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Lamoine Board of Appeals

Minutes of November 5, 2014 (approved 12/9/14)

Vice chair Jim Crotteau called the meeting to order at 6:30 PM.  He noted that Connie Bender was not present, but that a quorum was present.  He noted that members Jay Fowler and Griff Fenton were in the audience but are not sitting on the Benincasa v. CEO/Planning Board appeal.

Present were:  Appeals Board members James Crotteau, Cece Ohmart, Jon VanAmringe, Hancock “Griff” Fenton, Jay Fowler; Planning Board chair John Holt, Planning Board member Chris Tadema-Wielandt, Administrative Assistant/Road Commissioner Stu Marckoon, Code Enforcement Officer Michael Jordan, Appellant’s attorney Ed Bearor, Appellant Tony Benincasa, Kathy Curtis, Barry Balach, Paula McIntyre, Sandra Fenton, Denis Bouffard, Monica Moeller, Phyllis & Larry Mobraaten, Kathie Gaianguest, Gerry Williams, Willem & Lieve Brutsaert, Nat Fenton, Kathleen Rybarz, Ed & Lily Miller, Laura Lyell (please note there may have been others present who were not identified).

Minutes of October 1, 2014 – Jon moved to approve the minutes as written.  Jim 2nd.  Vote in favor was unanimous.

Benincasa v. Code Enforcement Officer/Planning Board – Jim opened the hearing and said the case involves two issues; the ruling of the Code Enforcement Officer regarding the presence of a Recreational Vehicle (RV) and its alleged use as a dwelling unit, and a road opening permit waiver granted by the Planning Board.  He asked the appellant’s attorney, Ed Bearor if that was correct.  Attorney Bearor answered yes.

Jim said the Appeals Board has received and reviewed the numerous submissions in the case, first from the folks who don’t like the presence of the RV and then from town officials involved.

Mr. Bearor said he didn’t like being wrong in regard to the number of people who showed up.  He said most of those present also wrote letters to the Appeals Board.  He said when he submitted the appeal, the issue was whether one can occupy an RV for more than 30-days, and whether the 30-days meant consecutive days or 30-days in a calendar year.  He said that is the primary issue and the curb cut/road opening permit is secondary.

Mr. Bearor said the property owners (Mr. Balach and Ms. McIntyre) needed the driveway to accommodate their RV.  He said the property owners have to back up the RV to get it onto their property.

Mr. Bearor said he did not disagree with Planning Board Chair John Holt’s written assessment that the Building and Land Use Ordinance contained no guidance on entrance permit waivers.  He said the town could amend the ordinance to clarify waivers.  He said he would focus on whether an RV can be used as a dwelling for more than 30-days without a permit. 

Mr. Bearor said the Code Enforcement Officer (CEO) said there were numerous similar situations around town.  He said those are irrelevant.  He said the town has an ordinance that says one cannot occupy an RV for more than 30-days without a construction permit.  He said the property owners can’t even get an RV permitted to be on this lot because the lot is not at least 80,000 square feet in size.  He said this is not an accessory dwelling unit. 

Mr. Bearor said the issue to address is whether the ordinance is to be read as meaning that one could occupy the RV for 29-days, and drive it off the lot, or as meaning that it’s a 1-time opportunity to place the RV on a property for 30-days during a calendar year.  He said the word “consecutive” cannot be inserted into the ordinance.  He said he understands the property owners will be moving the RV soon and that no renter is coming in making putting a decision in the balance.  He said there might be an opportunity to amend the ordinance.  He said there are several ways to amend – either insert the word “consecutive”; to leave it as it is, or to specify that 30-days means during the calendar year.

Mr. Bearor said that he wrote to the Board of Appeals on October 24, 2014 that he could not improve on the arguments made in the many letters sent to the Board.  He said he included some observations regarding RV occupation.  He said the RV in question was plainly occupied more than 30-days during the summer.  He said the issue is ripe, and that the CEO should interpret the ordinance as meaning 30-days in a calendar year. 

Jim asked if the Appeals Board had any questions for Mr. Bearor.  There were none.

Planning Board Chair John Holt and Jim said they would concur that the curb cut issue is not the most contentious.  Mr. Holt said there was no criteria to be met to determine whether a waiver for a second curb cut should be granted.  He said the Planning Board has the authority to issue the waiver.  He said the Planning Board did not grant the permit – that is within the authority of either the Road Commissioner or CEO.  He said the waiver allowed Mr. Balach to apply for the 2nd entrance permit.  Mr. Holt said he sent a supplemental comment after the Appeals Board deadline regarding whether the RV is an accessory dwelling unit, as he believed that was an important distinction to make.

Jim asked if there have been other waivers granted for curb cuts in that area.  Mr. Holt said he did not know.  He said the lots in that area are small.  He said having a 2nd curb cut doesn’t mean a lot.  He said the Planning Board granted a waiver to another person on Buttermilk Road to allow for a 2nd cut to allow access to their back land.  He said the proposed curb cut must meet state standards to have a permit issued. 

Jon said the definitions are clearly contained in the ordinance, and that a so-called “mother-in-law” apartment is not germane to this issue.  A brief discussion followed. 

Jon said to the Road Commissioner that he was concerned that the driveway was constructed in 2013.  Road Commissioner Marckoon answered that appeared to be correct.  Jon said the application for the road opening permit was June 24, 2014.  Mr. Marckoon said he recalled receiving it sometime last spring.  Jon remarked that it’s not good to ask for forgiveness.  He said it appeared that the CEO said the Road Commissioner made an error in not requiring the waiver and then the Planning Board issued a waiver.  Mr. Marckoon said that would be the correct sequence.

Jon said there are a lot of opinions, and emotions are sometimes overwhelming the facts, and he needed to establish the sequence.  Cece said curb cuts issues are more important in high traffic areas where a line of sight is needed.  She said she looked at the property and it’s not a high traffic area – it’s at the end of a road, and it’s not that important of an issue. 

CEO Michael Jordan said there had never been any waivers for a 2nd entrance issued in town until this.  He said that neither he nor Mr. Marckoon had realized that a waiver was required.  He said there are 7-houses in that neighborhood with two curb cuts. 

CEO Jordan gave a time line of when he received the complaint from Mr. Benincasa, and when he visited the Balach/McIntyre property.  He said he never saw anyone living in the RV when he visited.  He said they apparently were in the RV at times between June 13, 2014 and August 23, 2014.  He said he was on the property three times.  He said the first time he visited he told Mr. Balach there was a problem and they fixed it.  He said he cannot say with certainty that they stayed there 30-days.  He said he was under the impression based on conversations with previous Code Enforcement Officers that 30-days meant 30-consecutive days.  He said this happens all over town.

CEO Jordan said he has submitted a request to the Board of Selectmen to add the word “consecutive” to the Building and Land Use Ordinance.  He said he’s not sure what will happen with that request.  He said no one has lived in the RV since August 23, 2014, and Mr. Balach and Ms. McIntyre plan to leave within the week.  He said if they leave, he cannot force them to obtain a building permit. 

CEO Jordan said he told Mr. Balach that if the town votes against adding the word “consecutive” to the ordinance, that would mean that they could only stay in the RV for 30-days without obtaining a permit.  He said after speaking with Mr. Bearor earlier, he has changed his mind.  He said he didn’t think everyone should be here wasting time.

Jim opened the hearing for public comment.  He said he has read the many written submissions.  He said he did not need to hear the same things that have already been written.  He said he sensed from the comments there is a lot of tension in the neighborhood, and he would appreciate not hearing about that.

Mr. Bearor said CEO Jordan referred to a conversation that they had.  He said he was not asking for enforcement after the fact.  He said they are asking for future relief.  He said there is some disharmony and that would not change with any action.  Jon asked if there is an unstated agenda.  Mr. Bearor said he typically asks a client about that, and to his knowledge, there is none.  He said a new use was introduced to the neighborhood.

Jon said the Appeals Board is talking about just the two issues stated here.  He said he wanted to make sure they were not talking about anything else.  Mr. Bearor said if something comes back for future consideration, there might be a Shoreland Zoning issue.  Jon asked whether this was in the Shoreland Zone.  CEO Jordan said there might be about 8-feet of the Shoreland zone.  There was discussion about whether the Shoreland Zone issue was a red herring.  Jim said he would stop any extraneous comments should they arrive.   An audience member asked why such comments would be irrelevant.  Jim said they are issues that are not before the Board of Appeals.

Hancock “Griff” Fenton (Appeals Board member who is not hearing this case) said the determination that it must be 30-consecutive days to require a permit is troubling.  He said if that’s taken to its true meaning, it could put Lamoine State Park out of business. He said that has a detrimental tone to it.  He said he understands that a temporary stay is OK. 

Monica Moeller said if 30-days means consecutive, that means the RV occupant could leave after 29-days and return again.  She said that makes a mockery of the law.  She said the idea is to protect water, and seems silly.

Jay Fowler (Appeals Board member who is not hearing this case) said there was a similar situation at Meadow Point a few years ago, and it was decided that 30-days meant consecutive days. 

Denis Bouffard said the zoning laws are to protect against density.  He said recycling an RV off a property defeats that.  He said a proposed ordinance change should not happen.

Jim said the board is not dealing with an ordinance that is not in effect.  He said the board must deal with current ordinance interpretation.  Jon said to amend an ordinance requires a town meeting vote.  Mr. Holt said the Selectmen can pass along proposed amendments to the town meeting.  He said the Planning Board must call a public hearing, even if the Planning Board is not interested in the amendment.  He said the other way is for a citizen petition to force onto a town meeting warrant.  Mr. Bouffard said they have written a lot of letters and asked whether they should write to the Selectmen.  Jon said the Appeals Board has only two issues – the curb cut and the interpretation of the current Building and Land Use Ordinance.

Mr. Bearor asked what the status of the amendment proposed by the CEO was.  Mr. Holt said it has been referred to the Planning Board which will have to call a public hearing.  Mr. Bearor said it’s at the beginning of the process.  Jim asked whether at some point the Planning Board will have to have a hearing.  Mr. Holt said that was correct; an amendment to the Building and Land Use Ordinance requires a Planning Board hearing, and may need an additional hearing depending on the voting method.  Jim said folks should stay in touch with the Planning Board.

Planning Board member Chris Tadema-Wielandt said no one at the Planning Board meeting spoke in opposition to the curb cut waiver application.  He said if he had heard the opposition, he would not be surprised if it might have been decided the other way. 

Nat Fenton said the proposed ordinance change is a moot point.  He said the issue is that Mr. Jordan might not be the CEO and a decision is needed.  Jon said the moot concept came from the audience. 

Mr. Benincasa cautioned the Planning Board about opening Pandora’s Box.  Jim said that could be brought up at the Planning Board hearing.

Paula McIntyre said when they purchased the property, they asked whether it was illegal to have a 2nd driveway to park trailers and cars in.  She said she didn’t see any law that did not allow for parking.  She asked if the neighbors have a right to object about parking an RV and trailers on their property.  Jim said the Appeals Board would make a decision on whether the driveway is appropriate.  Jon said the Appeals Board is being asked for an opinion on whether the Planning Board had the right to grant a waiver. 

Ms. McIntyre said she heard the comment regarding seeking a curb cut after the fact. She said they were under the impression that the contractor had obtained a permit, and he didn’t.  She said when they found that out, the immediately applied.

The hearing closed at 7:20 PM.

Deliberations – Jon said in regard to the curb cut issue, the testimony given shows the Planning Board was within its rights to issue a waiver.  He said it might be helpful to have specific reasons, but it’s pretty clear that the Planning Board had the right to waive.  Jim and Cece said they agreed.  Jon moved to find that the Planning Board had the right to grant the waiver for a second road opening.  Cece 2nd.  Vote in favor was 3-0.  Jon noted that the Appeals Board has affirmed the Planning Board’s decision.

Jon said Mr. Bearor made a compelling argument that there are no modifiers in the ordinance to the words “30 days”. He said the ordinance does not say consecutive or per year.  He said he could take the stretch to a calendar year, but he’s not willing to take the stretch to consecutive days.  He said this does not apply to storing trailers etc.  He said it applies only if the RV is used as a dwelling. 

Jim said he agreed and that he would add a couple of things.  He said the ordinance is not intended to allow for use then take one day off.  He said the ordinance is talking about waste water and other serious issues.  He said a visitor for a couple of weeks is one thing, but that is not happening here.  He said there is a concern about the size of the lot.  He said he would interpret the ordinance that it does NOT mean 30-consecutive days.   Cece there said there is a concern for people who bring in trailers for the summer with no well or septic.  She said she recalled the discussion while she was on the Planning Board and crafting the ordinance but she was not sure whether it was consecutive days or per year.  Jon said this is not an accessory dwelling unit – it’s a separate dwelling unit. 

Jim moved to find that the Code Enforcement Officer was in error in determining that the ordinance applied to 30-consecutive days of use.  Jon 2nd.  Vote in favor was 3-0.

Jon said by voting the way the Board of Appeals has, it has decided that the RV is a separate dwelling unit and the lot must have 80,000 square feet of area to qualify for a permit.  He said the CEO should order removal of a hookup to the septic system.  CEO Jordan said that the hookup was ordered removed in June and the pipe is not there. 

Mr. Bearor said the Appeals Board has interpreted the ordinance.  He said he’s not asking the Board to labor over additional findings of fact.  Jon asked if Mr. Bearor was satisfied that the issue is done.  Mr. Bearor said he doesn’t see any marginal gain of seeing the waiver issue go further and they are not going to pursue that. 

Jim said the Board needs to do something to make up a decision.  He said the agenda says mentioned findings of facts and conclusions of law.  He said he’s not sure if anything more need to be done.  Mr. Marckoon said if the Appeals Board is satisfied that the minutes are an adequate record; that should be OK.  There was a discussion on specifics that should be included in the minutes.

A discussion followed regarding notification to the Planning Board.  Most in the audience left the meeting.  Griff and Jay joined the board at 7:38 PM.

Jim said he would like to do a decision where the three sitting members on the Benincasa case signed.  Stu said he would draft it up, consult with Jon, and have something ready to sign.

Appeals Board Ordinance – The Appeals Board discussed meeting in the near future to discuss a possible ordinance.  Jon said such an ordinance would make the appeal process the same for all ordinances.  After a brief discussion, Griff said he would try to draft something prior to the next meeting.

Next Meeting Date – The board agreed to meet on Tuesday, December 9, 2014 at 6:30 PM.  The agenda will be to sign the Benincasa v. CEO/Planning Board decision, and to review a draft ordinance.  The board said it hoped it could have an ordinance ready for the 2015 town meeting.

There being no further business, the meeting adjourned at 7:49 PM

Respectfully submitted,

Jon VanAmringe, Secretary

Board of Appeals