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Board of Appeals

Minutes - February 12, 2018 (Draft, subject to correction)

 

Called to order by chair. Present were: BOA members Griff Fenton, Jon Van Amringe, Jay Fowler, Mike Jordan and Connie Bender. Other attendees: In no particular order, Katie Foster, Edmond Bearor, Paul MacQuinn, Kathleen Rybarz, John Steed, Catherine de Tuede, Kathryn Gaianguest, John Holt, Carol Korty, Daniel Pileggi,

Approved minutes from last meeting,  5-0

Intro everyone on the BOA to the attendees

Chair addresses having legal advisor present. Diane O’Connell

Points of Order:  Not a public meeting, this is a BOA meeting. Only representatives of attendees with “standing” shall speak.

Chair goes through the history of the case before them, starting in 2012 ending in 2017.

Agenda: Item 1, jurisdiction.

Counsel advises if BOA has jurisdiction to hear this appeal under the latter version or the earlier version (2011) of the ordinance.

Attorney for MacQuinn advises that there was an “agreement” between both parties (Atty for McQuinn and the attorney for the Planning Board) to go with the “agreement”.  Planning Board Attorney agrees. Chair asks for copy of “agreement” for the record. The attorney for Friends of Lamoine (FOL ) objects to this. There was discussion among all three attorneys regarding this matter. 

Chair asks John Holt when the first meeting took place regarding the permit. JH stated it was in 2012, under the 2011 ordinance. Thoughts are that the original application was ongoing throughout the entire time between 2012 and the time that they went to court over the denial.

What went to court was a complaint about 3 members of the planning board, not the denial. In fact the denial went to the BOA. BOA decided to wait on the court ruling on the complaint. The case was dismissed, an “agreement” between the attorneys was put in place. The appeal was dropped and the matter started over. JH agreed to recuse himself from the planning board regarding this matter.

Motion by BOA to hear the case under the 2011 ordinance.  Passed 5 – 0.

BOA attorney:  2 different ordinances have 2 different appeal processes.   In the Site Plan Review (SPR) process the BOA has less authority to hear than the gravel ordinance.  Should they stay the appeal on the gravel permit until the site plan review appeal has been determined. Discussion between the 3 attorneys regarding this matter.

Under the gravel ordinance, it goes to the BOA. Under the SPR, it says the BOA can only hear an appeal regarding the administrative process. If it’s an appeal regarding the denial, it has to go to court. The question is can the BOA review the SPR denial. What is it that they are complaining about and what are they appealing. Is this an error of interpretation or something else.  Vagueness is a constitutional issue that needs to go to the court? 

The motion: Do we have authority to hear the SPR? Motion to hear the SPR appeal as a de novo hearing and we have the authority under section A? Motion by Jay, Second by Jon. vote 4 yes, nay 1. 

 

Standing: FOL (501c4). Planning Board, MacQuinn, Cold Spring Water, Trust as an abutter.

Motion for standing: following listed parties, Mr. MacQuinn and reps, planning board and their reps, Cold spring water and their reps, FOL and their reps, and Tweedie Trust and their reps.

Voting on each one: MacQuinn yes, PB yes, FOL 3 yes-2 no, Cold Spring Water yes, Tweedie Trust yes.

Time limit of appeal finding? Within 30 days?  Yes

Motion that they met the time limit issue. 5 – 0.

Conflict of interest:  poll the board for a conflict of interest.  nothing from the BOA.  FOL asked that Mr. Fowler be recused. Mr. Jordan was also requested to recuse himself.  Several of the standing members brought up issues against both Mr. Fowler and Mr. Jordan.

Motion: Motion to allow Mr. Jordan to hear this matter 4-0.  Motion to allow Mr. Fowler to hear this matter. 4-0.

BOA make-up: 5 members:  Mr. Jordan is an alternate serving as a member in this matter.

Hearing format: Mr. MacQuinn to go first, then the town, then the others with standing.

FOL attorney asking if a public hearing will come into this matter?

Discussion regarding processes and procedures during the next meeting.

Hearing schedule: March 26th 6:30 pm and March 28th 6:30 pm All submissions by March 12th.

Other considerations: none.

This meeting will continue on March 26th.

The BOA went into executive session.