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Minutes of the Lamoine Board of Appeals
November 10, 2004

Approved as edited 11/30/04

Chairman Chris Tadema-Wielandt called the meeting to order at 6:33 PM at the Lamoine Town Hall.

Present were: Board of Appeals members Reginald McDevitt, John Wuorinen, Chris Tadema-Wielandt, Hancock “Griff” Fenton, Court Reporter Karen Dube, Secretary Stu Marckoon, Gerald Ford, Robert Alvarez, Donald Becker (Engineer, CES), Paul Frederick, Edmond Bearor (Attorney for the Pettegrows), Warren Craft, Josette & Anthony Pettegrow, Gary Hunt (Attorney for the appellants), Kate Berry, and Nancy Washington.

Consideration of Minutes: Mr. Wuorinen moved to approve the final drafts of the minutes of June 17, 2004 and August 22, 2004. Mr. Fenton 2nd. Vote in favor was 4-0.

Chairman Tadema-Wielandt proposed numerous minor corrections to the draft minutes of October 21, 2004. Mr. Wuorinen moved to accept the minutes as corrected. Mr. McDevitt 2nd. Vote in favor was 4-0.

Alvarez et al vs. Lamoine Planning Board re: issuance of Site Plan Review & Shoreland Zoning permits to Anthony & Josette Pettegrow (continuation)

Chairman Tadema-Wielandt said at the end of the last meeting the Board was at the point that the review of the Site Plan Review application was complete. He said he had neglected to introduce as exhibits letters from three interested parties. He said one was a letter dated June 17, 2004 from Kenneth Parton of Eider Lane, and proposed that it be Exhibit 10. Both Mr. Bearor and Mr. Hunt said they had no objection.

Chairman Tadema-Wielandt said the next letter was dated September 8, 2004 from Robert Friedman and Palmyra Lomonaco, appellants, regarding road width measurements. He said the letter refers to “our measurements”, and assumes the letter writers took those measurements. He said the second page of the letter shows the road width measurements at certain locations on both the public and private part of the road. Mr. Bearor said he had no objection and said it refers to the next letter. He said he didn’t realize the other letter was a year earlier. Mr. Alvarez asked if the chairman made a mistake in saying the public road ends at the McMillan gate. Chairman Tadema-Wielandt said he did. Mr. Alvarez said that was incorrect, as the public portion of the road ends at the tar by the mailboxes. Chairman Tadema-Wielandt said he stands corrected, and the letter does not say that. He said the September 8, 2004 letter would be Exhibit 11.

Chairman Tadema-Wielandt said the third letter is dated October 2, 2003 and is a three and a half page letter from Mr. Friedman and Ms. Lomonaco and was the basis of their appeal. He said the letter was returned to the writers and the formal appeal was made by Mr. Hunt on their behalf. Chairman Tadema-Wielandt said Mr. Friedman had asked if he would accept the letter as an exhibit. He said the letter is an expression of Mr. Friedman’s and Ms. Lomonaco’s opinions and he would like to enter it as Exhibit 12. Neither Mr. Hunt nor Mr. Bearor expressed any objection.

Chairman Tadema-Wielandt said at the end of the last meeting the Board was at the point of entertaining the idea of making a decision on the Site Plan Review Application. He said the question was raised whether a public hearing was to be held. He said from reading the ordinances and the statutes, he believes the entire proceeding has been a public hearing. He said the initial meeting was advertised, notices were given, the public was welcomed at the first and all subsequent hearings, and the public could present testimony and be heard. He said if he were missing something, he would like to know what it was.

Mr. Alvarez said much of the application was seen for the first time at these meetings. He said the applicants did not submit the applications 10-days prior to the first meeting as promised. He said some of it is quite technical. He said there should be an opportunity to review it outside the meeting and have a separate hearing. He said at the site visit he attempted to raise several points, and Mr. Bearor objected, and said the appellants would have their turn at the hearing.

Chairman Tadema-Wielandt asked Mr. Alvarez if he had not presented those things he had wished. Mr. Alvarez said he feels the Board has run an informal hearing, and there should be a hearing at the end of the presentations. He said it does not constitute a public hearing. He said a public hearing should come once the two applications are fully presented and the appellants could have their say. He said if the Board approves a permit now, the appellants would be unable to say anything more. He said the Board should hold the testimony in abeyance until it finished the Shoreland Zone portion. He said the two overlap and the approval of the Site Plan permit might lock the Board in on the Shoreland permit.

Chairman Tadema-Wielandt said the Site Plan Review was filed first, and approval was a pre-requisite to the filing of the Shoreland Zoning application. Mr. Alvarez asked what the objection is to a public hearing. Chairman Tadema-Wielandt said the entire thing has been a public hearing that started June 17th. He said most of the exhibits except the letters introduced tonight have been available for public review since they’ve been introduced. Mr. Alvarez said the Pettegrows did not present their applications like they said they were going to, and the Board said at the end there would be a public hearing. He said he’s looking forward to the public hearing.

Chairman Tadema-Wielandt said if there is evidence that Mr. Alvarez has not taken the opportunity to introduce, or evidence that ought to be introduced, these should be introduced now. Mr. Alvarez asked where the public’s right to know is, as the people present are not the only people interested in this. Chairman Tadema-Wielandt said notice of the first meeting was published in the newspaper. He said the subsequent meetings were scheduled by public proclamation at the prior meeting, so anyone who has been interested and desired to be heard has known when the meetings were. He asked if Mr. Alvarez was suggesting that the Board has to publish every one of the meetings. Mr. Alvarez said by law the Board does, and asked Secretary Marckoon about the procedure. Mr. Marckoon said he agreed with Mr. Tadema-Wielandt that the first meeting was advertised as a public hearing and published and each meeting following has been a continuance and has been properly posted. Mr. Alvarez asked what the concern was with having a public hearing.

Chairman Tadema-Wielandt said assuming this is not a public hearing, it would require that the Board adjourn or continue one more time to a date far enough in the future so notice could be published. Mr. Alvarez said they want a chance to look at the case outside of the meeting because this is the first time they’ve seen the information.

Mr. Bearor said he was comfortable that whatever requirement for hearing and notice has been met and the entire proceeding could be viewed as a public hearing. He said if this had proceeded without comment from anyone else, and then there was opportunity for public input, that might be one process. He said the appellants have had an opportunity to respond to everything he and his clients have presented. He said it’s not the first time Mr. Alvarez has seen the exhibits, as 99-percent of them were presented to the Planning Board. He said the map is the same as that presented to the Planning Board. He said if the Board moved on and decided on both applications in the future, or decided on the Site Plan Review application now and the Shoreland Zoning application later, either way adequate provision has been made for public input. He said his clients would be the ones gored if there was a procedural irregularity. He said he’s willing to take a chance on the courts that the public had notice and the opportunity to be heard.

Mr. Hunt said he’s confident the Board will give his clients and members of the public an opportunity to comment at the conclusion of taking in the information. He said he assumed the Board would ask if anyone else has anything to say prior to closing the hearing and beginning deliberations. He said this is a de novo hearing, and the Board of Appeals Manual from Maine Municipal Association talks about such hearings are like the Planning Board decision never took place. He said the Board is proceeding that way. He said he’s questioned some things as they’ve come up. He said he would call the whole thing a public hearing. He said if there is a chance to comment, there has been due process.

Mr. Wuorinen said the Board would be in a better position to make decisions on the two permits if both had been covered prior to considering the Site Plan Review. He asked what would be lost by proceeding on the Shoreland Zoning matter. Chairman Tadema-Wielandt asked if Mr. Wuorinen felt the Board would be better served by taking in all the evidence and the public having a chance to review all the evidence. Mr. Wuorinen said yes.

Mr. McDevitt said the attorneys seem satisfied with the conditions, and the Board should listen to them. Mr. Fenton said it’s wise to proceed with Shoreland Zoning and listen to both presentations, accept public comments, then enter deliberations.

Chairman Tadema-Wielandt said he didn’t see any harm in doing it that way, since it’s an hour beyond the start time. He said he was unsure the Board would get to the point of a decision tonight. He said he would ask for a formal decision. He moved that board take evidence and hear the Shoreland Zoning Permit Application this evening or such further time is necessary to take everything in, and subsequent to that, adjourn, and the next meeting they will take public comment prior to deliberation and making decisions. Mr. Wuorinen 2nd. Vote in favor was 4-0.

Chairman Tadema-Wielandt asked Mr. Alvarez if he believed public notice should be given for the next meeting. Mr. Alvarez said it would protect the Board on appeals. He said there is plenty of time, and it requires 10-days notice. Mr. Marckoon asked what kind of public notice is being proposed – a newspaper ad? Chairman Tadema-Wielandt asked how much a newspaper ad costs. Mr. Marckoon said about $30.

Chairman Tadema-Wielandt said the Board would proceed to the next matter on the agenda, the issuance of the Shoreland Zoning permit. He said the parties are the same as the Site Plan Review appeal. He said the permit was issued to Anthony & Josette Pettegrow, who are represented by Mr. Bearor and the appellants are represented by Mr. Hunt. Chairman Tadema-Wielandt listed the appellants as follows: Robert and Edith Alvarez, Bill and Nancy Washington, Bob and Palmyra Friedman, Brad and Kate Berry, Paul Frederick, Marie Langlois, Stephen and Debra Cohen, Howard and Nadine Kern, and Paul and Lois Culler.

Chairman Tadema-Wielandt said as with the Site Plan Review matter, which the Board has finished taking evidence on, he notes the Board has a quorum present, there is no question on the timeliness of the Appeal. Mr. Bearor agreed. Chairman Tadema-Wielandt asked if there was objection to the jurisdiction of the Board. Mr. Bearor said there was none. Chairman Tadema-Wielandt asked if any members felt they had a bias or conflict of interest in this matter. No member indicated they had a conflict of interest or bias in this matter.

Chairman Tadema-Wielandt said it appears there is no question of standing with the same parties to the appeal. Mr. Bearor agreed. Chairman Tadema-Wielandt said as with the Site Plan Review appeal, there has been prepared for the Shoreland Zoning Appeal, a binder with a number of documents presented before the Planning Board. Mr. Bearor said he received that binder at the Sunday meeting in August. Mr. Hunt said he had one. Chairman Tadema-Wielandt said he would like to mark that binder as Exhibit 1-SZ. There were no objections. (Audio Tape 1-A ends at this point).

Chairman Tadema-Wielandt said the Board needs to let Mr. Bearor proceed with his submissions as if the Appeals Board were the Planning Board. He said this is a de novo hearing.

Mr. Bearor said although Exhibit 1 has everything in the original application presented in January, he would like to pass out copies of the application. He said each has a map in it, the same as was presented to the Planning Board. He said the map reference is made in Exhibit 1-SZ. He said the map legend is shown in Exhibit 1-SZ, and they’ll use the map to address some of the review criteria.

Mr. Bearor said the appellants allege the application was not complete, and he would like to see if the application is complete. He said in Exhibit 1-SZ, on page 4, the appellants argued the application is not complete, and that what is missing is Shoreland Zoning Ordinance requirement Section 16D1i. He said that section authorizes the Planning Board to request information, but it does not require the Planning Board to do so. He said the Planning Board chose not to ask for additional information, and no error was made. Mr. Bearor read section 16D1i as follows:

any other information that the Code Enforcement Officer or Planning Board may require as necessary to determine conformity with the provisions of this Ordinance.

He said the Planning Board determined they had enough information. He said Mr. Hunt noted the traffic records. He said they gave the traffic records to the Planning Board and the Board of Appeals has seen it. He said they had an exhibit for business hours. He said the Board would waste a lot of time if it goes through the completeness review again. He asked Mr. Hunt if they could agree the application is complete.

Mr. Hunt said there should be information on items he mentioned in the notice of appeal. He said they have a bearing on whether the use is industrial or not. He said that would be a list of employees, traffic records that are understandable, and hours of operation. He said the Planning Board should have required that information, but instead the Planning Board asked for the traffic records to be submitted after the application and there was no review by the Planning Board. He said it’s not complicated for those things to be submitted. He said whether use of the property has moved from commercial to industrial is one of the main issues for the appeal. He said that should be part of the application.

Chairman Tadema-Wielandt said he believed that in the hearing for the Site Plan Review, the board determined that a complete application was filed, in its role as a Planning Board. He asked Mr. Bearor if the Board finds the Shoreland Zoning application filed with the Planning Board was complete, would that be determinative of the appeal. Mr. Bearor said Mr. Hunt has other issues. He said the Board could go through the application components. Chairman Tadema-Wielandt said the Board should see if anything in the application was objectionable instead of saying what was previously submitted comprises a completed application.

Mr. Bearor said he didn’t challenge the premise the Site Plan Review proceeded on which is that everything is opened up once an appeal is filed. He said he thinks that’s wrong. He said only the issues an appellant raises on appeal should be looked at by the Board of Appeals. He said if the Board goes through each review criteria, even though few have been challenged, so be it, but he didn’t think it was proper. He said if the Board does, the Board’s determinations are supposed to be only to overturn the Planning Board if it was clearly contrary to the ordinance. He said that’s still the standard here. He said whether or not the application is complete, he would point to the section of the ordinance that says what was needed to be submitted. He said Mr. Hunt said the Planning Board could ask for additional information. He said the Planning Board didn’t. He said the traffic information went to the Planning Board prior to its deliberations. He said the Planning Board never asked for further information as part of the application. He said he would set forth the application is complete. He said to please let him know if there is a lack of information.

Chairman Tadema-Wielandt asked Mr. Bearor if he felt the Board of Appeals does not have the authority to ask for additional information, even though the Planning Board is allowed to. Mr. Bearor said he did not think so. He said the only standard is that the Board of Appeals reverses the Planning Board only if the decision is contrary to the provisions of the ordinance. He again stated the Planning Board had the discretion not to ask for additional information. He said if the Appeals Board asked for additional information, they would provide it, but it does not make the application incomplete.

Mr. Wuorinen asked if the key issue is whether the Board of Appeals has information, or if not, could it be furnished by either side, and not the completeness of the application presented to the Planning Board. Chairman Tadema-Wielandt said he thinks Mr. Bearor is saying Exhibit 2-SZ, which was filed with the Planning Board is now his client’s application before this board, and it is complete as far as the Shoreland Zoning Ordinance requires, but that does not preclude the Appeals Board from asking for further information. Mr. Bearor said that was correct.

Chairman Tadema-Wielandt asked Mr. Hunt if he would like the Board to go through what’s required for the application. Mr. Hunt said the point at which the Board would require additional evidence is the point at which it determines the application is complete. He said the Planning Board was wrong not to require that information, and it’s not completely discretionary. He read section 16D1i. He said that additional information is whether it’s a limited commercial or industrial use of this property. He said the information he mentioned about traffic, hours and employees is necessary to determine whether it conforms to the ordinance. He said he took exception to the Planning Board not thinking it was necessary. He said the Planning Board had the opportunity in the completeness review to ask for that information, and they didn’t. He said at a later meeting one Planning Board member asked for the traffic information. He said he thinks this is the stage where this information should be submitted. He said the crux of the appeal is whether this is industrial or an expansion of use that should have had a permit. He said that expansion of use is a defined term in the Shoreland Zoning Ordinance. He said they should know the number of employees, the hours they are operating, and the traffic. He said we should know that information for when the original tank room permit was granted and should know the history, to know if this is an expansion of use beyond the limited commercial zone definition.

Mr. Bearor said they would provide additional information if the board wants it. He said that’s a different question than Mr. Hunt’s appeal saying the application before the Planning Board wasn’t complete. He said every submission requirement begins with the word “shall”, except for the one Mr. Hunt is asking for which contains the word “may”. He said he’s prepared to argue the commercial/industrial issue. He said he thinks the Appeals Board will agree with the Planning Board on that matter.

Mr. Bearor said he doesn’t see a separate permit application needed for an expansion of use. He said they applied for a particular project to be approved because it needs a permit. He said it’s kind of a mushy presentation on the industrial use issue. He said the Appeals Board will review the same materials as reviewed under the Site Plan review ordinance. Mr. Alvarez said he agreed with Mr. Bearor and the application was substantially complete, and asked the Appeals Board to follow the ordinance. He said the substantial review of this is different. He said the application is just name rank and serial number, the basics.

Chairman Tadema-Wielandt asked if there was any question whether the application filed with the Planning Board was complete as far as items 16D1 “a” through “h”, and the only complaint is with “i”. Mr. Alvarez asked about item “e.” Chairman Tadema-Wielandt said that’s the floodplain ordinance permit. He asked if Mr. Alvarez suggested that it is required. Mr. Alvarez said it is. Chairman Tadema-Wielandt said the Board ought to determine if the application is complete, and go down the list in 16D1.

Item 16D1a – Completed Application - Chairman Tadema-Wielandt said the complete application is Exhibit 2-SZ (at this point he altered the numbering of the exhibits to show the number is followed by the letters “SZ”.) He said according to the table of contents, the first item is an application form from the Town of Lamoine for a Shoreland Zoning and Floodplain Permit. Mr. Bearor said this is the only form available to the applicant. He said on the 2nd page the information is that for a flood zone application information, and the information has been inserted. He said this is items “a” and item “e” in the checklist. Chairman Tadema-Wielandt asked if this is the 6-page form from the town. Mr. Bearor said it is.

Chairman Tadema-Wielandt asked Mr. Hunt if there is anything missing from this portion. Mr. Hunt said he would like to ask Mr. Alvarez for his thoughts on the Flood Zone. He said he sees the application has the flood zone information. Mr. Alvarez said the town has a floodplain management ordinance and it requires three permits and the Pettegrows don’t have any of them. He said he found out about that a month ago and asked why. He said Mr. Marckoon told him they (the Pettegrows) never applied for them. He said there is no way the Planning Board could have granted a Shoreland Zoning permit in the absence of a Floodplain permit. Mr. Hunt asked Mr. Alvarez if he was talking about a floodplain permit for the parking lot. Mr. Alvarez said no, for the house, the filled in area, and the expansion of the building. He said that requires an application and an issued permit from the Planning Board not the Code Enforcement Officer.

Chairman Tadema-Wielandt said the construction application appears to be for both the Shoreland and Floodplain Permit. Mr. Alvarez said that’s the latest permit, and it wasn’t filed. Mr. Bearor said the application was filed on October 2, 2003. Mr. Alvarez said the Planning Board never granted the Floodplain Management permit. Chairman Tadema-Wielandt said it’s his opinion that if there is a floodplain management permit required, the only thing the Board is considering is whether one exists for the parking lot. He said they could not go back to the house or the tank house because they are not the subject of this appeal. Mr. Alvarez said the Shoreland permit should not have been issued in the absence of the flood permit. He said the ordinance required the permits three years ago. Chairman Tadema-Wielandt said section 14 of the Shoreland Zoning Ordinance talks about development, and the parking lot falls within that definition.

Mr. Bearor said the Pettegrows did apply for the floodplain permit. He said the Planning Board insisted that they go back and determine the floodplain elevation. He said the Planning Board was aware of it, and wanted the floodplain information. He said they gave the Planning Board this application completing both the floodplain and shoreland zoning components.

Mr. Bearor said regarding the residence, Mr. Alvarez said for the first time tonight, it required a floodplain permit. He said Mr. Alvarez is wrong, and the residence does not need a floodplain permit because it’s outside the flood zone. Mr. Alvarez said that was not correct. Mr. Bearor said a structure outside the flood zone does not need a permit. Chairman Tadema-Wielandt said that does not affect what the Board does tonight – they’re not interested in the house. He said he’s not going to hear more about where the house is located, and it’s beyond the scope of this appeal. Mr. Alvarez said a flood permit is required in the application and asked where it is. Chairman Tadema-Wielandt said he and Mr. Bearor say this is a concurrent application for a floodplain permit and a shoreland zoning permit. He asked Mr. Alvarez if he was suggesting the applications could not be concurrent. Mr. Alvarez answered yes. Chairman Tadema-Wielandt asked if there is not an existing permit, is the application incomplete. Mr. Alvarez said yes.

Chairman Tadema-Wielandt said the Board was starting the completeness review. He said item D1a requires a completed form. He asked if the 6-page form is complete. He said he didn’t see anything in this application which is part of Exhibit 2-SZ that is required, that isn’t present. Mr. Hunt said under attachments on page 3, one of the items, which is circled is Board of Appeals decision. He said there was an earlier Board of Appeals decision in connection with the project. He said this Board issued a decision and sent it back to the Planning Board for Shoreland and Site Plan Review. He said that decision in April 2003 was an amended decision and should be part of this application. Chairman Tadema-Wielandt asked when the decision was made. Mr. Hunt said in February 2003. He said he and his clients asked the Appeals Board to reconsider its decision; the board listened to the tapes of its deliberations and determined the written decision needed to be amended, and issued that amended decision in April 2003. Chairman Tadema-Wielandt asked what that Appeals Board decision related to. Mr. Hunt said the first shoreland application submitted for this parking lot. He said the Pettegrows were represented by different counsel. He said the Board of Appeals determined the Planning Board, in granting the Shoreland Permit, had improperly defined the scope of the information submitted, and remanded it back to the Planning Board and ordered the Site Plan Review application. He said the Pettegrows submitted both the Site Plan Review and Shoreland Zoning applications. He said the prior Board of Appeals Decision should have been part of the application. Mr. Fenton noted that information was contained in Exhibit 1-SZ, in the very back section. Chairman Tadema-Wielandt said as to this procedure, the Board of Appeals decision is a part of it.

Chairman Tadema-Wielandt said on pages 5 and 6 of the application are requirements for elevations and a plot plan. He said the application says to “see attached”. He asked if that is represented by the complete plan in Exhibit 2-SZ. Mr. Bearor said it’s the same plan as used in the Site Plan Review hearing. Chairman Tadema-Wielandt read the title of the plan that said it was for Site Plan Review and Shoreland Zoning. He said this satisfies the requirement of the application form.

Mr. Alvarez asked if the form was signed by the Code Enforcement Officer. Chairman Tadema-Wielandt said it was, by the then CEO as received on October 21, 2003. Chairman Tadema-Wielandt moved to find the application form filled in and filed with this board, as attachment “A” in Exhibit 2-SZ is a completed application. Mr. Wuorinen 2nd. Vote in favor was 4-0.

Item 16D1b – Detailed Plot Plan - Chairman Tadema-Wielandt said he would guess it’s Mr. Bearor’s position that the plan satisfies that requirement. Mr. Bearor said the plan in the chairman’s hands has all the information required under 16D1b. Mr. Fenton asked if this should be a separate exhibit. He said sure, and marked it as Exhibit 3-SZ.

Chairman Tadema-Wielandt read the requirements of abutting landowners (the only abutters shown are Alvarez and Frederick); the boundary lines and perimeter footage (it appears they exist); all setback measurements (it appears they are shown); and the floodplain boundary lines. He said he saw the floodplain boundary line, and it appears that none of this parking lot is within the flood hazard plain.

Mr. Alvarez said it (the floodplain boundary) was wrong. He said the back of the house is within the gully, which is open to the sea. Chairman Tadema-Wielandt asked if Mr. Alvarez was suggesting the plan was incorrect in regard to the floodplain boundary. Chairman Tadema-Wielandt said he didn’t know whether it was within the purview of the board to determine whether the boundary is accurate. He said it was Mr. Becker’s plan, prepared under his supervision, and he’s far more knowledgeable about the flood zone than the Board. Mr. Alvarez said at the first meeting, Mr. Marckoon produced the Flood Rate Maps and they were entered as an exhibit. Mr. Marckoon said he didn’t believe they were an exhibit. Mr. Alvarez said Mr. Marckoon brought them out and waved them around. Mr. Marckoon said he didn’t recall waving anything around. Mr. Alvarez said the maps would show where the boundary really is.

Mr. Bearor said if it gets to the point of substantive review criteria, he would maintain the plot plan is accurate. Chairman Tadema-Wielandt said he agreed, and asked others on the board whether they disagreed that a floodplain boundary line is shown on the plan. None did.

Mr. Wuorinen asked if there was any response from the engineer. Mr. Becker said he’s confident the floodplain boundary is shown correctly on the plan. He said the gully is moot. He said the boundary is determined by the federal government, and gullies are either in or not in the floodplains. He said he’s seen houses that are 5-feet below the flood elevation, but not in the floodplain. He said he recently obtained a letter of map amendment for a house that was located 130-feet above the floodplain. He said the surveyor put his seal on the plan, and he would be happy to defend it. Chairman Tadema-Wielandt asked if this is done by an overlay. Mr. Becker said that’s the only way to do it. Chairman Tadema-Wielandt asked whether, when an ordinance requires a floodplain boundary, whoever prepares the plan is showing what the government considers to be the floodplain. Mr. Becker said that’s the only way to do that. He said there are other references in the exhibit. He said the floodplain is where it is. He said the house is outside the floodplain boundary. He said there is no impact on where the line is, that’s a statutory line. Chairman Tadema-Wielandt said this is not a permit for a house, but for a parking lot, and the parking area is not close to the boundary. He said for the Board’s purposes, it is shown on the map. He said it is not up to the board to determine competence of the person who prepares the plan. He said the Board has determined the floodplain boundary line is shown on this plan.

Chairman Tadema-Wielandt said in regard to sewage plans, none would be required. He said the plan shows roads, and asked if the site elevation above normal high water is on the plan. Mr. Becker said the topographic information is shown, as is the marked 100-foot setback, along with a marked floodplain and a letter regarding the building, along with the high water mark. Chairman Tadema-Wielandt asked if that letter makes reference to the elevation above the normal high water mark. Mr. Becker said there is a topo in the region of importance. Chairman Tadema-Wielandt said he’s not seeing it on the plan. Mr. Becker gave the various contours. Chairman Tadema-Wielandt said he now sees them. Mr. Becker came to the table and showed the board the contours. (Audio Tape 1-B ends here).

Mr. Becker said the flood elevations are shown as above “NGVD”. Chairman Tadema-Wielandt said the plan requires the front and side elevations. Mr. Becker said that is of a structure. He said he had a cross-section as the side view of the parking lot. Chairman Tadema-Wielandt asked if there was a reason why the “15” should not represent the side elevation above normal high water. Mr. Becker said that’s what it was in 1929. He said the normal high water mark is higher than zero. He said contours are shown on NGVD, and elevations above high water would be different. Chairman Tadema-Wielandt asked if there could be negative elevations above high water. Mr. Becker said that could occur, but the elevations are all positive.

Mr. Alvarez said when a surveyor draws a plan, the shoreline drawn is mean high water. He said that’s the extent of the Shoreland Zone jurisdiction. Chairman Tadema-Wielandt said he could now see after Mr. Becker pointed them out, a considerable number of contour lines on the plan. He said there could not be just one number in the middle of the structure, as the parking lot is not all one elevation. He said at least half the lot is at elevation 15 and the rest is …Mr. Becker said between 14 and 15. Chairman Tadema-Wielandt said at least 14. He said for the Appeals Board’s purpose, the site elevation is shown above normal high water. He said later on the Board could get to what inaccuracies there might be. He said he believes the plan shows it.

Chairman Tadema-Wielandt said the ordinance requires front and side elevations, and he believes the cross section shows that at the top of the plan. He said the application is supposed to include form HHE200. Mr. Becker said that’s a septic system form, and that’s not applicable.

Chairman Tadema-Wielandt said the application is required to contain a floodplain ordinance permit, including a letter from a surveyor. Mr. Becker said the letter is in attachment E. Chairman Tadema-Wielandt said the board has been to this point earlier. He said the application does not include a permit. He said it’s an application in addition to the Shoreland Zoning and also an application for a Floodplain Ordinance permit. He said he saw the letter from Mr. Salsbury. Mr. Bearor said it’s a letter dated April 11th, attachment E to Exhibit 2-SZ.

Chairman Tadema-Wielandt said subsection “f” is required in cases where construction occurs within 125-feet of normal high water. Mr. Becker said that is the case here. He said attachment E states that stakes have been placed at the 100-foot setback. Chairman Tadema-Wielandt asked if this is so the Code Enforcement Officer can determine the setback. Mr. Becker said he didn’t know, but they did it.

Chairman Tadema-Wielandt said a signature is required and it’s there. He asked if the appropriate fee was paid. Mr. Becker said a copy of the check is attachment F.

Chairman Tadema-Wielandt said an Environmental Impact Study does not appear to apply, as it is not for a principle structure. Mr. Alvarez said it is a principle structure, and the Shoreland Zoning Ordinance requires a permit for that. Chairman Tadema-Wielandt said if one looked at the definition of principle structure, and suggested it might be a residence, but not a shed. He said a parking lot is accessory to the principle use. He said the principle use is the lobster pound or the tank building, and the parking lot is only accessory to that, and there only because the principle structure is there.

Chairman Tadema-Wielandt said no plumbing permit is required, because there is no plumbing. He said number three requires prior to a building permit, a floodplain permit is required, and again this is one of the two permits this application is for.

Chairman Tadema-Wielandt said that completes the review of subsections a-through-i that were required to determine whether the application is complete. He said there is no floodplain ordinance permit included with the application. He asked if that makes it incomplete. Mr. Bearor said the application for the Shoreland Zoning Ordinance permit and the Flood Hazard permit were filed jointly. He said he did not envision a two-step process, and applied for both at the same time. He said they came to the conclusion that application section 3 said the floodplain permit was required prior to building. He said that they envisioned applying for it and it being granted along with the Shoreland permit, and if it isn’t granted, you can’t get a building permit. He said that’s where the rubber meets the road, and the CEO could not grant a building permit without the flood hazard permit. He said they were aware of the need, and it was shown by the application. He said he thinks the word permit means permit application, and if you don’t get a flood hazard permit, you don’t move past “go”. He said otherwise, he thinks the permitting process has been misunderstood by applicants here for years.

Mr. Hunt said he thinks a flood hazard permit could be granted at the same time as the Shoreland Zoning permit, but an applicant needs both before they could build. He read the paragraph, saying no building permit could be issued unless the Floodplain ordinance is met. He said he thinks it could be issued jointly with the Shoreland Zoning permit. He said he did not disagree with that. Mr. Alvarez said the Planning Board did not do its job properly. He said the Planning Board chair waved documentation in the air saying it (the floodplain ordinance requirement) was met. Mr. Alvarez said he didn’t know what the chairman was waving.

Mr. Wuorinen requested a break at 9:03 PM, and it was granted. The board reconvened at 9:15 PM

Chairman Tadema-Wielandt said the issue is whether the application before this board is complete or incomplete because when the application was filed originally it was not accompanied by a Floodplain Management Ordinance permit. He said for the Appeals Board’s purposes, where they’re acting as a Planning Board, and it seems the appeal taken was to the issuance of a Shoreland Zoning permit, and there is no appeal taken from the issuance from the Floodplain permit, the previously issued and not appealed from Floodplain permit satisfies that criteria.

Mr. Wuorinen said this is a dual application for Shoreland and Floodplain, and feels the board could consider the application complete. Mr. Fenton said he concurred with Mr. Wuorinen, and it says in #3 last sentence that the floodplain permit must be obtained before issuance of a building permit and that does not infer it is required for a completed application. He said he believed that would be something the town would issue. He said it’s not part of the appeal, but is part of the town ordinance. He said they’ve applied for a permit, whether or not one was issued by the governing town authority is not the subject of this appeal.

Mr. Hunt said the completeness issue is addressed in 16d1a-i. He said plumbing and floodplain permits are not part of the completeness review. He said a building permit is not issued if they’re not obtained. He said a board could grant a flood permit and a shoreland permit, but you don’t have to have a flood permit prior to obtaining a shoreland permit.

Mr. Alvarez asked if the Appeals Board could issue a floodplain permit. He said he read the manual, and it deals with jurisdiction. He said no one has appealed the floodplain permit, and the jurisdiction doesn’t start until an appeal is launched. Chairman Tadema-Wielandt said he agreed. He said since there was no appeal taken over the floodplain permit issued, that one was granted. He said it was applied for concurrently. Mr. Alvarez said he didn’t think the Planning Board was aware of that. Chairman Tadema-Wielandt said the form speaks for itself, and it was an application for a Shoreland Zoning and Flood Hazard permit. He said the appellants did not appeal from a flood hazard permit. Mr. Alvarez said they didn’t know anything about the flood hazard permit. He said the Planning Board chairman held up documentation during their review of items a-through-i. Chairman Tadema-Wielandt said whether right or wrong, no appeal was taken. He said his interpretation was that the application was approved. Mr. Hunt said there was no decision from the Planning Board on the floodplain application, so there was no appeal. He said there was no discussion of flood hazard, there was no finding of fact, and no decision. He said it was not before the board.

Mr. Wuorinen said this board could decide this application before it is complete without getting into the matter of whether the Planning Board should have granted a floodplain permit. He moved to find the application complete. Mr. McDevitt 2nd. Vote in favor was 4-0.

Mr. Bearor said the primary discussion is the plan in Exhibit 3-SZ. He said the applicable standard for review is found in section 16E3, items a-though-i. He said it has been helpful to go through the Site Plan Review as the information and findings have a bearing on many if not all of the criteria. He referred to the Planning Board findings in Exhibit 1-SZ, page 7. He said the Planning board numbered its review criteria instead of lettering them a-through-i.

Mr. Bearor said they believe the application will maintain safe and healthful conditions. He said the proposal is to provide for safe turning and parking for vehicles that service the business. He said the net result reduces trips. He said a storm water runoff and management plan is provided. He said there is no adverse impact on the surrounding area as a result of the parking lot construction. He said there is a net reduction in the number of vehicles in and out, and he would prefer to respond to questions.

Chairman Tadema-Wielandt said the Planning Board’s minutes indicated that one member felt the use was an expansion of a non-conforming use, and it expands it within the 100-foot setback. Mr. Bearor said one board member maintained a portion of the existing road (shown in light blue on the plan, the new construction is shown in dark blue) was within 100-feet of the high water mark. He said Planning Board member could not separate the parking lot from the driveway. He said Planning Board member called it a non-conforming use, and he believes it’s not a use, but a structure. Mr. Bearor said it would be non-conforming if the structure were within 100-feet of the high water mark, but none of the development was proposed within 100-feet.

Mr. Bearor said they could enlarge the parking area away from the shore. He said the Planning Board member was suggesting that he could not separate the driveway and road, and it was an increase in a non-conforming use. Mr. Bearor said it’s not an increase in a non-conforming structure as it was outside the 100-foot zone.

Mr. Alvarez said he didn’t see a problem. He said Planning Board chair Gordon Donaldson brought that up, and the road was there before the Pettegrows bought the place, and the road had been there since 1981. He said he had no problem with that. Chairman Tadema-Wielandt asked Mr. Alvarez if he felt there was any adverse impact on health & safety. Mr. Alvarez said no. Mr. Bearor said the pound is of value to his clients, and they would protect the water.

Chairman Tadema-Wielandt asked if someone would move to find that the project would maintain safe and healthful conditions. Mr. Fenton so moved. Mr. McDevitt 2nd. Vote in favor was 4-0.

Mr. Bearor said the next review criterion is that the project will not result in water pollution and sedimentation. Mr. Becker said he’s not sure what the board needs to hear. He said the parking lot is fairly flat, and there are no big erosion problems. He said it’s crowned and vegetated. He said there is no erosion or sedimentation observed, and everything is stabilized. He said when it was built, the contractor put up silt fencing. He said he didn’t think anything about the parking lot would result in a problem.

Chairman Tadema-Wielandt said the way he reads the standard is that this relates to surface waters. He asked if that includes both salt water and freshwater wetlands. Mr. Becker said he’s unsure whether the ordinance means wetlands. He said there were measures taken to protect wetlands, and the Department of Environmental Protection (DEP) alteration permit takes that into account.

Mr. Wuorinen asked what measures were taken in addition to crowning the lot. He asked what would be appropriate for a diesel spill. Mr. Becker said they store “Speedy-Dri” and other cleanup materials on site. He said a spill would be contained to a small area, and the gravel could be removed if needed. He said the grade of the parking lot limits the oil migration.

Mr. Alvarez said during the Site Plan Review hearing it was stated the parking lot drains into the pound. He said it doesn’t, it drains into a ditch, and that’s a potential pollution problem. He said that’s where they wash their trucks, and the runoff goes into the ditch, and then into Partridge Cove. Chairman Tadema-Wielandt asked where the ditches are located. Mr. Alvarez came to the table and pointed them out on Exhibit 3-SZ. Mr. Hunt asked Mr. Alvarez to describe the locations on the plan. Mr. Alvarez said the main ditch runs East and West parallel with the property lines. He pointed to where the Pettegrows do the pressure washing on the North end of the parking lot. He said it’s a potential for pollution. Mrs. Pettegrow asked Mr. Alvarez to tell her where they pressure wash the trucks. He pointed to the plan in the north end of the parking lot. Mrs. Pettegrow told Mr. Alvarez he was “an outright liar”. A discussion followed on where washing occurs.

Mrs. Pettegrow said they have a garden hose. Chairman Tadema-Wielandt asked Mr. Becker whether pressure washing takes place where Mr. Alvarez said it does, might that contribute to pollution in the cove. Mr. Becker said it’s difficult to picture how dislodged sediments from the truck could make it to the ditch. He said water does. He said if that was occurring one would see evidence in the parking lot. He said there was none seen on the site visit. He said with a grade of less than 1%, it would be difficult to transport that sediment across the parking lot. Mr. Wuorinen said there might be substances used in the washing process that might attach themselves to water. Mr. Becker said there are no detergents used, just water and force. Mrs. Pettegrow said that was correct, there is no soap.

Chairman Tadema-Wielandt asked how far it is from the edge of the parking area closest to the ditch to where the ditch empties into Partridge Cove. Mr. Becker said about 300-feet. Chairman Tadema-Wielandt asked if that’s how far pollutants would have to travel. Mr. Becker said yes. He said in the first 150-feet there is not much of a grade in the ditch, and most of the drop occurs in the last 50-feet. He said a lot of vegetation would act as a trap. He said there is no evidence sediment has discharged into the parking lot or the ditch.

Chairman Tadema-Wielandt asked if there was pressure washing taking place prior to the parking area construction. Mrs. Pettegrow said she didn’t think so. She said they didn’t have a pressure washer there then. Chairman Tadema-Wielandt asked the purpose of the pressure washer. Mrs. Pettegrow said it was to take the dirt off the trucks. She said there are no chemicals used. She said their livelihood depends on water quality, and contaminants could destroy the lobsters.

Chairman Tadema-Wielandt asked if they pressure wash a diesel truck with residue, could the contaminants released be trapped by the parking lot surface. Mr. Becker said if there were any discharge it would show during the site visit, and there was no evidence. He said diesel spillage tends to vent, and the spill occurs at the filling station, and the minimal amount left would dissipate into the air. He said the petroleum content of a stain is very small, and can’t really spill anywhere. He said there is no evidence of that in the cove, and it’s not in the Pettegrows interest to allow that. Chairman Tadema-Wielandt said he was not implying that it has, but he must debate whether it will.

Mr. Becker said the site has existed for some time. He said if there was evidence that it was not handled properly, there would be evidence, and there is none. He said there is no reason to believe it would be a problem in the future. Chairman Tadema-Wielandt said the Board normally doesn’t work retroactively.

Mr. Wuorinen moved to find this review criterion is met. Chairman Tadema-Wielandt said perhaps the Appeals Board should adopt the Planning Board finding that this proposed use will not result in water pollution, erosion, or sedimentation of surface waters. Mr. Wuorinen said he preferred to go back to the ordinance and quote the ordinance finding. (Audio Tape 2-A ends here). Chairman Tadema-Wielandt asked if Mr. Wuorinen didn’t want to say Planning Board. Mr. Wuorinen said they could use the ordinance language.

Chairman Tadema-Wielandt said he would move the land use activity described by the Pettegrows will not result in water pollution, erosion and sedimentation to surface waters. Mr. Wuorinen 2nd. Vote in favor was 3-1, Tadema-Wielandt opposed.

Mr. Bearor asked the board rule the next criterion does not apply, or rule positively that they’ve provided for adequate disposal of wastewater. Chairman Tadema-Wielandt said that standard goes into a Subsurface Wastewater Disposal (SSWD). Mr. Bearor said that’s how he interprets it. Chairman Tadema-Wielandt said if the drafters of the ordinance had said storm-water, they would have stated storm-water, and it was his opinion it does not apply.

Mr. Alvarez asked if the product coming off the trucks would be wastewater. He said Anderson pressure washing comes in. Mrs. Pettegrow asked Mr. Alvarez when Anderson was there. She said Mr. Alvarez better have the facts to back his statement.

Chairman Tadema-Wielandt said he did not see a definition of wastewater in the Shoreland Zoning Ordinance. Mr. Wuorinen said this is a quasi-judicial proceeding, and people presenting testimony must tell the truth or be subject to penalties. He said it disturbs him to have conflicting statements in front of the board. He said there is no way to determine who’s truthful, and it leaves him up in the air.

Mr. Bearor said when terms are undefined, commonly accepted definitions are applied. He said he understands wastewater is water disposed of into a septic system or a public sewer as opposed to wash water or surface water runoff. He said he never thought when washing his car in the driveway that would be considered wastewater.

Mr. Alvarez said there are all kinds of studies that show one point source of phosphates is car washing. Mr. Bearor said he doesn’t dispute that, but this is not wastewater. Chairman Tadema-Wielandt said for the Board’s purposes, the first thing he though of when he read that section was that it doesn’t apply, as there is no structure or flush toilets. He said a majority of permits issued would have an SSWD system. Mr. Fenton said he felt the same way. Mr. McDevitt said he would classify this as gray water. He said wastewater could be runoff from rain contaminated with acid rain. He said any other could be gray water. He said it runs 300-feet and purifies itself before it reaches the creek.

Mr. Alvarez said the Shoreland Zoning Ordinance has more space devoted to parking lots than any other subject, and it all has to do with what comes off vehicles. Mr. Fenton said the septic waste disposal section refers to Maine wastewater disposal rules. He said the parking lot area of the ordinance refers to prevention of storm-water runoff.

Mr. Wuorinen asked how wetlands were considered and whether they were a water-body. Mr. Bearor read the definition of a wetland.

Chairman Tadema-Wielandt moved to find that this criterion which requires the proposed use will adequately provide for the disposal or wastewater will be found not to apply to this application in that the board’s understanding of wastewater is that which ordinarily would go into an SSWD. Mr. Fenton 2nd. Vote in favor was 4-0.

Mr. Bearor said the proposal would not have an adverse impact on spawning grounds, fish, aquatic life, birds or other wildlife habitat. He said they’ve discussed the standard that nothing would result in water pollution. He said since that’s a similar standard and suggests the project would not affect spawning grounds etc. He said he didn’t know if there were any spawning grounds.

Mrs. Pettegrow said they have deer there every day. She said there are all kinds of birds, porcupines, and wildlife all around there. She said there was no adverse effect. Mr. Bearor asked if there was any adverse impact on the lobster pound. Mrs. Pettegrow said no.

Mr. Becker said there are a lot of interesting things that occur. He said they’re interested in preventing the transport of any pollutants, and the flatness helps protect fish and aquatic life. He said the gravel parking lot attracts birds; the edge community in the woods with grass and a covered forest nearby attract more deer. He said if the parking lot were not there, there would be less forage for wildlife. He said what they’re opening might encourage wildlife. He said salt might also encourage deer. He said he didn’t see how the project would impact wildlife. Chairman Tadema-Wielandt asked if it has altered some of the wildlife habitat, some of the aquatic life. Mr. Becker said by it existing, it decreased the basis layer, so some plants would no longer exist. Chairman Tadema-Wielandt asked if there were wetlands filled. Mr. Becker said yes. Chairman Tadema-Wielandt asked if the DEP permit addressed that. Mr. Becker said it had to, but he didn’t know what it says. Chairman Tadema-Wielandt asked if this were an issue the DEP would take that into consideration when deciding to issue the permit. Mr. Becker said yes. Chairman Tadema-Wielandt asked if the issuance of the DEP permit has decided this activity has not had an adverse impact. Mr. Becker said the DEP has to do that based on their rules and opinion.

Chairman Tadema-Wielandt asked if there were a motion that the proposed project would not impact spawning grounds, aquatic life, fish, birds, or other wildlife habitat. Mr. Fenton so moved. Mr. Wuorinen 2nd. Vote in favor was 4-0.

Mr. Bearor said he believes the application does not have an impact on shore cover or visual impact and does not interfere with points of access to inland or coastal waters. He said it’s flat and there are no structures to impact the view or access points, and it’s not public property. He said the proposed work is greater than 100-feet from the shoreline, and it’s flat, so there is no impact on aesthetics.

Mr. Wuorinen asked what visual impact parking semis and boxes might have. Mr. Bearor said vehicles parked on this property historically can’t be seen from some vantage points, and whether the existing building or other shorefront cover blocks their view, but from the few times he’s walked the property, he hasn’t noted the parking of trucks as standing out. He said it’s fairly well screened. Mrs. Pettegrow said from the shore it’s not highly visible, the trucks are behind the building when viewed from the shore side. She said trees were planted and they intend to plant more once the issues are resolved to help produce evergreen screening to keep Mr. Frederick from seeing trucks when he exits his driveway. Mr. Bearor said that’s a view from the rear of the property. Mrs. Pettegrow said the parking lot is in the same configuration as Mr. Alvarez applied for years back.

Mr. Becker said the question has to do with cover, and there has been no change to visual impact or access. He said he didn’t understand how Mr. Wuorinen’s question relates to the standard. Chairman Tadema-Wielandt said what it’s designed to protect is visual points of access to coastal waters and actual access to coastal waters. Mr. Becker said he didn’t see how they’ve had any impact on that. Chairman Tadema-Wielandt said he didn’t see that either. He said there’s not even an impact on the view from the water. He said that’s not what this standard is designed to deal with.

Chairman Tadema-Wielandt asked what shore cover deals with. Mr. Becker said the vegetation hasn’t changed. Mr. Alvarez said that has to do with lot clearing. He said no more than 25% of the lot could be cleared, and they’re way over 25%. Mr. Bearor said the clearing in this project is more than 100-feet from the water. He said he wasn’t sure shore cover extends beyond that. He said he believed the chairman’s interpretation of this that it not obscure visual or coastal access is correct. He said they’re not removing any shore cover within 100-feet of the water.

Chairman Tadema-Wielandt asked Mr. Alvarez about the clearing standard. Mr. Alvarez said the lot coverage standard says 25% can’t be exceeded. He said this project puts the total at about 60% of the shoreland portion of the lot is cleared. Chairman Tadema-Wielandt asked if that issue was the subject of the re-vegetation efforts agreed to. Mr. Alvarez said the re-vegetation was to alleviate the lot coverage problem, and the clearing standard is an entirely different standard. Mr. Bearor said that issue could be addressed at the proper time. He said total lot coverage is less than 21%. Mr. Becker said the cutting limit says 40% in the Shoreland Zone. He said he didn’t believe they’ve exceeded that. Mr. Frederick said that’s part of standard “i” and this might be premature.

Chairman Tadema-Wielandt moved that based on the information given, the proposed use will conserve visual and actual points of access to inland and coastal waters, and have no effect on existing shore cover. Mr. McDevitt 2nd. Vote in favor was 4-0.

Mr. Bearor said the project would protect archaeological and historic resources. He said none are designated in the Comprehensive Plan, and he’s not aware there are any there. Chairman Tadema-Wielandt asked if anyone had information regarding this. There was no response. Chairman Tadema-Wielandt moved that since there is no evidence there are archaeological or historic resources on this, the particular criterion does not apply. Mr. McDevitt 2nd. Vote in favor was 4-0.

Mr. Bearor said the project would not adversely affect commercial fisheries. He said it’s not in the Commercial Fisheries Maritime Activities (CFMA) Zone and is in harmony with commercial fisheries in that it purchases lobster. Mr. Alvarez said he had the clearing standard. Chairman Tadema-Wielandt moved that because the location is not in the CFMA Zone, that the provision of this criterion does not apply. Mr. Wuorinen 2nd. Vote in favor was 4-0.

Mr. Bearor said the proposed project would avoid problems associated with the floodplain. He said the entire project area is located outside the floodplain; therefore there is no adverse effect upon floodplain areas. He said he contends that because this is outside the floodplain, they would not create any problems within the floodplain. Chairman Tadema-Wielandt asked for other comments about that standard, and received none. Chairman Tadema-Wielandt moved to find that based on the information provided, the proposed use would avoid problems with the floodplain. Mr. Wuorinen 2nd. Vote in favor was 4-0.

Mr. Bearor said the next criterion section (i) would take about an hour. Chairman Tadema-Wielandt said the Board might defer the approval of minutes at the net meeting. He said at 10:40 pm that the Board could adjourn. Mr. Wuorinen moved to adjourn until a time certain. Chairman Tadema-Wielandt said he needed to designate that time. There was a short discussion about adequate notice provision and publishing notice of the next meeting in the newspaper. The Board decided to reconvene at 6:00 PM on Tuesday, November 30, 2004.

By consensus the Board adjourned the meeting at 10:44 PM.

Respectfully submitted,

Stu Marckoon, Secretary