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Lamoine Board of Appeals

Minutes - February 25, 2009 (Draft, subject to revision)

Chairman Hancock “Griff” Fenton called the meeting to order at 6:30 PM

Present were: Appeals Board members Reginald McDevitt, John Wuorinen, Nicholas Pappas, Hancock “Griff” Fenton, Merle Bragdon, Jay Fowler; Secretary Stuart Marckoon, Appellant Ronald Simons, and Deputy Code Enforcement Officer Michael Jordan

The meeting was televised and recorded by Lamoine Cable TV Channel 7.

Minutes of October 13, 2008 – Mr. McDevitt moved to approve the minutes as written. Mr. Fowler 2 nd . Vote in favor was 5-0.

Appeal – Ronald Simons

Mr. Fenton asked for an update on what the situation was. Ronald Simons said he sold a lot in his subdivision to a woman who thought she was buying a different lot. He said the real estate agent sold her lot 5 and she thought she was buying lot 4. He said a contractor started to clear a road and his son told him that he was on the wrong lot. Mr. Simons said he told Paul Hale (the contractor) to stop. He said Mr. Hale came back to continue with the road and that Mr. Simons told him he could continue, but if he didn't buy it, it would be a waste of money. He said the woman who purchased the first lot sent another check for $5,000 to buy the lot.

Mr. Simons said he returned a couple of days later and found that Mr. Hale had hired David Crane to cut trees, and that Mr. Crane cut all the trees on the lot, right down to the water. Mr. Fenton clarified that the woman had not yet purchased that lot. Mr. Simons said Mr. Hale had hired Mr. Crane. Mr. Simons said he saw Mr. Crane and asked if all the trees were cut, and Mr. Crane told him yes.

Mr. Simons said Deputy Code Enforcement Officer (DCEO) Jordan noticed the trees had been cut and stopped and told the workers to stop, which Mr. Simons said was fine. He said the clearing was supposed to stop 100-feet from the high water mark, but no one knew where it was. He said Mr. Hale evidently measured from the wrong point, out into the marsh. He said that's evidently why they cut the trees. He said on the left side of the lot there is a resource protection area. He said when they applied for the subdivision, nobody told them about the zoning. He said it was on the map at 100-feet instead of 250-foot setback.

Mr. Simons said Mr. Crane asked if he wanted some trees cut off lot 3. Mr. Simons said he did, but not to cut to the water.

Mr. Simons said they have a reforestation plan for those lots. He said they've got to replant the trees. He said they are in litigation with the realtors and the people who cut the trees, and it came out to be quite a mess.

Mr. Fenton asked what Mr. Simons was asking for. Mr. Simons joked that he'd like $100,000 to clear it up. He said he guessed he had until September to replant the trees.

Mr. Marckoon said the Notice of Violation asked that this reforestation plan (this is the first he'd seen of it) be submitted. He said the letter from attorney Ed Bearor would ask for more time to submit, but evidently this is the formal submission. Mr. Simons said that was correct. Mr. Marckoon read the pertinent sections from the notice of violation, including a plan from a forester, completion of restoration plan and wetland delineation no later than 9/1/09. Mr. Marckoon said this is something that CEO Dennis Ford would have to look over. He said the plan was supposed to be done by November 28, 2008.

Mr. Simons said he asked Mr. Ford if he should come to the Board of Appeals. He said Mr. Ford told him that if Mr. Simons plans to correct the problem, there was no need. Mr. Marckoon said the town received a letter from Mr. Simons's attorney, Mr. Bearor, asking for a meeting with the Board of Appeals. Mr. Simons said that was later. Mr. Marckoon said he wasn't sure of any action required of the Board of Appeals unless there was something in the Notice of Violation that Mr. Simons was contesting. Mr. Simons said he just wanted to make sure the town saw that there was a plan, and that he was doing something, and the trees would be replanted. He said he's going to have to come back in to revise his subdivision plan. Mr. Marckoon said that would go before the Planning Board.

Mr. Wuorinen asked how the plan counts the number of trees that have to be replaced. Mr. Simons said there are 250-trees, hopefully 3-to-4 foot trees. Mr. Wuorinen said the diameter of the trunk is pretty small. Mr. Wuorinen asked if there is a plan for following up to make sure what's planted, survives. Mr. Simons said they are right here and they would monitor that.

Chairman Fenton said he looked up the state law and didn't realize how bad this is. He said Mr. Simons could be fined, and there is a $25,000 maximum fine, and if it significantly improves the property, the fine could be greater. He said 30-A MRSA §4452 requires the same size trees be put back. He said he didn't know if the reforestation plan, and urged Mr. Simons to check with his forester to make sure title 30-A is followed. Mr. Simons said his forester just did a similar plan in Sullivan and they allowed the 3-to-4 foot trees. Mr. Simons said he's hoping the fine gets waived.

Chairman Fenton said it's an awful thing to face, especially with the potential fine and the cost to reforest. Mr. Simons said it was no fault of his, other than he owned the land. Chairman Fenton said the law says all involved are liable, not just Mr. Simons, but the cutter and the owner.

Mr. Marckoon said the plan should be submitted to the Code Enforcement Officer. DCEO Jordan said it also has to be approved by the Department of Environmental Protection. Mr. Marckoon said he expects the plan would be submitted to the CEO, he would recommend he send it to the DEP for their review. He said it doesn't seem like Mr. Simons is requesting anything, other than the date is much later than was requested in the Notice of Violation. Mr. Fenton asked if that was now a moot point. Mr. Marckoon said the town has taken no further action since the Notice. Chairman Fenton said there will be issues with notices if the post office cuts back its delivery schedule.

Mr. Fowler says the small trees can be cut, but those guys should know the law. Mr. Simons agreed. Mr. Fowler said Mr. Simons should have some help. Mr. Simons said Mr. Crane, who cuts everywhere, should have known not to cut to the shore. Mr. Fowler said the contractor should have known about the 250-foot setback.

Mr. Simons said Mr. Hale came into the Town Office and asked CEO Ford what the setback was, and that Mr. Ford said it was 100-feet, not 250-feet from the normal high water mark. Mr. Simons said Mr. Hale asked who measured, and Mr. Ford said if he measured it, it's 100-feet and if Mr. Hale measured it was 75-feet. DCEO Jordan said that wasn't correct. He said if the landowner or developer measures it has to be 125-feet, and a stake has to be set at the 100-foot setback.

Mr. Fowler said it's the understanding that you hire someone to set the stake. Mr. Marckoon said the ordinance requires that a surveyor set the 100-foot setback stake. Mr. Simons said his surveyor put the 100-foot line on the plan, and now he's hired Steve Salsbury. Mr. Fowler asked who the original surveyor was. Mr. Simons said it was Harriman.

Mr. Wuorinen said it's his understanding that when you replace trees, there is supposed to be a 250-foot square area where the stumpage is measured, and a calculation is made based on a scoring system contained in the Shoreland Zoning Ordinance. He said he didn't see the calculation in this plan. Mr. Simons said the forester counted the trees. A brief discussion followed. Mr. Marckoon said the CEO has yet to receive the plan, and he should review it with the DEP and proceed from there. Chairman Fenton said there doesn't appear to be any role for the Board of Appeals at this point. Mr. Simons said he just wanted the Board to know that he's working on it.

Mr. Fowler said he couldn't figure out why the board was meeting, because nothing had been appealed. Mr. Marckoon said the letter from Mr. Bearor prompted the meeting, and the Board agreed that it looked like Mr. Bearor wanted to keep their options open. Mr. Simons asked if he was supposed to give the plan to CEO Ford. Mr. Marckoon said he would give it to CEO Ford. He asked if there was anything else that Mr. Simons brought with him. Mr. Simons said there was not.

Chairman Fenton thanked Mr. Simons for bringing the material, and wished him luck that everything will work out. DCEO Jordan asked when the Planning Board might expect a submission for the changed subdivision. Mr. Simons said he has to wait to see how the litigation works out. He said it's a mess. Mr. Simons left the meeting.

Chairman Fenton asked if there were any other matters to come before the board. Mr. Wuorinen said a motion to adjourn would be next. Mr. McDevitt gave a brief history of the ownership of the land, including once when it was planted with turnips when a man named Hamilton owned it, and then trees were planted by former owner Richard Zerrien. Mr. Fowler said there was some claim they were reclaiming the field.

Chairman Fenton declared the meeting adjourned at 6:49 PM

Respectfully submitted,

Stuart Marckoon, Secretary.