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Lamoine Board of Appeals

Minutes of February 21, 2011 (Draft, subject to correction)

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

Present were: Appeals Board members Griff Fenton, John Wuorinen, Nicholas Pappas, Merle Bragdon, Jay Fowler, Jim Crotteau; Secretary Stu Marckoon, Planning Board members Michael Jordan, John Holt, Donald Bamman

Minutes of September 30, 2010 – Mr. Wuorinen moved to approve the minutes as prepared. Mr. Fowler 2nd . Vote in favor was 4-0 (Crotteau, Bragdon abstained)

Appeal of Doug Gott & Sons of Planning Board denial of Site Plan Review and Gravel Permit

Chairman Fenton said the purpose of the meeting was to go over the preliminary matters in this case.

  1. Jurisdiction – Mr. Crotteau said there was no question that the Board of Appeals has jurisdiction in this matter. The Appeals Board unanimously voted that it has jurisdiction.
  2. Standing – Chairman Fenton said there was no question that the appellant, Doug Gott & Sons has standing in this matter. The Appeals Board unanimously voted that the appellant has standing.
  3. Timeliness of Appeal – Chairman Fenton said the appeal window was 30-days from January 5, 2011. The appeal was received on February 3, 2011. The Appeals Board voted unanimously to find that the appeal was filed in a timely manner.
  4. Conflicts of Interest – Mr. Fowler said that he is a competitor of Gott and a fellow gravel pit operator. Chairman Fenton said that at the previous appeal on this lot the Appeals Board read over the conflict of interest section of the Board of Appeals manual and found that Mr. Fowler did not have a conflict and he was not excluded from the panel. He asked Mr. Fowler if he could be objective and fair in this matter. Mr. Fowler replied that he could. Mr. Crotteau said it was up to Mr. Fowler to determine if he has a conflict. Mr. Fowler said he could have an open mind. Secretary Marckoon asked if Mr. Bragdon would be the alternate member sitting on this case. Chairman Fenton said Mr. Bragdon should attend, just in case. There were no conflicts of interest indicated.
  5. Quorum – Chairman Fenton said there were five members and an alternate present without conflicts, and that constitutes a quorum.
  6. Hearing Type – Mr. Crotteau said attorney Michael Ross for the appellant had written to suggest that a de novo hearing was not appropriate, and that an administrative hearing would be appropriate. Mr. Crotteau said he would tend to agree with Mr. Ross's argument. He said that give the Appeals Board a chance to take a look to see if the standards used by the Planning Board were adequate under the law. Chairman Fenton agreed, saying that conforms to a Maine Supreme Judicial Court ruling he had reviewed. The Appeals Board voted unanimously that this matter would be handled as an administrative hearing.
  7. Rules of Procedure – Chairman Fenton said the rules that have been used in the past where the appellant presents his case, the Planning Board presents its case and a public hearing to gather evidence would ensue, and then the Appeals Board would deliberate would be adequate. Planning Board Chair John Holt asked if the Planning Board would be able to present a response or comments on the appeal. Chairman Fenton said they most definitely would. Secretary Marckoon said he would make several requests of the Planning Board in the written hearing notification. The Appeals Board voted unanimously to use the usual set of procedural rules.
  8. Hearing Date – After much discussion and checking of calendars, the Appeals board set Wednesday, April 27, 2011 at 7PM as the hearing date at the Town Hall.

Chairman Fenton said he read over the materials, and this appears to be a different sort of case, and questions of constitutionality have been raised along with alleged errors by the Planning Board. He asked if the Appeals Board would like to ask the Selectmen to have an attorney look at the materials and to attend the hearing. He said he does not like to spend money for something that is not needed, but having an attorney might be cheaper at the onset and to get the process right.

Mr. Holt noted that in the Appeals and Planning Board manuals, it's clear that the Appeals Board does not deal with constitutional matters. Chairman Fenton said he was aware of that, but there are cases cited by the appellant that may need research. He said there are issues of law here with which he is not familiar. Mr. Wuorinen said having an attorney is an excellent idea. Mr. Crotteau said he agreed, and while he is an attorney, he is not familiar with law in this area, and his role is to be a citizen member of the Appeals Board, not the attorney for the board. He said it would be helpful for the Appeals Board to have an attorney and, if need be, go into executive session with counsel. Chairman Fenton said if it can be done economically, it would be worth it. Mr. Fowler agreed there are matters the Appeals Board could use professional help with. Chairman Fenton said an attorney would not hurt the Board, but could be beneficial. Mr. Fowler said there are fairly technical matters here.

Mr. Holt reported that during the Planning Board process he spoke with Town Attorney Tony Beardsley regarding the application, and Mr. Beardsley rendered some opinions on some matters related to the application. He said the Planning Board and the Appeals Board cannot have the same attorney. Mr. Fenton agreed the Appeals Board would have to utilize a different attorney. Mr. Fowler agreed.

Secretary Marckoon said he would place the attorney request on the Selectmen's agenda for March 3, 2011 and asked if anyone from the Board of Appeals could attend. Mr. Fenton said he would try to attend. Mr. Fowler asked which attorney could be used. Mr. Marckoon said the backup town attorney is James Patterson. A brief discussion followed.

Next Meeting – The next meeting will be the hearing scheduled for April 27, 2011 at 7:00 PM. Mr. Fowler asked if the Board needed to meet ahead of time with the attorney. Secretary Marckoon said he or the chair could deal with the attorney prior to that meeting.

There being no further business, the chair declared the meeting adjourned at 6:49 PM

Respectfully submitted,

Stu Marckoon, Secretary