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Lamoine Board of Appeals

Minutes - February 25, 2015

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

Present were:  Appeals Board members Cecilia Ohmart, Jay Fowler, Hancock “Griff” Fenton, Jon VanAmringe; Code Enforcement Officer Michael Jordan, Administrative Assistant to the Selectmen Stu Marckoon, Attorney Ed Bearor, Friends of Lamoine representatives Kathleen Rybarz, Bruce Gillett, Catherine deTuede, John Jerabek, Lynn Tscheiller, Carol Korty and member of the public Valerie Sprague.

Minutes – January 26, 2015 – Jon moved to approve the minutes as written.  Jay 2nd.  Vote in favor was 3-0 (Ohmart abstained).

Friends of Lamoine (FOL) v. Code Enforcement Officer (CEO) – Chairman Fenton said he would like to go through all of the preliminary issues at this meeting, starting with a determination of whether the Board of Appeals has jurisdiction in this matter.  He gave a quick oral summary of the case, noting that Doug Gott & Sons submitted an application for a commercial building in February 2014 and the Planning Board rejected the Site Plan Review application.  Gott appealed that rejection and the Board of Appeals initiated that process in April 2014.  In June 2015 the Board of Appeals issued the opinion that the Planning Board had erred.  The Planning Board subsequently asked for a reconsideration and on July 12, 2014 the Board of Appeals denied the request.  In August 2014 the Planning Board issued the Commercial Building and Site Plan review permits.  He said the Friends of Lamoine asked the Code Enforcement Officer to investigate whether the site was in violation of the Gravel Ordinance, and the CEO did not issue any violation notice, and now the FOL has appealed that action to the Board of Appeals.  Griff asked CEO Jordan if that was what is going on.  Mr. Jordan answered yes.

Chairman Fenton said the CEO had written to the Board of Appeals on the issue of jurisdiction and read from the submission as follows:

The Complaint was for an alleged violation of the Gravel Ordinance.  The Appeal Section of this Ordinance reads as follows:  Any decision of the Planning Board may be appealed by any party of standing to the Lamoine Board of Appeals. The appeal shall be in writing and submitted within thirty (30) days of the date of the written decision of the Planning Board and shall be accompanied by the required fee as established by the Lamoine Board of Selectmen. The plain reading of this ordinance is that only a decision by the Planning Board may be appealed to the Lamoine Board of Appeals.  

Chairman Fenton asked if that was CEO Jordan’s position.  Mr. Jordan answered correct. 

Chairman Fenton asked if there was a 30-day provision for an appeal.  He said the Board was notified of the appeal on December 11, 2014.  CEO Jordan said that was well after the 30-day deadline following the reconsideration vote of the Board of Appeals and also well after the date the Planning Board issued the permit to Gott.

John Jerabek introduced himself, saying he is a licensed attorney but he is speaking as a member of the FOL.  He said the group is not his client.  Mr. Jerabek said the FOL is appealing from the complaint that was filed, which the Board of Appeals has a copy of.  He said that complaint was filed on November 13, 2014.  Carol Korty said the complaint was filed on October 22, 2014.  Mr. Jerabek said the complaint has nothing to do with the Site Plan Review ordinance, but rather with the applicability of the Gravel Ordinance to the Gott project. 

Chairman Fenton asked if it was because more than 500-cubic yards of gravel was being removed without a gravel permit.  Mr. Fowler asked if someone counted the loads of gravel removed from the property and whether anyone could authenticate it.  Mr. Jerabek said no.  He said the ordinance reads that if that amount of gravel will be extracted, a permit is required.  He said it was stated during the appeals process that 70,000 cubic yards would be moved.  Mr. Fowler said quite a bit of the gravel would be used to fill in the hole on the property.  He said the Appeals Board thought it would look a lot better that way.

Mr. Jerabek said he is addressing the issue of jurisdiction.  Chairman Fenton re-stated that the complaint was filed in October of 2014.  Mr. Jerabek said the Code Enforcement Officer issued his decision on November 13, 2014.  He said that goes to the timeliness issue.  He said the applicability of the complaint refers to the gravel ordinance. 

CEO Jordan said the Planning Board questioned during its deliberations whether the operation was a gravel pit.  He said one would assume that if they were removing gravel, Gott would have brought in a gravel permit application.  He said the Board of Appeals has already ruled that this is not a gravel pit.  He said if anything should have been appealed, it should be either the Appeals Board ruling or the Planning Board ruling. 

Mr. Jerabek said the statute itself is quite explicit.  He said the Appeals Board is talking about jurisdiction.  He said he did not want to address the merits of the project.  He said the Site Plan Review Ordinance does not apply to the complaint submitted to the CEO.  He said if there are conflicting standards in ordinances and/or state law, the stricter standards apply.  He said the Appeals Board could quibble over the 500-cubic yard threshold and what that means.  He said the complaint stated that this is a violation of the gravel ordinance, and that is what this is about; the non-permitting of an activity.

Mr. VanAmringe asked the Appeals Board to review the gravel ordinance, section 7-A as follows:

Permit Required.

No person shall engage in, or permit, the excavation, extraction, processing, storage or transportation of Gravel (said activities hereinafter “Gravel Operations”) where the scope of such Gravel Operations exceeds or will exceed one acre or from which more than five hundred (500) cubic yards of Gravel have or will be removed without first obtaining a permit (said permit hereinafter “Gravel Permit”) from the Lamoine Planning Board.

The Appeals Board reviewed that section.

Chairman Fenton said the FOL is basing their appeal on the section that requires gravel permits.

Attorney Ed Bearor, representing Doug Gott & Sons, said the removal of that amount of material was clear to both the Planning Board and the Board of Appeals.  He said his client was forthright about that.  He said this group (FOL) could have participated in the permitting and appeal process.  He said the Planning Board issued the permit.  He said CEO Jordan is correct on the matter of jurisdiction, timeliness and standing.  He said the opportunity to challenge the Board of Appeals action has long passed.  He said perhaps the FOL could have challenged the Planning Board’s permit issuance, but that has long passed as well.

Chairman Fenton said the Board of Appeals was aware of the gravel ordinance when it heard this matter in the spring of 2014.   He said as he recalled the discussion there was a conflict between the abutting property owners and a commercial establishment.  Has said the applicants tried to keep the view of the commercial building from being offensive to the neighbors, and the permit issued allowed the applicant to do what he had planned.  

Mr. VanAmringe said there was a tall berm and trees to be planted so that it is below the existing level.  He said under that plan, the neighbors would look out over the roof.  He said Gott had proposed some landscaping.  Mr. Bearor said that was correct.  He said the Appeals Board said they should be done by a certain date.  Mr. VanAmringe said that was correct, but the Planning Board chose to just issue the permit and not place a timing condition on it. 

Chairman Fenton said the Appeals Board looked at gravel and the cost per yard, and ascertained that it was not feasible to construct a building just to remove some amount of material.  He said Gott wanted to get the building level lower, and that was the decision the Appeals Board made at the time.  He said as far as the gravel ordinance was concerned, it should not pertain to this project.  He said the town has a gravel ordinance, a site plan review ordinance and a building and land use ordinance and tries to make them all work together.  He said the comment was made that 500-yards removed would put many home building projects in violation. He said the material being removed in this case was so that the project would not be offensive, and it was clearly not to make money. 

Mr. VanAmringe said the calculation was done to show that Gott was not doing an end run on the gravel ordinance because he previously had wanted to remove gravel.  He said it made no sense to extract gravel for profit with half the cost of the building.  He said the Appeals Board addressed that issue pretty well. 

Mr. Fowler said the Appeals Board visited the site and the material was no good to sell, but it was good for filling in a hole.  He said that proposed building project created a much better view. 

Mr. Jerabek said the Appeals Board members were addressing the merits of the permit, not whether the Appeals Board has jurisdiction.  Chairman Fenton said the applicability was taken into consideration and that it was determined the project, for the sake of the community, provided a much better view by having the building at a lower elevation, and they had to remove more than 500-yards to do that.  He said the Appeals Board was well aware of the ordinance, and made its determination.   Mr. Jerabek said he had to disagree.  He said there was no gravel permit application before the Planning Board or the Appeals Board.  He said 3-members of the Planning Board raised the question of whether a gravel ordinance was applicable.  Chairman Fenton said that was not part of the reason the Planning Board turned down the Site Plan Review permit.  Mr. Jerabek said that happened in March 2014.  Chairman Fenton asked why the Planning Board denied the building permit site plan review.  Mr. Jerabek said it was for excess soil disturbance.  Chairman Fenton said it was not based on the gravel ordinance.  Mr. Jerabek said the Planning Board did not have a gravel permit application before them.

Mr. VanAmringe said the Board of Appeals ruled on a building permit which was not related to gravel removal.  He said the ruling from the Planning Board was based on aesthetics.  He said the appellants keep referring to the gravel ordinance, and that is not germane to the issue they are bringing up.  He said perhaps the gravel ordinance needs to be addressed.  He said the Appeals Board did the math and determined the Gott project was not an end run around the gravel ordinance because that would be a stupid business decision.  He said Gott is cleaning up the property and making a visual improvement.   He said he’s not sure what the complaint is about.  He asked if it was because more than 500 cubic yards of material is being removed under the permits issued for the building.  He said the Appeals Board overturned the Planning Board’s denial and sent it back to the Planning Board. 

Mr. Jerabek said this is about the applicability of the gravel ordinance as 70,000 cubic yards of material will be removed.   Mr. VanAmringe said the Appeals Board has cast its’ opinion on that matter.

Chairman Fenton said the Appeals Board has a request from the Friends of Lamoine.  He asked what the request was, and what the FOL wanted the Appeals Board to do.  He said CEO Jordan has spoken. He said he wasn’t sure he understood the request.  FOL member Carol Korty said a third permit need to be applied for, and the CEO should insist on the permit, and it is within his job description to do that.  She said the ordinance is not being adhered to.  Chairman Fenton said that’s interesting.  He said that would mean we have all these basements to look at.  He said the Planning Board denied the Site Plan Review permit based on Section J1 of that ordinance, not on the gravel ordinance.  He said the Gravel Ordinance mentions 500-cubic yards, and that would be an amount of material removed to create a basement.  He said under that thinking, every building project would have to have a gravel permit.  Ms. Korty said that doesn’t mean a building project is a gravel pit.  Chairman Fenton said that’s what the Appeals Board was doing with this matter which is a building project.

Mr. VanAmringe read section 7A of the Gravel Ordinance and said the section does not say “gravel pit”.  Mr. Jerabek said that’s what the complaint says.  Mr. VanAmringe says the Appeals Board is not the right forum.  He said the Board considered that and looked at the project as a construction permit.  He said the Appeals Board looked at the Gott proposal and said based on aesthetics it was a preferable option to the current condition of the property.  He said building projects have to remove dirt in order to put in buildings and parking lots.  He said this is the same thing.  He said the neighbors will look above the new building roof line.

Mr. Jerabek said this is not 500 cubic yards, but 70,000 cubic yards.  He said it’s part of their commercial gravel operation and they’re selling the material.   He said how Ellsworth deals with material removal is different from Lamoine.  He said Gott is selling the gravel.  Ms. Korty said just because they have a gravel permit does not mean a building can go on top of it.  Mr. VanAmringe said it’s not a gravel pit.  He said the Appeals Board analysis said it made no sense to construct a building just to access what would be about 28,000 yards of gravel.  Ms. Korty said the town is being denied the gravel permit fee and payment into the restoration escrow account. She said this does not prevent building, but there needs to be a third permit.

Mr. Fowler said if the town ditches the roads, is a permit required?  FOL member Kathleen Rybarz said that doesn’t apply.

CEO Jordan said with the recent change in the Building and Land Use Ordinance, this building and houses could not be built if strict guidelines are adhered to.  He said the interpretation the FOL is asking for essentially stops building.  He said when a client comes into inquire about building, he asks if the project is inside the Shoreland Zone, and tells them they’ll need the building permit, the Shoreland permit, a subsurface waste disposal permit and an internal plumbing permit.  He said the Planning Board’s job is to say whether they need a gravel permit.  A brief discussion followed.  Valerie Sprague said the Code Enforcement Officer should make sure the gravel permit happened. 

Chairman Fenton said the Code Enforcement Officer is carrying out the decision of the Planning Board and the Board of Appeals.  He said if the 500-cubic yard provision was strictly applied, most every cellar would need a gravel permit.  He said that is not reasonable.  He said when the Appeals Board heard this information, they discussed the issues.  He said it would have been helpful if the FOL group was present when this was discussed.  He said the Appeals Board decide the best application of all the town ordinance, and this was the most logical decision.  He said the Appeals Board was told that some of the material would be sold as gravel, but most of the material is not gravel.

Chairman Fenton said the Appeals Board does not have jurisdiction to hear this.  He said the time to hear this was when the Planning Board issued the permit.  He said the complaint is really against a previous decision.  He said the material removal option approved was the least disruptive option.  He said if the gravel ordinance is applied rigidly this is ridiculous; people could not have a basement or build a parking lot.  He said not everyone likes the decision, but it was the best the Appeals Board had. 

Ms. Rybarz said there were two FOL members present, and they were denied the right to speak.  Mrs. Sprague said they were not abutting landowners and the needed to have standing to speak.  Chairman Fenton said it’s late now and asked how the Appeals Board could go against a decision it made.  He suggested that a court decision is the way to go. 

Chairman Fenton said there are certain guidelines for jurisdiction.  He said the Appeals Board instructed the Planning Board which issued Gott the permit to do this.  He said the Code Enforcement Officer is carrying out the will of the Planning and Appeals Board.  Mr. Jerabek said there is a difference between a homeowner and a business selling 26,000 cubic yards of material.  He said the gravel ordinance defines gravel as including clay etc. Mr. Fowler asked why this only applies in certain situation, and not to building a pond, for example.  Mr. Jerabek said they’re talking about sales.  Mr. Fowler asks why sales matter.  Mr. Jerabek said the gravel ordinance is focused on the gravel industry in Lamoine.  He said if one is selling gravel, the gravel ordinance applies. 

Chairman Fenton said if a property owner is digging a cellar, they can sell materials.  He said the time period to appeal has passed, and the Appeals Board can’t hear something they’ve already decided on.  He said the FOL is appealing a Board of Appeals Ruling and it should not come before this board. He said the time to appeal has expired.  He said the Planning Board did not mention the gravel ordinance in its denial. 

Kathleen Rybarz read from the March 2014 Planning Board minutes: Donaldson inquired if there would be an opportunity to discuss whether the proposed uses in this application require a Gravel Ordinance permit.  Other Board members indicated a similar interest, given the significant volume of soils to be excavated.  Holt said this matter would be discussed. 

Mr. VanAmringe said there was no action based on those opinions, and the Planning Board did not cite that in the Site Plan Review denial.  A brief discussion followed.

Chairman Fenton said the Board of Appeals had discussed this matter, and the Planning Board did not cite the gravel ordinance in its denial of a Site Plan Review permit.  He said there was a reason the decision was made the way that it was.  He said the Appeals Board discussed gravel removal information.  He said the Appeals Board is not about the make everyone obtain a gravel permit to build a cellar.

Valerie Sprague said the operation is starting at 4AM instead of 6AM.  Mr. Fowler said there is no ordinance against clearing snow at any time of day.  Mr. VanAmringe said Mr. Bearor’s clients agreed they would construct the building in a short period of time and the Appeals Board suggested that the Planning Board give them a time limit. He said the Planning Board chose to issue the building / site plan review permit without restrictions.  Mr. Fenton said the Appeals Board suggestion addressed the concerns of the FOL, and the Planning Board did what it did and he’s sorry they did not take the suggestions of the Appeals Board.

Mr. Jerabek asked what Mr. VanAmringe what he meant when he said this might be before the wrong board.  Mr. VanAmringe said the Appeals Board made every effort to accommodate, and suggested that the applicant get its project done quickly.  He said the complaint might be with the Planning Board action.  He said the only feedback the Appeals Board got from the Planning Board was that the Planning Board said the Appeals Board could not tell them what to do.  He said the Appeals Board tried for the time condition.  Mr. Jerabek said the Planning Board did not include a time limit on the project.  He said that makes it a de facto gravel operation.  Mrs. Sprague said it is affecting a lot of people.  Mr. Jerabek said he didn’t know how many months they are into this project.

Mr. Fenton said he wanted to look at jurisdiction.  He said he has a problem whether the Appeals Board has jurisdiction of a complaint filed to the CEO.  He reviewed the Maine Municipal Association Board of Appeals manual.  He said the FOL is taking the gravel issue from an enforcement standpoint.  He said under the gravel ordinance, appeals are only for the permitting process, and read the applicable section of the gravel ordinance.  He said according to the Gravel Ordinance, the Appeals Board does not have any jurisdiction. 

Mr. Jerabek read from page 13 of the MMA Appeals Board Manual.  He also read from 30-A MRSA and said state statute requires the Appeals board to hear this case.  He said the Gravel Ordinance is a zoning ordinance and the Appeals Board has jurisdiction.  He said the MMA Appeals Board Manual is quite deficient.

Mr. Bearor said he doesn’t have the MMA manual with him.  He said he understands the Gravel Ordinance is not a zoning ordinance.  He said a lot of ordinance, such as the gravel ordinance, regulate activity on land.  He said a CEO Enforcement decision, unless it says in an ordinance it is specifically applicable to the appeals process, is not.  He said case law in a case involving the Town of Waterboro is quite clear.  He said a decision is not appealable unless the ordinance says specifically that it is.  He said this would be the equivalent of having a police officer decide not to ticket someone for speeding and someone appealing that decision. 

Mr. Bearor said the appeal is untimely, and the appeals board lacks jurisdiction.  He said they could appeal this to court, and if the town is wrong, the judge would send it back to the town.  He said he doubted a judge would see this case, because it’s just too late.

Mr. Jerabek asked whether the Appeals Board was dealing with jurisdiction or timeliness.  He said it’s hard to believe that the Gravel Ordinance is not a zoning ordinance.  He cited a case called Benjamin v. Houle in Auburn that dealt with that question.

Mr. Fenton said he would like to go through one thing at a time.  He said there are lots of discussions about jurisdiction.  He said the two attorneys in the room have different opinions on zoning ordinance, and that’s why there are judges.  He said a zoning ordinance allows different activities in different areas. 

Chairman Fenton said he would like to receive information on items A-H on the printed agenda for tonight’s meeting.  He said with more information, the Appeals Board could exercise its best judgment.  Mr. Fowler said he didn’t want to vote on something that will cost the town a lot of money.  Chairman Fenton said he’s trying to take a stop to prevent that from happening.  He said he does not want to spend a lot of money and make the best decision for all parties.  He said he would like to get that done in 2-3 weeks. 

Mr. VanAmringe moved to request from that the parties in interest prepare and present briefs on items A-H on the printed agenda.  Mr. Jerabek said that would be OK with FOL.  Ms. Korty asked about the conflict of interest item.  Mr. Fenton said if someone feels there is a conflict, they should state that. 

Mr. Jerabek said when the Appeals Board met on this matter on January 13, 2015, the Code Enforcement Officer’s response was discovered on the town’s website, along with an e-mail from Gott’s attorney.  Mr. Fenton said they’ve got it so the FOL would get all the information.  Mr. Bearor said he’s more than happy to share.  Mr. VanAmringe said the town office staff has been instructed to share.  He said he does object to the attorneys discussing things amongst themselves.  A brief discussion followed regarding information dissemination.

Ms. Ohmart 2nd Mr. VanAmringe’s motion, adding that all parties of interest would be copied on all information.  Vote in favor was 4-0.

Mr. Fenton said they want all items included in the information, and they want to make sure it is done so that all parties are involved.  Mr. VanAmringe said there needs to be a deadline and a next meeting date.  After a discussion, the Board of Appeals set the deadline for information submission as March 11, 2015 and the next meeting of the Board on March 25, 2015 at 6:30 PM.  Parties will submit their briefs to the Town Hall for dissemination.

There being no further business, the meeting adjourned at 8:14 PM.

Respectfully submitted,

Jon E. VanAmringe, Secretary

Lamoine Board of Appeals

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