Lamoine Board of Appeals
Minutes of October 28, 2003
Larson v. Town of Lamoine

Board members present: Melody Havey, Nick Pappas, Jay Fowler, John Wuorinen, Warren Craft, Chris Tadema-Wielandt. Also present were the appellants John & Carolyn Larson represented by counsel, James Gallagher, Code Enforcement Officer John Holdsworth represented by counsel Tony Beardsley; Henry and Alice Atkins, Kathleen DeFusco, Gerry Ford, Glenn Crawford, Deborah Verrill, Jane Fowler, Rebecca Albright, Jo Cooper and Stu Marckoon.

Call to order by Melody Havey @ 6:30 P.M.

Review of Draft minutes of April 17, 2003: there was discussion re: Page 2 Issue: the words “tore down” were asked to be deleted.
Motion was made to accept minutes with the above amendment. Accepted 6-0.

At this point Ms. Havey reviewed the Board to determine if we had a quorum.
Ms. Havey asked Board members to speak to any recusal issues:

Mr. Wuorinen spoke on his ability to sit. Mr. Wuorinen cited a letter by Mr. Gallagher, which questioned his ability to sit. Mr. Wuorinen indicated that he felt he could sit as an impartial member. After discussion by the board in relation to effects of a possible appeal, and comments by board members, Mr. Wuorinen agreed to recuse himself from sitting on this appeal.

Mr. Fowler then spoke to his ability to sit impartially. Mr. Fowler indicated to the board members and the public which was present, that he also felt as though he could sit as an impartial member.

Mr. Gallagher then spoke to his position on Mr. Fowler’s ability to make an impartial decision, stating that he did not believe that Mr. Fowler could in fact act in this capacity.
As a result of the above discussion Ms. Havey asked for a vote of the remaining Board members on the subject. A motion was made that Mr. Fowler needed to recuse himself from the present proceedings. The motion was seconded and the vote was 4-0 to have Mr. Fowler recuse himself. Mr. Fowler then in fact recused himself from the appeal.

Mr. Tadema-Wielandt indicated that he “familiar” with the property but does not believe he has any “issues” that would prevent him from sitting on the case.

Ms. Havey then indicated that the notice of violation was given properly.

Mr. Beardsley then spoke and simply requested that the Board review the case impartially.

As a result of above discussion Ms. Havey indicated that we would move forward with the 4 remaining members of the Board and that we do in fact have a quorum.

Ms. Havey then reviewed the material presented to the Board for consideration.

Mr. Gallagher then stipulated to the following exhibits presented by the Town of Lamoine in its response to the appeal:
Exhibit # 1, Notice of violation
2nd notice of Violation
Exhibit # 2, Report of Code Enforcement Officer
Exhibit # 3, copy of “sticky note”, check and envelope
Exhibit # 6 Permit Application Log.
He also stipulated to the Shoreland Zoning Ordinance and the Building and Land Use Ordinance.

Mr. Gallagher objected to the remainder of the exhibits presented by the Town.

Mr. Gallagher then proceeded with his presentation/position:

Mr. Gallagher presented a Brief of Appellant

Mr. Gallagher reviewed the following Issues: Mr. Larson was not a CEO or a Deputy CEO during the period that the “screen house/clam shack” was worked on. He had no “special” knowledge during this period. He also indicated that the structure was in fact rebuilt.

Mr. Gallagher then went on to cite the “Juliano Case” which spoke to the validity of Building Permits. He noted that the Building in question stands on the same site. He also noted that it was not until 3 ½ years after its construction that someone complained.

Mr. Gallagher then questioned Mr. Larson. He questioned Mr. Larson about his “intent” to rebuild the old cabin. He asked Mr. Larson about his March 2000 contact with Rebecca Albright, the then CEO of Lamoine. He questioned Mr. Larson about the “content” of the discussion with Ms. Albright. The issue of the size of the building was discussed and how the measurements were gathered. He was questioned about filling out the application to “rebuild” the Cabin on March 28, 2000. Mr. Gallagher then offered Larson Exhibit #1, the building permit. Mr. Gallagher then presented a calendar of March 2000 as exhibit #5. Mr. Larson then testified to the condition of the Building and that based on that condition he “chose to tear it down” and rebuild. He did indicate he replaced the original stones from the foundation around the outside of the new building foundation. He indicated he replaced the stone foundation with a foundation of 4” blocks.

Mr. Larson also indicated at this point he was receiving mail at his “new” address. He also confirmed that the check he wrote to the town for $85.00 was for a building permit, Shoreland permit and flood permit. Mr. Larson testified that he demolished the building between March 27, 2000 and March 31, 2000. He went on to indicate that he received back the check with a “sticky note” on 4/10/00. Mr. Gallagher made the point at that time that there was no revocation of the building permit.

Mr. Larson then stated that Union River Builders rebuilt the building in May 2000. It took 2 days to rebuild. (It is now a screen house).

Mr. Larson then went on explain that he became a deputy CEO. At this point Mr. Gallagher then distributed a Land Use in Shoreland Zone Table.

Mr. Gallagher then noted #16 on the table. Mr. Larson then confirmed that this “fit” his building. Mr. Larson then confirmed that a CEO could issue a permit based on the table. Mr. Larson then stated that in Sept. 2002 he received a call from John Holsworth, the present CEO for Lamoine. He stated that Mr. Holdsworth then questioned him about the building in the Shore land zone. A copy of the building permit was then passed around for review. Pictures of the screen house were also then distributed for review. The Board then asked Mr. Larson several questions. They included questions about the sticky note, where he was living, the return of the check and the effect of the permit, etc.

Mr. Beardsley then had an opportunity to question Mr. Larson. He questioned Mr. Larson about the application, map and lot number, size of the building and several questions regarding repair vs. replace. There were then several questions and discussion about Mr. Larson’s statements made at a fall selectmen’s meeting. Fall 2002.

At a May 2003 selectmen’s meeting, Mr. Larson then admitted to being “untruthful” or “mis-spoke” regarding the repair vs. rebuild issue. Mr. Beardsley then continued to question Mr. Larson about the facts that occurred regarding his discussion with Mr. Holdsworth and Ms. Albright about the permit, filing fee etc¼ Mr. Larson indicated that he did not question the return of the fee or the sticky note. Mr. Gallagher asked Mr. Larson several more questions regarding his misstatements at the selectmen meeting.

Mr. Larson acknowledged he did in fact mis-speak due to a “defensive posture”. He claimed everything else he said was the truth. He also indicated he learned about the 50% rule after he became familiar with the codes.

There was further discussion about the building application log. Mr. Beardsley also asked several questions about the town Log and Mr. Larson’s subsequent knowledge gained as a deputy CEO.

Mr. Gallagher then questioned Ms. Alice Atkins a part-time resident of Lamoine and a neighbor of Mr. Larson. Ms. Atkins had no objection to the building.

Mr. Gallagher then called Mrs. Larson as a witness

It should be noted that all witnesses were sworn in at this time.

Mrs. Larson then testified that all the information her husband testified to was the truth. Mr. Gallagher then had Mrs. Larson describe the area which surrounds the screen house. They referred to a map drawn by Mrs. Larson.

Mr. Beardsley then had several follow-up questions for Mrs. Larson. These questions included facts regarding the issuance of the Permit.

Mr. Beardsley then had the opportunity to call Rebecca Albright, former CEO of Lamoine.

It should be noted that all of Mr. Beardsley’s witnesses were sworn in at this time.

Ms. Albright indicated she was the CEO for Lamoine from 1996 to 2000. She testified that she did indeed issue a permit to Mr. Larson. She also testified that she told Mr. Larson the building could be repaired in compliance with the 50% rule. She also indicated she told the Larsons that it could not be replaced. Measurement of the building was discussed.

Ms. Albright indicated that given the conversation with the Larsons and her subsequent review of the of the situation she returned the check. (based on the repair issue). She indicated that by voiding the issuance of the permit in the log she was in effect voiding the permit itself.

Ms. Albright was then asked several more question by Mr. Gallagher. Discussion of the issuance and revocation of the permit were discussed. The measurement of the building was then discussed again.

Mr. Beardsley then followed with several more questions one of which was the fact that Ms. Albright did in fact have a discussion with Mr. Larson about the 50% rule.

John Holdsworth then was called to testify. He indicated 1 year ago he went to the Larson home to discuss the complaint. Replacement of the building was discussed. Mr. Holdsworth indicated that Mr. Larson indicated to him he “repaired” the building. Mr. Holdsworth said he told Mr. Larson only the Planning Board has the right to issue a permit in a Shoreland zone. Mr. Holdsworth testified that the building was only 19 feet from the water. He measured the building at 16.4 by 18.5 feet. Issue of mis-speaking was again reviewed. Exhibit 11 was reviewed, a black and white photo of the structure. Mr. Holdsworth then stated in his opinion the building was indeed in violation of the Shoreland Zoning Ordinance and the Building and Land Use Ordinance. He also stated that it was also in violation because it was replaced not repaired.

Mr. Gallagher then had the opportunity to question Mr. Holdsworth. He reviewed the permit. They discussed the “sticky note”. Reviewed the picture of the building. Mr. Beardsley then provided a picture of the building for the board’s review.

Mr. Beardsley then called Jane Fowler as a witness. There was an objection to Mrs. Fowler testifying by Mr. Gallagher. The objection was overruled by Ms. Havey. Mrs. Fowler testified to her conversation with the Mrs. Larson in the spring of 2001. (Mrs. Fowler was reviewing permits). Mrs. Fowler testified she asked if there was a building permit and Mrs. Larson stated they did not need a permit for the building "down by the shore".

Mr. Gallagher then recalled Mrs. Larson. Mrs. Larson did not recollect the discussion with Mrs. Fowler.

Ms. Havey offered the opportunity for final remarks.

Mr. Gallagher then offered his final remarks/argument. In summary he argues that there was indeed a valid permit and that the time for action by the town is past.

Mr. Beardsley then made his final statements. In summary: he states repair not replace was the message given by Ms. Albright. He also argues that the Larsons consistently told everyone that the building was repaired not replaced.

Mr. Gallagher then spoke to the size of the building and that Ms. Albright made a mistake and that as a result Mr. Larson has lost his "rights" as a result.

Next hearing date was scheduled for November 7, 2003 at 6:30m P.M..

It was indicated to all present, by Ms. Havey, that the Board would make a decision that evening.

Adjourn was at 10:28 P.M. So motioned and seconded. Accepted 4-0.

Respectfully Submitted:

Nicholas H. Pappas

Approved April 13, 2004