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Board of Appeals

Minutes - November 17, 2015

Chair Griff Fenton called the meeting to order at 6:30 PM.

Present were:  Appeals Board members Griff Fenton, Connie Bender, Michael Jordan, Jay Fowler, Jon VanAmringe; Administrative Assistant to the Selectmen Stu Marckoon, Code Enforcement Officer Millard Billings, Rick Gallegos, Barry Mills (Appellant’s Attorney), Frank (Mike) Young and Wendy Young (subject property owners), Kathleen Rybarz (abutter), Carol Korty and Matthew Bergin (subject property contractor).  Appeals Board member Cece Ohmart had informed the board prior to the meeting that she was unable to attend due to a family emergency.

Minutes – September 8, 2015 – Connie moved to approve as distributed.  Mike 2nd.  Vote in favor was 4-0 (Fenton abstained).

Friends of Lamoine v. Code Enforcement Officer – Jon said the changes to the final findings were shaded on the copy distributed.  He said the board reviewed the document at the previous meeting, but opted to wait for the chair to be present to finalize it.  It was moved and 2nd to accept the re-worded findings as final.  Vote in favor was 4-0 (Jordan abstained).

Shubert v. Code Enforcement Officer – Griff said the board had received a request from the Appellants’ attorney (Barry Mills) to postpone the meeting.  He said he concluded that the Board would continue with the prelims and set a date for the hearing.  He said he would like to stick with the agenda, and read the title of the appeal.  Mr. Mills said the characterization of the appeal read by Griff was correct.

Jurisdiction – Griff said that’s pretty simple; the Appeals board has jurisdiction over the matter pursuant to both the Shoreland Zoning Ordinance and the Building and Land Use Ordinance.  The Appeals Board voted in favor of that position 5-0.

Standing – Griff asked about the standing of the appellants.  Mr. Mills answered that the Shuberts are abutting land owners.  Griff stated that would give them standing to appeal the issuance of a permit, and the Appeals Board voted in favor of that position 5-0.

Timeliness – Griff said the permit was issued by the Code Enforcement Officer on September 21, 2015 and the appeal was filed with the town office on October 15, 2015, and therefore timely appealed.  The Appeals Board voted in favor of that position 5-0.

Conflicts of Interest – Appeals Board alternate member Michael Jordan stated that he potentially has a conflict of interest because he had issued permit # 13-29 to the Youngs when he held the position of Code Enforcement Officer (CEO).  He noted that permit was referenced in the appeal of the current permit # 15-37, which he did not issue as he is no longer the CEO.   Jon said the permit being appealed is #15-37.  Griff asked how that would work if the previous permit was referenced in this appeal.  Mr. Mills said the other permit is not before the board.  Griff said he preferred to have full disclosure to all parties to identify any potential problems up front.  Mr. Mills says he’s reluctant to accuse anyone of a conflict.  Mr. Fenton said he wanted all parties to be comfortable with the board that will hear the case.  Mr. Mills said he would prefer to err on the side of caution, and this does impact a prior permit, so possibly there is a conflict.  Jon said recusal is a matter of perception, and if there is an appearance of a conflict and Michael is willing to recuse himself, it makes sense.  Jay said it might be better to have Michael step away.  Jon asked if that would preclude Michael from testifying.  Mr. Mills said it would not.  Administrative Assistant Stu Marckoon said Maine Municipal Association advises that those who do declare a conflict and are not to act on an appeal should not sit at the table with the board.  Without objection, the board agreed that Michael would not participate in the decision.  A brief discussion followed.

Quorum – Griff asked if having four members present would be acceptable, or if member Cece Ohmart could hear the case if she is present for the next meeting.  Mr. Marckoon said that MMA had advised in the past that board members should be present for the entire process.  Mr. Mills asked if that meant she would not take part.  Griff said he would check with MMA whether a member has to attend just the entire hearing or be present for the entire process.

Type of Hearing – Griff said he felt this should be an administrative hearing.  Mr. Mills said the ordinance requires a de novo hearing.  The Board looked at a copy of the ordinance that Mr. Mills possessed which he said was printed from the town’s website.  Stu printed a section of the current ordinance which deals with appeals, and there may be a conflict between the ordinances. (Note: following a brief discussion later in the meeting, it was discovered that the section copied was only part of the appeal section, and Mr. Mills indeed possessed the current copy of the ordinance.  The entire section was subsequently copied and distributed to the Appeals Board).  There was a discussion about the type of hearing and Griff said the Board would set the type when the hearing is held.

Rules of Procedure – Griff suggested that the hearing format have the appellants state their case, the defendant could go second, and each side could a rebuttal.  He said the Board would then discuss the evidence and render a decision.  Mr. Mills asked for clarification, saying it was his understanding that his clients (the Shuberts) would go first, followed by the Youngs and the Town.  A brief discussion followed as to who the defendant actually is. 

Matthew Bergin, the contractor and a relative of the Youngs, asked if anyone with an interest in the matter could testify.  Griff said sometimes that is allowed.  The Board voted 4-0 to adopt the format proposed by the chair.

Jon asked if there was a property survey available.  CEO Millard Billings said there was a submission after the fact.  Mr. Mills asked how the appellants could get a copy.  Mr. Billings said he had a letter from a surveyor regarding setback and that stakes were placed at the required distance.  Jon said all parties should get a copy of all the evidence.  Mr. Billings noted that the ordinance does not require a formal survey, just the letter.  Griff said if a survey existed, it would be helpful to the board.  A lengthy discussion followed regarding a survey.  Jay asked CEO Billings if he had approved permit # 15-37.  Mr. Billings replied that he did.   Mr. Mills said he would like a copy of the survey.  More discussion followed regarding the existence of a survey.  Mr. Young said they would be happy to provide one and Jon said all parties would get a copy.  CEO Billings asked if the Appeals Board was asking the Youngs to provide something that the ordinance does not require.  Griff said the request for the survey was because of issues related to it.  CEO Billings said he was not sure that an actual survey was done, only a sketch showing the project in relation to the high water mark.  Mr. Young confirmed that was all that they had done.  He said they were trying to establish the legitimacy of the 100-foor setback mark.  CEO Billings said he took pictures of the stakes that were pounded in relative to the newly permitted structure. Mr. Young said a stop work order issued by the CEO was lifted as a result of the survey, but out of respect to the Appeals Board process, they’ve not resumed construction. 

Griff said the appeal raised five different concerns of the appellant.  He said his concern is that it might be difficult to determine those concerns from just a sketch.  Mr. Young stated again that they don’t have a full survey. Griff said he was trying to think ahead to information that would be useful at the hearing.  Mr. Young said the appellants have made some assumptions in regard to lot coverage.  He said they have not finished remediation of the grass areas because they’ve not finished the project.  He said there has been an historic adversarial relationship between property owners. 

Mr. Bergin asked if it would be unconventional to request a site visit.  Griff said the Board has conducted such visits in the past as part of the hearing and fact gathering process.  A brief discussion followed.  Jay said the Board could only go with the information the CEO had to go by.  Mr. Billings said he has pictures and sketches, but not with him tonight.   Jon said the burden falls to the appellant to prove their five points.  Jay said there is a lot of history to this.  Mr. Mills said some of the requirements in the Shoreland Zoning Ordinance are not addressed in the application; for instance, lot coverage.  He said in a de novo hearing, the burden of proof is on the applicant, not the appellant.

Mr. Young asked if ignorance of the ordinance by the applicant is an item for discussion.  Griff said he did not know.

Mr. Marckoon asked what information the Board would like from the town.  The Board indicated the paper work that accompanies permit # 15-37 would be needed.  CEO Billings asked whether the previous building permit was relevant.  Griff said that was not part of the appeal, and is irrelevant.

Hearing/Next Meeting Date – Mr. Young asked if the hearing date could be expedited as he has a slab exposed to the weather.  After a brief discussion about possible dates, the Appeals Board set Wednesday, December 2, 2015 at 6:30 PM as the hearing date.  Mr. Marckoon asked whether the parties should be notified by certified mail.  Griff said that has how it is usually done.  Both the appellants and the Youngs said e-mail notifications are desired.  Notices are to go to the Appellants, the Youngs and abutting property owners.

Appeals Board Ordinance Workshop – Griff moved to submit a revised draft of the proposed ordinance for the December 2, 2015 meeting for review and, if appropriate, to distribute to the Planning Board and others for input. Michael 2nd.  Vote in favor was 5-0.  Griff said that will be at the top of the agenda for December 2nd.

Other Business – Griff said the proposed gravel ordinance just turned down by the town meeting leaves the current ordinance in effect, which, among other things, requires people to obtain a gravel permit if “x” number of yards of gravel are removed.  He said some basements exceed 500 cubic yards of excavation.  He said his question is whether a person building a new house would have to get a gravel permit to dig their basement.  Jay said the town has talked about this for years.   CEO Billings said if it’s a permitted development, he would consider the gravel permit issue irrelevant to the permit.

Jon said a literal reading of the Gravel Ordinance got into some red herrings.  He said the ordinance that was turned down contained a lot of good clarifications that made a lot of sense.  He said the only controversial issue was setbacks.  He said someone has to decide whether to propose another revision with the contentious issues removed.  There was a lengthy discussion about the current state of the gravel ordinance.

There being no further business, the board opted to adjourn at 8:12 PM.

Respectfully submitted,

Jon VanAmringe, Secretary