Appeals Board Overturns MacQuinn’s Gravel Denial

Aerial Photo presented by MacQuinn on 5/9/18. The photo has north on the bottom with Lamoine Corner and Mill Road on the top. At the extreme top left is the Gott pit.

At Tuesday and Wednesday nights’ (5/8/18 and 5/9/18) Lamoine Board of Appeals meeting, both Gravel Ordinance criteria, which were denied by the Lamoine Planning Board in November of 2017, were approved, meaning MacQuinn, Inc. now has approval for a gravel permit for the removal of Cousins’ Hill. What is still needed however, is a reversal of the Site Plan Review denial, which will be resolved on May 22, 2018 at 6:30 at Town Hall. The two Gravel Ordinance criteria are:

  1. Will not unreasonably result in water pollution, nor affect adversely existing ground water, springs, or ponds. Planning Board vote: 2 yes, 3 no. Appeals Board vote: 4 yes, 0 no.
  2. Will not adversely affect surrounding properties. Planning Board vote: 2 yes, 2 no, one abstention (failure to pass). Appeals Board vote: 4 yes, 0 no.

Chairman Griff Fenton argued that the word “unreasonable” in the first criterion should preclude what Fenton called the “one in a million” chance that Cold Spring Water Company’s source could be adversely affected by MacQuinn’s mining activity.

At Wednesday night’s meeting the second criterion was examined. An effort was made to look at recent property sales to determine any effects on sale price of proximity to the existing MacQuinn pit. Another effort was made to measure distances to the nearest houses and compare them to the rejected Gott pit application of 2010. In both instances, the board ultimately decided that the criterion was met. Tipping the balance to approval was Paul MacQuinn’s promise to abide by 100 foot setbacks if the permit is granted. The application gave him the right to mine up to the 50 foot line for the first three years. Since the Appeals Board cannot issue gravel permits, it will instruct the Planning Board to do so.

While it appears that the Appeals Board is on a path to overturn the Planning Board’s denial of the expanded Kittridge Pit, resulting in Cousins’ Hill removal, it must be remembered that in the consideration of the Gravel Ordinance, the board had de novo, or “as new” powers. For the Site Plan Review Ordinance however, the Appeals Board only has administrative review powers, meaning that they can overturn the Planning Board’s decision only if they find a mistake in the way the Planning Board did their work. They cannot consider the decisions by the Planning Board on each criterion. The Planning Board rejected the Site Plan permit application based on:

  1. Preserve and Enhance the Landscape. 1 yes, 3 no.
  2. Groundwater Protection. 1 yes, 3 no.
  3. Stormwater Drainage. 1 yes, 3 no.
  4. All applicable standards of the Lamoine Gravel Ordinance, as amended, shall also be met. While this was denied 1 to 3 it can be assumed that this criterion would have to be overturned based on the Appeals Board’s reversal.

Whether the Appeals Board will abide by the administrative-only review as town legal counsel has advised, or if they find a procedural flaw in the Planning Board’s work remains to be seen on May 22. With three attorneys present at the Planning Board’s past deliberations, it’s hard to imagine a procedural flaw.

Regardless of what happens on May 22, there is likely to be a Hancock County Superior Court case to appeal the outcome.

Ellsworth American Article on MacQuinn Appeal

Jack Dodson of the Ellsworth American did such a fine job of summarizing the March 26 meeting we asked him if we could just reprint his article:

Thursday, March 29, 2018

Lamoine board hears gravel plan

By Jack Dodson LAMOINE — The question of whether to approve a gravel pit expansion in Lamoine that could remove a large hill was sent to a new tribunal Monday night: the Appeals Board.

The pit, which is owned and would be operated by Harold MacQuinn Inc., would expand the site from its current 65 acres to about 110 acres.

In the six years this expansion application has been deliberated, it has never made it to the Appeals Board. That’s because in 2014, after the first round of Planning Board deliberations ended in a rejection for MacQuinn,

his team sued the Planning Board, citing conflicts of interest among the members.

A court battle led to the issue being reheard from the beginning before a Planning Board whose composition had changed. The Planning Board again denied the pit expansion in November, and MacQuinn’s team appealed the decision.

Ed Bearor, MacQuinn’s attorney, started off Monday’s Appeals Board hearing by focusing on the hydrogeology of the plan. “The big issue, we’ve always thought,” Bearor said, “was the groundwater and the proximity of Cold Spring Water Co. to the pit. It’s been exhaustively studied.”

Cold Spring is a public water supply that serves the Lamoine Consolidated School, the town fire department, a church and about 50 local homes. The Planning Board, in its November rejection of the pit expansion, cited unknowns about how a nearby gravel operation would affect the water.

Specifically, the planners were pointing to conflicting interpretations of how the waters underneath and near the pit interact. MacQuinn’s team said the underlying aquifer isn’t connected to Cold Spring Water Co.’s supply, but Willem Brutsaert, a hydrogeologist who lives in Lamoine and formerly taught at the University of Maine, submitted statements to the Planning Board arguing that Cold Spring’s water draws from the aquifer.

The gravel mining operation, Brutsaert has said, could lead to Cold Spring’s supply running dry.

Bearor began by giving an overview of the research that had been done on the topic. He cited studies carried out by Mike Deyling, the geologist hired by MacQuinn to study the plan in 2012, who has said he believes the two bodies of water are not connected.

Since Deyling began working on the application five years ago, the town’s consulting geologist, Robert Gerber, has agreed with his findings. Gerber was chosen by the Planning Board in 2013 to peer review Deyling’s findings, because board members wanted a separate opinion.

Bearor read a letter from Gerber sent to the Appeals Board earlier this month, which he called “the most definitive statement that one could ever see from a hydrogeologist that this won’t affect Cold Spring Water Co.”

Deyling then got up to present to Appeals Board members his process in the past six years for researching and tracking the pit’s potential effects.

“The question is where exactly is that spring and what do we know about that spring?” he said, summarizing some of his original research questions. “It’s not located at the pit—it’s about a quarter of a mile away.”

He explained that Cold Spring is likely big enough that it’s “really its own aquifer,” meaning it may not be drawing its source from the aquifer under the pit.

As for oil spills on site, he said, the oil would never end up in Cold Spring.

“If you had a spill within the pit,” Deyling told Appeals Board members, “the impact would hit this lower water table … and would move away and never encounter Cold Spring … hydraulically, it can’t happen. The physics won’t allow.”

Another major issue in the case is the question of natural beauty. Planning Board members in November cited concerns about whether this expansion would comply with Lamoine’s rules regarding the preservation of the town’s landscape .

“Some people may say, ‘Wow, that’s pretty unique geology,’” Deyling said, referring to the hill that would be lost as part of the expansion. “That’s the thing about geology: it’s all unique.”

He acknowledged that this area is interesting because it’s a spot where multiple geologic systems interact, but he said that isn’t necessarily rare.

His assessment conflicts with that offered by Harold “Hal” Borns, a geologist with the University of Maine who has studied the Downeast region’s landscape. Borns was invited to testify Monday night.

During the meeting, he said the site has scientific value to the community of Lamoine.

“There’s value, in the scientific sense, in this delta … it’s just a fine example o f something you have in town,” Borns said. “If you decide it’s worth preserving for noneconomic reasons, you’ve got a very good case. It’s a very unique feature.”

In an interview with The American in the fall, Borns said Lamoine was a case study in how industry can harm the natural environment. Asked Monday about this comment, he said he stands by it.

“I think the town of Lamoine is a poster child for how you destroy a town,” he said.

Appeals Board members were planning to meet Wednesday evening (March 28) to discuss the issue further.

The Wednesday meeting (3/28/2018) is still (4/2) not up on http://townhallstreams.com. This meeting contains much testimony in opposition to the pit, and we hope it will be soon be available as well as the rest of the 3/26 meeting, which is cut off at 8:30 PM. Stu is back from vacation and is catching up!

 

 

Court Rules in Lamoine’s Favor on Setbacks

When Lamoine’s 2013 gravel ordinance was passed by voters it included an increase of the distance (“setback”) between a gravel pit and the lot line from 50 to 100 feet. Harold MacQuinn, Inc., Doug Gott and Sons Inc. and John Goodwin Jr. and Sons, Inc. responded by insisting Lamoine form a “gravel work group” composed of citizens and gravel industry representatives to rewrite the ordinance, to avoid being sued. A group was formed; it met and forwarded recommendations to the Board of Selectmen who wrote a new version of the gravel ordinance that returned the setback to 50 feet. That proposed ordinance was rejected by Lamoine voters on November 2, 2015. As promised, the gravel companies initiated a lawsuit in Hancock County Superior Court in response, claiming “taking” from the value of their land.

On Valentine’s Day 2018, we received the news that the Superior Court ruled in the Town’s favor, saying,

The municipality is not required to pay compensation to a property owner every time it enacts an ordinance that adversely affects property interests.

It went on to explain that some actions are extreme enough on the part of government to require compensation, but in considering the particulars of this situation the ruling concluded,

Plaintiffs have failed to prove that the 2013 Gravel Ordinance is a taking requiring compensation under the Maine or U.S. Constitutions. If Plaintiffs expected to be able to extract gravel from the area described in the new setback requirements regardless of regulatory changes, that expectation was not reasonable.

See the Ellsworth American article here: https://www.ellsworthamerican.com/maine-news/lamoine-wins-lawsuit-gravel-pit-setback/

Other News: The MacQuinn Appeal

On Monday, February 12, the Lamoine Appeals Board met to consider how to hear an appeal by Harold MacQuinn, Inc for the Cousins’ Hill permit denial, as explained in the two previous posts. The Board stated that the 2011 gravel ordinance gives them the option to review the entire MacQuinn application “de novo”, (i.e. anew) rather than focusing on errors of procedure or interpretation the Planning Board might have made. However, the Board went on to decide, rather than re-studying the entire application, they would base their ruling on a “de novo” consideration of just the 2 criteria in the Gravel Ordinance and 3 in the Site Plan Review Ordinance that were denied by the Planning Board.  Because of this restriction, an additional public hearing will not occur, but individual criteria will be considered “de novo”. Consequently, more information may be submitted to them by the Town and by those with Standing before the March 12, 2018, deadline.

Standing was granted to the same interested parties (abutters and Friends of Lamoine) as for the Planning Board application, and they will be allowed to speak during the hearing. Regardless of the outcome, this case will likely end up in Hancock County Superior Court. The Appeals Board will meet next on March 26 at 6:30 and again on March 28 at 6:30. Members of the public may attend but may not speak.

 

No Site Plan Permit for Cousins’ Hill

Cousins’ Hill from golf course, April 2017

At the December 11, 2017 Lamoine Special Planning Board meeting, members voted to deny the site plan review permit to Harold MacQuinn, Inc. The gravel permit was similarly denied on November 14. The need for two permits from the town for a gravel pit is a unique feature of the ordinances as they existed in 2012. The Planning Board had to use the old rules to consider this application, as explained in http://lamoine.org/cousins-hill-lawsuit-settlement-do-over.

Board members present were Don Bamman (acting chairman), David Legere and Richard McMullen, missing were Chris Tadema-Weilandt and Perry Fowler. Alternate Steven Gabel-Richards was given voting privileges due to the absences. The site plan review permit was denied on three criteria of the 20 and one of the 6 Special Review Standards:

1. Preserve and Enhance the Landscape. Acting chairman Don Bamman began this discussion by paraphrasing the Purpose of the ordinance, which speaks of the balance between the rights of the landowner with those of abutting property owners. His memory of the Public Hearing was that many nearby residents did not feel that a gravel pit should be so close to the densest part of Lamoine. He did concede however, that a gravel pit cannot be expected to “enhance the landscape”. Member David Legere pointed out that with a poor record on restoration, the applicant may never return the land to an acceptable, let alone preserved, landscape. The application failed to meet the criterion in a vote of 1 to 3 with Richard McMullen voting in favor.

10. Groundwater Protection. This criterion mirrors the third gravel permit criterion which failed at the November 14 meeting. Members voiced the possible threat to the Cold Spring Water Company and said that damage to the aquifer and water source “cannot be undone”. The board voted 3-1 that the application failed to meet this criterion, with McMullen again voting in favor.

17. Stormwater Drainage. By a vote of 1 to 3, with Richard McMullen again the sole vote in favor, the board extended their concerns over water protection to include the belief that the applicant failed to provide a way to prevent stormwater from threatening contamination of the aquifer.

Section K. 3. All applicable standards of the Lamoine Gravel Ordinance, as amended, shall also be met. Since the gravel permit was denied, this Site Plan Review Permit criterion was also deemed unmet by a vote of 1-3 with McMullen once again voting in favor.

With two permits denied two times, one pair in 2014 and another in 2017, it would seem the Town of Lamoine and its two Planning Boards have rendered a solid judgment. It is not likely however, that the MacQuinn team will accept this outcome. First in line is an appeal to the Lamoine Board of Appeals. This is problematic because while the Planning Board was compelled to use the 2012 versions of the Lamoine Gravel Ordinance and Site Plan Review Ordinance, there is no such agreement to use our old ordinances before the Appeals Board. Next stop for appeal is the Hancock County Superior Court. MacQuinn, Inc. has shown a willingness to go to court in recent history for denied permits and unfavorable ordinance changes. The goal to extract the gravel under Cousins’ Hill is likely to be pursued, and the legal costs to Lamoine will possibly overshadow any tax benefits from a new pit.

Cousins’ Hill Saved….for now

At Tuesday’s (11/14/17) special Lamoine Planning Board meeting the vote against expansion of the Kittridge pit was 3 nays to 2 yeas on the third gravel permit criterion, “Will not unreasonably result in water pollution, nor affect adversely existing ground water, springs, or ponds.” The vote was tied on criterion 6, “Will not adversely affect surrounding properties”. A tie vote is a failure to pass, so the votes on both criteria count toward denial of the application.

The board was also tasked with considering the Site Plan Review permit application, but since approval was conditional on the approval of the gravel permit, acting chairman Bamman initially assumed going through the review criteria for that permit was unnecessary. This proved to be wrong, and the special Planning Board will meet on December 12, 2017 to consider the Site Plan Review application (refer to Town website to confirm this date).

After the conclusion of the review, acting chairman Bamman floated the idea that there could be conditions on the permit which may change no votes to yes, resulting in approval. Members were stumped however in coming up with what those conditions could be. Bamman suggested that a delay for several weeks could give the applicant time to propose conditions, but Town attorney Pileggi said that conditions should be specific and not arbitrary and open-ended. Member Fowler stated it seemed a waste of everyone’s time to pursue this course. A vote on a measure for continuance failed 1-4. The gravel permit was denied without conditions.

It is widely assumed that the applicant will appeal. The first option for appeal is with the Lamoine Board of Appeals, the second is the Hancock County Superior Court. During the first (2014) time this application came before the board, its denial was appealed to both. The Lamoine Board of Appeals then decided to postpone consideration until after the court made its ruling. An out-of-court settlement (to “do-over”) resulted in the Board of Appeals deciding to drop the matter. Regardless of what happens this time, if the appeal process is pursued, the outcome could be months or more likely, years away.

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