FOL Files Complaint in Superior Court

Lady Justice courtesy of https://voxpopulisphere.com

On August 8, 2018, John Steed, attorney for Friends of Lamoine, filed a Complaint to the Hancock County Superior Court. Also listed as Complainant was the Tweedie Trust, owner of property abutting the now-permitted Kittridge Pit expansion.

The reason for the Complaint is the opinion of FOL’s board that the Lamoine Appeals Board acted illegally to overturn the Lamoine Planning Board’s Site Plan Review denial of Harold MacQuinn’s gravel pit expansion application. The FOL team now has 30 days to prepare for a formal Appeal. FOL also seeks a Preliminary Injunction to prevent Harold MacQuinn, Inc. from beginning the removal of Cousins’ Hill in the heart of Lamoine while the matter is before the Court.

Since the Town of Lamoine had no choice but to issue the permits, the target of FOL’s Complaint is the Town. At the August 9 Lamoine Board of Selectmen meeting, FOL president Carol Korty read the following statement:

FRIENDS OF LAMOINE
P.O. Box 963, Ellsworth, ME 04605

August 9, 2018

Dear Lamoine Board of Selectmen:

Board members of Friends of Lamoine come to you with deep concerns regarding the proceedings of the Board of Appeals and its decision to overturn the Planning Board’s denial of the Harold MacQuinn, Inc. application for a Site Plan Review permit to mine all of Cousins Hill.

The Planning Board’s decision to deny the MacQuinn application was founded on an enormous amount of quantitative data, testimony and letters of over 60 Lamoine citizens, and the Board’s conscientious considerations of all aspects of the application.  The Planning Board followed all guidelines and procedures. Their process and findings for denial of the application were fully documented and presented to the Board of Appeals.

Lamoine’s Site Plan Review Ordinance clearly directs that appeals of decisions by the Planning Board should go directly to Superior Court. Documents from Daniel Pileggi, attorney for the Planning Board, and Diane O’Connell, attorney for the Board of Appeals, clearly stated the jurisdiction and review standards for the Appeals Board.  Nonetheless, at great cost to the citizens of Lamoine, the Board of Appeals disregarded their counsel. Their actions, despite their expressions of good intent, unfortunately remain a disservice to town governance and to Lamoine citizens.

The citizens of Lamoine have expressed their strong support for the Planning Board and the gravel ordinances which guide its actions.  These citizens now need to be supported by upholding full adherence to those ordinances by Town boards.

We are meeting with you this evening as a courtesy.  It is with sincere regret that we inform you that we have filed a complaint in Superior Court against the Appeals Board decision (and subsequent Planning Board’s obligatory action) to grant Harold MacQuinn, Inc. a permit to mine all of Cousin’s Hill.

An option available to you is to spend no more of taxpayers’ money on defending the Board of Appeal’s baseless decision. If as a Board, you simply do not answer the Complaint and do not defend the Board of Appeal’s action, there will be no additional cost to the Town in this matter.

Sincerely, Carol Korty
President, Friends of Lamoine

The lawsuit will be before the Court for several years during which the fate of Cousins’ Hill will remain uncertain. Harold MacQuinn, Inc. may choose to continue mining unless the Court grants a Preliminary Injunction to halt activity. If mining continues and the permits are withdrawn, MacQuinn will be responsible for restoration.

 

Lamoine Appeals Board Decision: Dig that Pit!

Fenton

At the May 22 Appeals Board meeting Chairman Hancock “Griff” Fenton, Vice Chair Jon VanAmringe and members Jay Fowler and Michael Jordan voted unanimously to overturn the Lamoine Planning Board’s denial of MacQuinn’s plan to remove Cousins’ Hill in the heart of Lamoine.

Town attorney Dan Pileggi representing the Planning Board, Appeals Board special counsel Diane O’Connell and FOL attorney John Steed all advised that the Appeals Board had no authority to override the opinions of the Planning Board on the individual criteria in the Site Plan Review Ordinance. Instead, they could only render a decision “involving administration procedures or interpretation of the ordinance”. Pileggi further advised in a March 12, 2018 memorandum:

“In its Board of Appeals application, Harold MacQuinn, Inc. has not alleged that the Planning Board committed any administrative procedural violation. Its appeal must therefore be limited to allegations that the Planning Board misinterpreted Site Plan Review Ordinance standards. To the extent that the Applicant contends that the Planning Board was simply wrong in reviewing the evidence, and in determining the weight to be assigned to specific evidence, or wrong in its interpretation of the evidence, this Board is not authorized to consider the appeal.”

VanAmringe

In other words, the Appeals Board could only decide that the Planning Board erred in “interpretation of the ordinance”. And this is exactly what they did. They decided three criteria of the ordinance, which were those the Planning Board judged were not met by the proposed project, should be “not applicable”.  These three criteria, 1. Preserve and Enhance the Landscape , 10. Groundwater Protection and 17. Stormwater Drainage, they voted to be removed from consideration. These three criteria have been used to evaluate many projects including gravel pits in the past, and it is this old Site Plan Review Ordinance the MacQuinn team insisted be used for this “do-over” application. Ten other criteria were judged by the Planning Board to have been met by MacQuinn’s application, but the Board of Appeals decided it unnecessary to call any of those ten “not applicable.”

Fowler

The Board of Appeal’s rationale for removing the three criteria which the Planning Board regarded as key for denying the MacQuinn application rested on three points. First, other criteria were deemed “not applicable” by the Planning Board: Articles 2, 4, 5, 7, 14, 15, and 19.  For example, Article 7, “Exterior Lighting” was so considered by the Planning Board since gravel pits have no exterior lighting. The Appeals Board concluded that since seven articles could be considered “not applicable” in the MacQuinn application, so could Articles 1, 10 and 17.

Second, since Gravel Ordinance criteria seemed similar to those of the Site Plan Review Ordinance, if the Gravel Ordinance criteria were met, so should be the Site Plan Review criteria. So the Gravel Ordinance criterion #1: “Will not unreasonably result in water pollution, nor affect adversely existing ground water, springs or ponds;” as overturned by the Appeals Board on May 8 and 9, was similar enough according to this logic to Site Plan Review article 10, Groundwater Protection. “The proposed site development and

O’Connell and Jordan

use shall not adversely impact the quality or quantity of groundwater in the aquifers or any water supply systems.” So according to the Board, even though the Gravel Ordinance does not mention water supply systems like Cold Spring Water Company, it is similar enough that the Site Plan Review criterion should be ignored.

Third, the Article 1, Preserve and Enhance the Landscape and Article 17, Stormwater Protection were tossed out because no other gravel projects in the past were rejected because of these. Board members asked rhetorically why this should be the case, to which one attorney responded, “It’s the scale of the project”.

On May 29, 2018 the Appeals Board will meet again to compose their “findings of fact” for their overturning of the Planning Board’s denial of MacQuinn’s Gravel Ordinance application. At this meeting they will also set the date for composing “findings of fact” for their Site Plan Review decision.

On June 4, the Lamoine Planning Board will meet but will probably not discuss the decisions by the Appeals Board until July as it is not on the agenda.

On June 7 the Lamoine Board of Selectmen will meet in executive session (6PM-7PM, approximately) and possibly decide when to meet with town Attorney Pileggi to discuss the Appeals Board decision or pending litigation.  The public will be allowed entry after the executive session ends. It remains to be seen what actions will be taken by the town, the abutters and Friends of Lamoine to bring this matter to Superior Court.

 

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.

 

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