Cousins Hill: Will it Disappear?

A major Lamoine landmark may be removed if Harold MacQuinn Inc. has its way. The hill at the corner where Douglas Highway turns left into Lamoine Beach Road may soon leave Lamoine, one truckload at a time.

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Cousins Hill from Bar Harbor Golf Course

Didn’t Lamoine change it’s Land Use ordinance to prevent new gravel pits in the Rural and Agricultural Zone on June 10, 2014?   Yes it did, but this pit expansion application was made before the ordinance change and thus is exempt.

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An approximate outline of the Cousins Hill property from Google Earth

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Cousins Hill’s future? This is another of Lamoine’s pits.

The property, which begins 670 feet from the corner and ends 1,747 feet further up Douglas Highway was recently (December 27, 2013) sold by the Miro family to MacQuinn. In the late 1980s the Miros removed at least 12,750 yards of gravel without a permit and received a hefty fine from the town (Bangor Daily News, May 31, 1991). Since then the scars from this activity have only partially healed. On the north side MacQuinn has an active pit, and acquiring this parcel means the existing pit can be expanded and excavated to at least 70 feet below the surface of Douglas Highway according to MacQuinn’s application. Cousins’ Hill would surely disappear and become Cousins’ Crater. Since the application for this pit predates our June 10 “no new pits” vote, that zoning change can’t stop it, even though Lamoiners turned out in impressive numbers at a town hearing on January 8, 2013, to voice their opposition.

IceAgeTrailThis hill has been specifically identified on UMaine’s Ice Age Trail Map as a geologically important feature, along with Cadillac Mountain and The Bubbles on Mount Desert Island (see inset). Furthermore, its proximity to the closest thing we have to a town center, the school, fire station, cemetery and Baptist Church, means Lamoine will forever be defined by the pit that will result.

Our Lamoine Planning Board made the decision to deny the gravel extraction permit on May 13, 2014, on the basis of adverse impact to the landscape and incompatibility with the Comprehensive Plan. In a statement, Planning Board chairman John Holt said,

While it would be a stretch to assert that this hill is to Lamoine what Blue Hill is to that community or Tucker Mountain is to Sullivan, I do consider it a unique natural feature which is an integral part of Lamoine’s sand and gravel aquifer geology and I am opposed to efforts to further destroy it by expanding extraction on the remaining portions of the hill.

I cannot, in good conscience, find that this application meets this review standard.

Later on, he talked about the effects on nearby residents:

For all these [60 nearby] residents, the proposed gravel operations would add yet another layer of noise to that already generated by the substantial gravel truck traffic which passes by their homes and neighborhoods on the way to other gravel pits further down Lamoine Beach Road. The Board has received much verbal and written testimony with regards to the adverse impact on the quality of life, including statements about the harmful impacts on property values.

The area of town where the gravel operations are proposed is the most densely populated area of town. I think it wrong to permit such a large scale gravel operation in that setting.

So the Lamoine Planning Board made its ruling: Cousins’ Hill should remain and Harold MacQuinn Inc. may not remove gravel. But the corporation fought back. They initiated an appeal to the Lamoine Appeals Board. They also initiated a lawsuit against two members of the Planning Board, charging them with bias: Chairman John Holt they said, had a conflict of interest because he was president of the Cold Spring Water Company. Cold Spring supplies water to nearby residents including the Lamoine School, and draws its water from land abutting MacQuinn’s Cousins’ Hill property. Also, Planning Board member Gordon Donaldson made an error in sending an email to other Planning Board members: he was supposed to CC to Town Administrator Stu Marckoon in order to have a formal record (required by law) of all correspondence between Board members. These two Planning Board members are, according to MacQuinn Inc., therefore unfit to rule on this permit. In the Appeals Board meeting of July 14, members decided to not consider the appeal until the Superior Court ruling on the two Planning Board members. This delay has given Lamoine citizens lots of time to wonder what will happen next.

At the December 5, 2016 Lamoine Planning Board meeting, Chairman John Holt announced that a settlement was reached between the Town of Lamoine and Harold MacQuinn, Inc., regarding the lawsuit brought by MacQuinn against the town, alleging bias in the denial of an expansion of the Kittridge Pit on May 13, 2014. The proposed settlement is simply a “do over” of the application process without John Holt as chairman and voting member. Because the original application was made in 2012, Lamoine’s old 2011 Gravel Ordinance  and Site Plan Review Ordinance will be in effect, allowing 50 foot setbacks to adjoining lots, rather than the 100 feet our new ordinance requires. Since the application will now be done over before the Planning Board, the Lamoine Board of Appeals will not consider an appeal.

The basis of MacQuinn’s original appeal, in addition to the “due process rights” they claim were violated by the two members, is that the two areas in the Planning Board’s decision where the application fell short were not “lawful standards”. The areas in question, “preserve and enhance the landscape” and “consistent with the Town’s Comprehensive Plan” will be argued by MacQuinn Inc. when the time comes:

At the appropriate time, the applicant will brief the issue of whether these are lawful standards.

Don't we have enough of these already? Goodwin pit.

Do we already have enough of these? Goodwin pit.

Historically, the Planning Board, the Appeals Board and even the Superior Court have upheld decisions made on the basis of interpreting these two parts of the Comprehensive Plan. For example, on July 1, 2010 in Doug Gott and Sons VS. Lamoine Planning Board, the Appeals Board’s decision read,

a gravel mining operation adjacent to residential properties is not in compliance with the Comprehensive Plan.

Since Cousins’ Hill rises over the center of Lamoine, it would seem that the Planning Board has a strong case, but MacQuinn Inc. is ready with case law throwing out what it calls “soft” or unquantifiable laws like our “preserving and enhancing the landscape”.

Another issue before the Appeals Board is MacQuinn’s contention that it is entitled to a de novo review of the issues it has raised under both the Gravel and Site Plan Review Ordinance.  A de novo review would mean that the Appeals Board would take evidence, make factual findings and apply the applicable town ordinances entirely independent from the decision of the Planning Board. On October 9, 2014, the Select Board directed the Appeals Board to seek a legal opinion from the town attorney as to whether a de novo review is required.  If it is determined that the Appeals Board can review the decision of the Planning Board in its appellate capacity only, it would be limited to reviewing the evidence presented to the Planning Board and determining whether the Planning Board committed error in making its decision. In other words, will MacQuinn be allowed to have a “second bite of the apple” with a de novo hearing?

With the second try for the Kittridge Pit expansion application in 2017, the outcome was the same, namely the permits were denied by the Planning Board. As expected, MacQuinn appealed to the Lamoine Appeals Board in early 2018. By this time the question of de novo was resolved: De novo would be allowed with the appeal of the Gravel Permit, but not with the Site Plan Review Permit. The Appeals Board was therefore limited to deciding whether the Planning Board made any procedural errors only in its Site Plan Review decision.

Given the constant presence of Town attorney Daniel Pileggi during the Planning Board’s deliberations, it was highly likely there were no procedural errors. How then, could the Appeals Board overturn the Planning Board’s Site Plan Review permit denial? By rejecting the criteria upon which the denial was made! In other words, since the Planning Board routinely ignores criteria which don’t apply to an application, like lighting for an unlit business, these criteria get a “NA” on the form. So that’s what the Appeals Board did on May 22, 2018 with the three criteria upon which the Planning Board based their denial, thus overturning the denials. In July, the Lamoine Planning Board signed the permits.

Friends of Lamoine is fighting back with a Complaint in Hancock County Superior Court. This Complaint will become an Appeal in September of 2018 and will take years before a resolution.

As of right now, there is no reason to assume Lamoine can successfully prevent this giant new pit in the heart of town. If the permit is granted who knows what will happen to our town, our property values and our water supply? The fate of Cousins’ Hill now rests with the Court.

What can you do as a citizen of Lamoine to follow and figure out what is happening? You can sign up for updates from the Friends of Lamoine. Either join our email list or sign up on the website. Also, we need money, probably over $10,000 before all is done. Email us at friendsoflamoine@gmail.com or send a check to Friends of Lamoine, PO Box 963, Ellsworth, ME 04605. Thanks!

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