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Lamoine Board of Appeals

Minutes - April 14, 2014

Chair Griff Fenton called the meeting to order at 6:35 PM.

Present were: Appeals Board members Hancock “Griff” Fenton, James Crotteau, Connie Bender, Jay Fowler, Jon VanAmringe; Administrative Assistant to the Selectman Stu Marckoon, Planning Board Chair John Holt, Planning Board member Donald Bamman, Travis Smith, David Schick, David & Shannon Byers, Nancy Jones, and Valerie Sprague. Stephen Salsbury (appellant agent), Ed Bearor (appellant attorney) arrived approximately 6:55 PM.

Selection of Officers – Chair – Jay nominated Griff Fenton as the chair for the remainder of the 2013/14 fiscal year. Connie 2nd . Vote in favor was 4-0 (Fenton abstained).

Vice-Chair – Jay nominated Jim Crotteau as vice-chair. Griff 2nd . Vote in favor was 4-0 (Crotteau abstained).

Secretary – Griff reported that Stu Marckoon is unable to be the official secretary as he is not an appointed board member, but it is possible to have him assist the secretary by taking notes. Jim said the role of the board secretary is to make sure that accurate minutes are kept, and the secretary can check that accuracy. Jay nominated Jon VanAmringe. Griff 2nd . Vote in favor was 5-0.

Appeal: Gott v. Lamoine Planning Board

Jurisdiction – After a brief discussion, Jim said he believes the Board of Appeals has jurisdiction to hear this matter and review the appeal. There was no disagreement.

Standing – Jim said the issue of standing seems pretty clear as well that the appellant has standing to bring the appeal to the Board of Appeals. There was no disagreement.

Timeliness – Griff said the Site Plan Review Ordinance gives parties 30-days to file an appeal. He said the Board received the appeal on March 24, 2014. The date of denial by the Planning Board was on March 4, 2014 and that appears to be well within the 30-day deadline. There was no disagreement.

Conflicts – None of the Board members stated any sort of conflict in the matter.

Quorum The chair noted there were five members present and this would be the panel to hear the appeal.

Type of Hearing – The chair said this would be an administrative appeal as there was just one issue for which the Planning Board denied the site plan review permit to the appellant. Jay said nothing else can be brought up during an administrative hearing. There was a brief discussion about de novo authority of the Board.

Rules of Procedure – The chair said generally the appellant would present its case first. Jim asked whether John Holt would be speaking for the Planning Board. Rev. Holt said the appeal that was filed did not give specifics on what the appeal was, and two boxes were checked on the appeal form. Griff said it appears that the appellants are appealing the one issue on which the site plan review permit was denied. He said he was hoping that the appellants would show tonight. Jim said if the appellants file something in writing, the Planning Board would get that. Rev. Holt said the Planning Board would certainly respond.

Jim said he received a telephone call from an abutter and told the abutter the meeting was tonight. He asked if the Board wished to allow abutters to speak. Griff said the abutters have standing and he would like to hear what they have to say. Jim suggested allowing time at a hearing to listen to abutters. Jay said he would like to see comments in writing. Griff said he didn't want the hearing to become a circus. Jon said if the appellant, Planning Board and abutters prepare a written brief ahead of the hearing, it would be helpful. Griff said he agreed that comments in writing ahead of time would be helpful. Valerie Sprague said other boards allow a public comment period at meetings. Griff said it doesn't work that way with the Board of Appeals unless the speaker is one of the appellants, and again stated abutting property owners have standing. He said the issue is cut and dry. He said the town has gravel pits and a residential area, and there needs to be a balance, as the town is consumed by this issue.

Griff said having those wishing to make public comment put that in writing is helpful. Jim said the Appeals Board is functioning like an Appeals Court and cannot take new evidence. He said the Board is only looking at the Planning Board evidence. He said the Appeals Board would have to look at the record before the Planning Board. He said public concerns are more appropriate before the Planning Board. Griff said the Appeals board is stuck with a process that it must follow.

Stu said generally the Appeals Board would schedule a public hearing and notify the appellants, the abutters, and the Planning Board. Griff said the hearing should take place at the Town Hall. Jim said the appellants should present their case in writing and give the Planning Board an opportunity to respond. He said it should take 3-weeks to a month to get the written material. Rev. Holt said since there was no content with the appeal, the Planning Board would need at least two weeks to respond.

At this point the agent and attorney for the appellant, Mr. Salsbury and Atty. Bearor, arrived at the meeting.

Griff asked if there was any additional information for the meeting. Atty. Bearor said there was none for this evening. He said the only condition of the site plan review ordinance that was denied was for preservation and enhancement of the landscape.

Jim said the Appeals Board is looking for the specifics on why the appellants believe the Planning Board acted erroneously and they would like a written submission so that the Planning Board can respond in writing. He asked Atty. Bearor if that was OK, and Mr. Bearor said it was. Griff said the Planning Board had indicated it would need two weeks to respond. Jim asked how long it would take for Atty. Bearor to make his submission. Atty. Bearor said two weeks from today. A discussion of dates followed, and the Board agreed to hold the hearing on May 14, 2014 at 6:30 PM at the Lamoine Town Hall. The deadline for the appellants to make their submission will be April 29, 2014 and the Planning Board will supply its written response by May 12, 2014.

The Secretary said he would draft the notices for abutting property owners and work with Stu on making notifications.

Role of the Board of Appeals – Griff said he has noticed that in the past few years ordinance changes have changed the role of the Board of Appeals, and he is concerned. He said the ordinances seem to be more restrictive. He said if there is not an active Appeals Board, the next venue is court and that's not fair to citizens because of the cost. He said other appeals boards across the state vary and Town Meeting has the Home Rule Authority to set the appeals function by ordinance. He said he would like a feel from the Board on what the role is for Lamoine.

Jay said the Planning Board wrote ordinance changes that seem to make it so the Appeals Board is not even needed. He said he was against the elimination of the de novo appeal. He said the administrative appeal is restrictive and gives the Planning Board the say over everyone.

Rev. Holt said he doesn't believe the appeals process has changed recently with the exception of the gravel ordinance at last week's town meeting, and that was written by the town attorney. A discussion followed on the Town Meeting process. Rev. Holt said he did not understand what the Appeals Board meant by the process being too restrictive. Griff said without the option of a de novo hearing, the appeals process is not citizen friendly. A lengthy discussion followed regarding de novo hearings.

Jim said his view of the process is colored by being a lawyer. He said the big difference between a de novo hearing and an administrative hearing is that a court hears the evidence in a de novo case and only reviews the decision in an administrative case. He said in his mind having two boards look at the same body of evidence is a waste of time. He said unless there is an extraordinary reason for allowing in new evidence, an appeal should not present new evidence. He said the Board of Appeals is an intermediary step and the Appeals Board looks at the interpretation by the Planning Board to determine whether it was right or wrong. He said if all the evidence is presented again, the Appeals Board becomes a second Planning Board, and that's not what the Appeals Board is suited for.

Jay said there are more people on the Planning Board than the Board of Appeals. He said he wished he had attended the Planning Board meetings but stayed away because the cases might end up before the Appeals Board. He said recent newspaper articles are not telling the truth about things related to gravel issues. He said if the Appeals Board hears the case de novo, the Appeals Board opinions matter. Jim said the Appeals Board does get a chance for its collective opinion to be heard in an administrative appeal. He said the only question is whether the Appeals Board would accept additional evidence.

Griff said in the past the Appeals Board had a choice of whether to hold an administrative or de novo hearing. He said the de novo choice should be available even if it would be rarely used. He said new evidence could sway the decision. Jim asked why such evidence would not be presented to the original decision making board. Connie asked if there was a process for new evidence to be presented to the Planning Board. She said she would tend to agree that it's not the job of the Board of Appeals to review the entire case, just whether the Planning Board made the right decision. She said the Appeals Board should be the intermediary before a case goes to court.

Griff said he would like to discuss the idea of having a specific Board of Appeals Ordinance. He said it would be nice to investigate the possibility of having such an ordinance that makes the process more clear and treats everyone and every ordinance fairly. Jim said he agreed that might be a good idea. He said an Appeals Board Ordinance could list exceptions. Stu asked Mr. Salsbury who sits on the Ellsworth Board of Appeals if there was a separate ordinance in that city. He said the function of the Ellsworth Board of Appeals is codified, and noted they also act on tax assessment and human resources appeals. Stu suggested that the Appeals Board meet with the Selectmen to discuss the possibility.

Jim suggested putting the appeals section from each ordinance into one document as a start. Stu said he could put that together. Stu also said he would make sure each Appeals Board member received a Site Plan Review Ordinance.

Next Meeting - The Appeals Board meets next on Wednesday, May 14, 2014 at 6:30 PM at the Lamoine Town Hall.

There being no further business, the meeting adjourned at 7:28 PM

Respectfully submitted,

Jon VanAmringe, Secretary