Tadema-Wielandt said the Board has closed acceptance of evidence.

Mr. Wuorinen said what the board is considering is not the status of the permit to build a parking lot, but considering the advisability of encouraging the Pettegrows and the Planning Board to look at the application for a present use to clear the air and assure that all of the formalities are in place. Mr. Hunt said he doesn’t quite understand what Mr. Wuorinen is suggesting. He said the Board has an application from the Pettegrows. He asked if they need to file an application to conduct a lobster business at the site. Mr. Wuorinen said the Shoreland Zoning Ordinance has a table of land uses, and in the category of commercial, the Planning Board’s approval is required.

Chairman Tadema-Wielandt asked for a motion. Mr. Wuorinen moved that the Appeals Board communicate to the Planning Board that in order to complete the whole case, they should consider approval of this commercial operation in the Shoreland Zone. He asked if that was clear. Chairman Tadema-Wielandt said it doesn’t really affect the Appeals Board issuance of a permit. Mr. Wuorinen said “exactly”. He asked if the idea was to advise the Planning Board. Mr. Wuorinen said the Board would say they fell the Planning Board ought to do that.

Mr. Fenton 2nd. He said his concern is that there is an application for a parking lot, and it’s commercial, in the Shoreland Zone, and the Planning Board has acted upon it. He asked what the problem was. Mr. McDevitt said it’s a de novo hearing. Mr. Fenton said the issue at hand was handled by the Planning Board. He said they gave approval to the application. He asked what in the chart did the Planning Board not do.

Chairman Tadema-Wielandt said Mr. Wuorinen was suggesting that while the Appeals Board decides on the permit for the Parking Lot, the Planning Board consider the use issue. He said he wondered whether that’s an enforcement issue. Secretary Marckoon said the Shoreland Zoning Ordinance spells out who has enforcement authority. Vote was 1 in favor, 2 opposed (Tadema-Wielandt, McDevitt) and 1 abstained (Fenton).

Chairman Tadema-Wielandt suggested that they should go through the review criteria. He said the Appeals Board has preliminarily voted on the criteria, but there has been additional evidence so they ought to go through it again. Mr. Wuorinen suggested reading through the review criteria and anyone with concern that a no-vote is necessary on a particular matter, and then vote en-masse. Chairman Tadema-Wielandt asked if he meant reaffirming votes unless there is comment to the contrary. Mr. Wuorinen agreed.

Chairman Tadema-Wielandt read the first review standard (Will maintain safe and healthful conditions) that the project will maintain safe and healthful conditions. Mr. Alvarez asked for a page reference. Mr. Bearor said it’s section 16(E)(3). Chairman Tadema-Wielandt said he had reservations about safe and healthful conditions and suggested the Board continue on.

Chairman Tadema-Wielandt read review criteria item # 2 (Will not result in water pollution, erosion, or sedimentation to surface waters). He said the Appeals Board determined on November 10th the project would not result in pollution and sedimentation. He said the evidence from Mr. Becker was sufficient to convince a majority o the board there would not be pollution.

Chairman Tadema-Wielandt said the next criterion (Will adequately provide for the disposal of wastewater) was not applicable to this project.

Chairman Tadema-Wielandt said the next criterion (Will not have an adverse impact on spawning grounds, fish, aquatic life, bird or other wildlife habitat) was discussed and determined that no adverse impact would be made on spawning grounds etc, and there is little or no change in the amount of wildlife.

Chairman Tadema-Wielandt said the next criterion (Will conserve shore cover and visual, as well as actual, points of access to inland and coastal waters) was determined by the Appeals Board that the project would conserve the shore cover. He said they heard considerable testimony from Mr. Becker and evidence from Mr. Frederick and a discussion from Mr. Alvarez regarding shore cover. He asked if there was any evidence to change the vote. None was indicated.

Chairman Tadema-Wielandt said the next criterion (Will protect archaeological and historic resources as designated in the comprehensive plan) determined that it was not applicable, as there are no such resources.

Chairman Tadema-Wielandt said for the next criterion (Will not adversely affect existing commercial fishing or maritime activities in a Commercial Fisheries/Maritime Activities district) it would not affect them because the only maritime activities present are those conducted by the Pettegrows and this is not the CFMA district, so it’s not applicable to this application.

Chairman Tadema-Wielandt said this project would avoid problems with floodplain development. (Will avoid problems associated with flood plain development and use). He said that was based on substantial evidence from Mr. Becker. Mr. Alvarez said Mr. Becker’s explanation of the floodplain was mixed up. He said for anything located in the Shoreland Zone, it must be greater than 1-foot above the floodplain base elevation. Chairman Tadema-Wielandt said the Appeals Board is considering the parking lot, and that is of sufficient elevation. He said the residence is not the subject of this appeal.

Chairman Tadema-Wielandt said the Appeals Board determined the next criterion (Minimum Lot Standards) were met as shown on the numerous plans filed.

Chairman Tadema-Wielandt said in regard to the next criterion (Principal and Accessory Structures) the Board determined the parking lot meets the setback requirements as shown on the Salsbury plan.

Chairman Tadema-Wielandt said the next criterion (Piers, Docks, Wharfs, Bridges and Other Structures and Uses Extending Over or Beyond the Normal High?Water Line of a Water Body or Within a Wetland.) does not apply.

Chairman Tadema-Wielandt said in regard to the next criterion (D. Campgrounds, & E. Individual Private Campsites) the Board found there are none.

Chairman Tadema-Wielandt said the Appeals Board found the parking lot meets the standards of land use in Section 15, as well as the roads leading to and past it (Item F& G). He said there are no signs (Item H.). He said stormwater runoff (Item I.) was explained by Mr. Becker and based on the June 2003 Engineering Study; the Appeals Board found this standard was adequately met. He said waste disposal (Item J.) is not an issue and does not apply. He said no essential services (Item K.) are required for the parking lot. He said no mineral exploration or extraction (Item L) is proposed, and there are no agricultural activities (Item M.) being conducted.

Chairman Tadema-Wielandt said there was some evidence of trees of the size covered by the Shoreland Zoning Ordinance (Item N.) were removed. He said there was also evidence in the plans that provided that re-vegetation would be undertaken which will restore the area to conform to the ordinance standards.

Chairman Tadema-Wielandt said the clearing of vegetation for development (Item O.) was the subject of enforcement action, and it was decided by the Selectmen when they accepted the Pettegrows agreement for re-vegetation that proposed restoration that would reduce the total existing coverage to less than what existed at the time the Pettegrows purchased the property. He said no evidence to the contrary was presented.

Chairman Tadema-Wielandt said the same study that addressed stormwater addressed sedimentation and erosion control (Item P.) which was satisfactorily addressed. He said Mr. Becker convinced the Board that the soils were suitable (Item Q.) for the proposed use as a parking lot. He said he didn’t think there was evidence presented that water quality (Item R.) is affected by the construction and use of the parking lot. He said there was no evidence of archaeological sites (Item S.).

Chairman Tadema-Wielandt said according to his tally, the only review standard the Board had not decided and where there is a concern is that the project would maintain safe and healthful conditions. Mr. Wuorinen asked if he was thinking about the town road. Chairman Tadema-Wielandt said there was testimony that the parking lot would facilitate fewer trips, and that is his main concern. He said given that the Board is not going to address the commercial/limited commercial issue, there is no evidence the parking lot won’t facilitate more safe condition than existed prior to its construction if there would be more trips with smaller trucks without the parking lot.

Mr. Wuorinen said the Board heard from Mr. Alvarez that the present divers are careful and polite. Chairman Tadema-Wielandt said that evidence came from a number of the appellants.
Mr. Wuorinen moved that the Appeals Board find favorably on review criteria items 3a through I in Section 16(E)(3) a-i. Chairman Tadema-Wielandt asked if that was based on the reasons given during the initial votes in favor. Mr. Wuorinen said yes. Chairman Tadema-Wielandt asked about additional conditions, and said those suggested by the Appeals Board were part of the Shoreland Zoning Ordinance. Mr. Fenton said they were part of the Site Plan Review. Chairman Tadema-Wielandt said the motion is to affirm positive findings on Shoreland Zoning Ordinance review criteria section 16 (E)(3) a-i. Mr. Fenton 2nd. Vote in favor was 4-0.

Chairman Tadema-Wielandt said the Board needs to decide if the application is approved. Mr. Wuorinen said the Board doe not find substantial ground for finding otherwise.

Mr. Hunt asked if the Board has decided not to address commercial use vs. limited commercial at all. Chairman Tadema-Wielandt said that would be correct. Mr. Hunt said he’s concerned that the Board should be more definitive on how that issue should be addressed. He asked if this use comes within the limited commercial category or not. Mr. Bearor said the decision not to address this issue is appropriate. He said if Mr. Hunt wishes to seek that decision, it should go to Superior Court. He said the court would not grant deference to the Board’s decision on the matter of interpretation of an ordinance. He said there is nothing to be gained from further discussion, and that’s how he believes it would be played out.

Chairman Tadema-Wielandt said the Board agreed it is a commercial use and not an industrial use. He said he didn’t know where to go with the commercial vs. limited commercial issue. He said Mr. Bearor was persuasive there is no definition of limited commercial. Mr. Fenton said there was no testimony regarding the maximum amount of activity. He said the pound and tank building have finite capacity. He said that’s a limiting factor, and there is still no guidance. Mr. Wuorinen said the Appeals Board is charged with determining that whether or not the decision of the Planning Board is clearly contrary to the ordinance. He said in that area, the ordinance doesn’t give much nourishment, and the definitions are not adequate. He said he does not see the outcome altered by that consideration.

Chairman Tadema-Wielandt said he wondered what other things could be taken into account other than truck traffic upon which to base the decision. Mr. Fenton said the application is for a parking lot. Mr. Wuorinen said absent very carefully constructed definitions, he doesn’t see what the board could do.

Mr. Hunt said in Richard Baker’s letter to Mr. Alvarez in exhibit 4-SZ and 1-SZ, Mr. Baker stated in the 1/26/03 letter on page 2 that it appears some of the concerns regarding the lobster pound is the increased use of activity and traffic. He said at some point it could be expanded to not be compatible. He read from the letter. He said what Mr. Baker says to the town is that the Planning and Appeals Board can make that determination. He said it’s unfortunate the ordinance does not provide the standards. HE said he’s addressed his thoughts on expansion of use.
Mr. Bearor said it’s not clear from Mr. Baker in that letter, but was made clear in his last letter to the Pettegrows that he was not familiar with the property. He said Mr. Wuorinen’s point is well taken that the Appeals Board can only overturn the Planning Board if the Planning Board’s decision was clearly erroneous. He said the ordinance doesn’t give guidance where the Planning Board decision was clearly wrong. He said there would have to be a Legislative decision to amend the ordinance one way or another depending on whether the community wants to restrain business. He said the product to work with at this time is the ordinance, and he doesn’t think the Planning Board erred. He said the Appeals Board does not need to make a decision on that.

Mr. Hunt said the provision in the ordinance regarding overturning a Planning Board decision is defective. He said it does not contain the magic words regarding an appellate hearing. He said this is a de novo case. He said the case is a new record, and the proceedings of the Planning Board are to be ignored. Mr. Bearor said that’s absolutely contrary to the ordinance. He said the Appeals Board had this discussion a month ago. He said the Planning Board decision must be clearly contrary to be overturned, and Mr. Hunt has the burden of proof. He said the hearing is still de novo.

Mr. Fenton said in a de novo hearing, the Board heard testimony that this parking lot would decrease traffic on Seal Point Road, cutting trips by 50-percent. He said the size of the trucks take more product and in effect the Board heard that the parking lot has lessened activity by making it less commercial than prior to the parking lot. He said the amount of activity on the road is reduced. Chairman Tadema-Wielandt said it has lessened traffic.

Mr. Frederick said that’s a lovely hypothesis by the Pettegrows. He said they have not proved there is less traffic. He said the Pettegrows have said the commercial viability of this business without the parking lot is questionable. He said the application for the parking lot said they needed to expand the business. He said for the Pettegrows to say there would still be a viable operation but having the truck traffic double doesn’t smell right.

Chairman Tadema-Wielandt asked if there was a motion. Mr. Wuorinen moved that the Board find the Planning Board decision was not clearly contrary to the ordinance and therefore should be supported with the three conditions discussed on many previous occasions. Chairman Tadema-Wielandt said that was under the Site Plan Review. Mr. Wuorinen said correct. Chairman Tadema-Wielandt said the motion is not necessary. He said he’s not inclined to go beyond where the Appeals Board has already gone. He said the Appeals Board has given de facto approval to the level of commercial activity, and should let it sit there. Mr. Wuorinen asked if no motion is required. Chairman Tadema-Wielandt said if the Superior Court wants to, they can.

Chairman Tadema-Wielandt moved to approve the Shoreland Zoning Permit applied for by the Pettegrows. Mr. Fenton 2nd. Vote in favor was 4-0.

Minutes of January 11, 2005 – The board was not ready to deal with the draft minutes of January 11, 2005. Secretary Marckoon asked board members to submit written change to him.

Mr. Wuorinen noted the last meeting consumed 18.5 pages of minutes and the quality was very good. He thanked the secretary.

Chairman Tadema-Wielandt said the Board has to reduce its findings and conclusions to writing. He asked how much time. Discussion followed that it was 30-to-35 days. He said he would take a stab at writing up the findings of fact and conclusions of law and circulate a draft. He said the Board needs to meet again to approve that. After a short discussion, the Board agreed to reconvene on February 23, 2005 at 6:30 PM.

There being no further business, the Board agreed to adjourn at 8:08 PM

Respectfully submitted,

Stu Marckoon, Secretary