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Lamoine Board of Appeals

Minutes of June 9, 2008

Chairman Griff Fenton called the meeting to order at 7:03 PM

Present were: Appeals Board Members Reginald McDevitt, Nicholas Pappas, James Crotteau, Merle Bragdon, Hancock “Griff” Fenton, Jay Fowler; Secretary Stu Marckoon, Appellants Robert & Colene Sharkey, Deputy CEO Michael Jordan , CTV Operator Matthew Fickett, Asst. Town Clerk Kathleen DeFusco and Selectman S. Josephine Cooper .

Consideration of Minutes – Mr. McDevitt moved to approve the minutes of February 4, 2008 as written. Mr. Pappas 2nd . Vote in favor was 5-0.

Robert Sharkey, on behalf of petitioners, vs. Lamoine Board of Selectmen

Chairman Fenton said he received the package in the mail and he assumes the appellants are listed on the attached petition. He said the first determination for the Board is whether the Board has jurisdiction. Mr. Fowler said he didn't know why the Board would not. Chairman Fenton said he reviewed the statutes and Mr. Sharkey has two avenues he could pursue. He said one stands under home rule, and a Superior Court Justice in York County recently ruled on an identical case (Lemay vs. Town of Berwick ). He said the decision states specifically the manner in which the appellant had to run an appeal.

Chairman Fenton said he was not an attorney, but 30-A MRSA §2521(4) has the applicable section that if a petition is not approved, the petitioners may redress that by going through a notary. He said the notary would verify the signatures and call for the town meeting. He noted the decision in LeMay vs. Town of Berwick was dated July 3, 2007. He said that got his attention because a judge decided it in the past year. He said the case puts the board in a quandary of how to handle this appeal. He said he was unsure if home rule sections applied, and the Board should get some guidance.

Appellant Robert Sharkey said he realized that they could go to a notary, but that would mean they would have to gather petition signatures again. He said the notary could call the town meeting. He said the case could also be taken to Superior Court. He said it seemed the more prudent way would be to go though every avenue of the town.

Mr. Crotteau said he thought the primary purpose of the Board of Appeals was to decide on permits and land use issues. He said he didn't know if there was anything else that allows the Board to hear anything else. He said if the Board has the authority to act in place of the Selectmen, so be it, but he didn't think the Board had that authority. He said he thought the Board of Appeals only had the authority to review decisions of the Code Enforcement Officer and the Planning Board.

Chairman Fenton said he researched the question and found the Board of Appeals has jurisdiction to appeal decisions of a Governmental Body, and most of those involve land use issues. He said the duty of the Board of Appeals is spelled out in 30-A MRSA. Chairman Fenton read from 30-A MRSA § 2691(4). Mr. Crotteau asked what the Selectmen had created and asked Selectman Cooper what was in place. Mrs. Cooper said she was not on the board when the Board of Appeals was created. Mr. Bragdon said the Board was created through the Zoning ordinance. Chairman Fenton read again from 30-A MRSA §2691.

Mr. Crotteau said the town tells the Board of Appeals and thought the town said the Board could hear land use issues. He said if the ordinance doesn't say the Appeals Board could hear other issues, he didn't know where the authority would come from.

Chairman Fenton said the jurisdiction is a little hazy. He said he didn't know if the board needs to get advice. He said he doesn't want to proceed if the Board has no jurisdiction on this. He said maybe the town attorney and the town fathers need to be consulted. Mr. Crotteau says the question is what the town has granted the Board of Appeals the authority to do. Mr. Fenton says if the town has not, we're wasting everyone's time.

Mr. Fowler asked if something similar had happed during a prior Board of Selectmen. Mr. Marckoon said there was a similar case when a petition was presented by folks who wanted a re-vote on a school bond referendum. He said the Selectmen at that time declined to re-vote, but there was no question about jurisdiction of the Board of Appeals because no appeal was filed.

Mr. Crotteau asked who the town attorney was. Mr. Marckoon answered it was Tony Beardsley. Mr. Fenton asked if he helped the Selectmen on this issue. Mr. Marckoon said there are times when it's not clear who the town attorney represents. Mr. Fenton said there has been no information from the town, only the paperwork from Mr. Sharkey.

Mr. Bragdon asked if the Board has any authority outside of the written ordinances of the town. Mr. Fowler said the Board needs to know what authority it has before diving in too deep.

Mr. Pappas asked Mr. Marckoon about contact he'd had with Maine Municipal Association (MMA). Mr. Marckoon said he had done so – but only in the petition process, not on the question of jurisdiction. Mr. Pappas said MMA advised the Selectmen could deny the petition. Mr. Marckoon said that was the gist of the message from MMA. Chairman Fenton asked if that was also the opinion of the town attorney. Mr. Marckoon said the town attorney has not been contacted in regard to the case.

Mr. Crotteau said the town attorney should answer whether the Board of Appeals has jurisdiction in this case. Mr. Fowler said he agreed the Board doesn't have enough information. Mr. Marckoon advised that the Appeals Board manual does have a section that addresses jurisdiction. Mr. Crotteau summarized the section.

Chairman Fenton said he didn't see how contacting the town attorney would take much time. He said the Board could have an opinion and that would be a wise way to handle this question. He said he didn't mean to delay Mr. Sharkey's time. He said a quick reply would then allow Mr. Sharkey to pursue alternatives. Mr. Crotteau offered to compose the questions to the town attorney.

Mr. Sharkey said he would like to have it done right. He said this is not a land use appeal, but an administrative appeal of a decision of the municipal officers. He says the petitioners' attorney, Eric Stumpfel, believed the Board of Appeals could hear the case. He said the Town Attorney could contact Mr. Stumpfel. Mr. Sharkey requested that Chairman Fenton be the person who contacts the town attorney.

Chairman Fenton said 30-A MRSA does grant broad power to hear administrative appeals, but he wants to make sure that power is not limited.

Mr. Sharkey said the matter should not be titled “Sharkey vs. Board of Selectmen”. He said it's 126 people vs. the Selectmen. Chairman Fenton said he understood Mr. Sharkey was one of the petitioners.

Mr. Fowler said the Board has to be careful to get permission from the Board of Selectmen to give the Appeals Board authority to spend money for a lawyer. Chairman Fenton said he didn't think it would be in the best interest of the board to deny the request. There was a brief discussion about the town's policy in regard to contacting the town attorney.

Mr. Sharkey asked if there are certain people who can contact the town attorney without permission of the Selectmen. Mr. Marckoon said he would have to check the policy, but that certain boards and individuals may initially contact the town attorney and let the Selectmen know so long as it's a brief matter and does not involve great expense. Mr. Sharkey said he didn't recall the policy reading that way. Chairman Fenton said he would like to pursue the matter with the town attorney. Mr. Fowler asked when the next Selectmen's meeting would be held. Mrs. Cooper said on Thursday. Chairman Fenton said it could be requested at that meeting.

Mr. Sharkey said he wouldn't be surprised if the Selectmen turned down the Appeals Board. He said if that happened, he would pay for the attorney. Chairman Fenton said he had access to legal advice outside of the town attorney

Chairman Fenton said the Selectmen appoint the Board of Appeals and have a vested interest in making sure it runs smoothly. He said it's in the best interest of both the Selectmen and the Appeals board to know the proper information. Mr. Crotteau said if he were a Selectman he would want to know if the Appeals Board had authority to hear this matter.

Mr. Crotteau said he had drafted two questions. The first was whether a town ordinance grants the Board of Appeals the power to hear administrative appeals and if so, what type of administrative appeals may be heard. He said the second question was: may the Board of Appeals hear any appeals except those set out in town ordinances, and if so what additional types of appeals may be heard.

Chairman Fenton said a 3 rd question would be whether 30-A MRSA § 2691 is something pertinent to the Appeals Board's being. He said if the answers to the first two questions are affirmative that the Board may hear this, does §2691 prove to be the guidance on how to hear the case. There was a brief discussion about the meaning of Chairman Fenton's question. Mr. Fenton said the question should read “Does 30-A MRSA §2691 apply to the Town of Lamoine .”

Selectman Cooper said the Board of Appeals might have broader jurisdiction than the town ordinances. Mr. Crotteau said that was the purpose of his question – what other authorities does the Board of Appeals have. He said he wants to know if the Board of Appeals is allowed to do things other than the ordinance, what is allowed.

Mr. Bragdon said if the answers to questions 1 and 2 are affirmative, what does the decision that the Board of Appeals make have to do – he said the Board can't tell the Selectmen they have to do something. Chairman Fenton said the Appeals Board can only tell the Selectmen if they have made an error or not. Mr. Crotteau said in the case of land use, they could hear a case de novo to grant a permit, but that's a different type of animal than telling someone they're right or wrong.

Mr. Crotteau moved to submit the 3 questions drafted earlier to the town attorney pending the approval of the finances from the Selectmen. Mr. Pappas 2nd . Vote in favor was 5-0. Mr. Sharkey questioned why one person didn't vote. Mr. Bragdon stated that he was an alternate.

Chairman Fenton said it's his understanding that the matter of jurisdiction is under advisement. He said he didn't know when that opinion would be available. He said the Selectmen would be asked for approval on Thursday for permission to contact the town attorney. He said he didn't know how long it would take, but thought it might be fairly quick. Selectman Cooper asked if there were backup attorneys should there be a conflict.

After discussion about a next meeting date, Mr. Fowler moved to table the matter until June 23, 2008 at 7:00 PM. Mr. Crotteau 2nd . Vote in favor was 5-0.

There being no further matters, the meeting adjourned at 7:42 PM.

Respectfully submitted,

Stu Marckoon, Secretary