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.

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.

Public Hearing Part Three

On Wednesday, November 9, 2017 Lamoiners gathered in the school gymnasium to speak their minds about the proposed pit expansion by Harold MacQuinn, Inc. Community organization Friends of Lamoine has “standing” in this process, meaning they had the same rights as abutters (land owners directly adjacent to the pit). Because of this, FOL’s and abutters’ testimonies were first.

FOL’s new attorney, John Steed of Ellen Best Law of Blue Hill and Stonington, ME, made an opening statement considering the “do over” to be a poor example of legal procedure since it was negotiated between attorneys and not the result of a court mandate. He also criticized MacQuinn’s application as not current, lacking proper updates since the original 2012 application. He found this especially inadequate given the town-wide vote against new gravel pits. Finally, he made a statement again requesting Planning Board member Richard McMullen’s removal due to his open support of the pit expansion as he stated in a video of the 2014 hearing which was for the same application. At that time, McMullen was not a Planning Board member.

Carol Korty, Friends of Lamoine member, submitted a six page document detailing what FOL members believed were reasons to reject both the gravel and site plan review applications, signed by 54 Lamoiners.

FOL member Bruce Gillett then discussed a study he conducted showing that the area within 1/4 mile of the pit boundary to be the area of Lamoine with the highest population density. As the “center of Lamoine” he concluded, the Planning Board must weigh carefully whether it was appropriate to site a large pit there. His testimony drew applause, as did all testimony against the applications from then on.

John Holt, as representative of abutter Cold Spring Water Company, reiterated concerns with the water supply serving 54 customers, including the Lamoine School, from a well adjacent to the proposed pit expansion. At issue was whether the Cold Spring aquifer was sufficiently separate from the aquifer below Cousins’ Hill and could be safeguarded against pollution and a reduction of flow. He also advocated several additional safeguards should the permit be granted.

FOL member Catherine deTuede, read a statement encompassing real estate values, historical land uses and natural beauty as reasons to reject the application. She also highlighted the importance of preserving the ice age geology of Lamoine and noted that Cousins’ Hill is the last intact esker.

Susan Wuorinen spoke of the importance of pure water from the gravel aquifer and the dangers of dust inhalation and how the danger increases as the particles decrease in size. She said the most dangerous dust is invisible, under 10 microns, and gravel operations are sources. She pointed out that no provisions exist in the application for monitoring dust levels, and that other states like Texas have very stringent laws separating gravel operations from residential areas.

Carol Korty then read a personal statement regretting that the views seen by people approaching Lamoine are now of scarred hillsides and that cherished public vistas are subject to the profit motives of private land owners. Hills and pure water are non-renewable resources, she argued, and must be placed above renewable resources in relative importance, especially considering the long life of the pit expansion.

Mill Road resident Valerie Sprague submitted a statement signed by many of her neighbors detailing how life has changed since gravel mining has encroached. She sited noise, dust, difficulty selling property and increased traffic.

Kathryn Gaianguest reported on her questionnaire to local realtors. As a trained sociologist she stated that her questionnaire methodology was according to established sociological discipline. She reported that the 10 respondents of 29 sent out represented a very good return (34%). In the responses, realtors mostly acknowledged the effect of proximity to Lamoine’s gravel pits on the price, marketability and sales of Lamoine property. Only 3 respondents replied that the proposed pit expansion should have no effect on property values in the area. Realtor comments agreed that nearness to pits had the biggest effect on real estate, especially if the property were situated on a road with high truck traffic.

One lone supporter, abutter Glenn Manring, voiced his opinion that the gravel pit has been a good neighbor to him. He said gravel trucks were driven by better drivers than typical local vehicles and that he didn’t find noise, dust or home value to be issues. He recommended approval without “personal agendas or nepotism getting in the way”.

After an hour and twenty minutes the floor was turned over to comments from the general public. Former Planning Board member Gordon Donaldson pointed out that MacQuinn’s application must “make the case” that the project should go forward, with the interests of the community in mind. He maintained that the application has a weak and non-existent restoration plan, is lacking in procedural safeguards and says “where practical” in reference to maintaining a 2.5:1 slope of the land, and no such qualifier exists in our ordinances. Also, he had the same concern about three wetlands near the pit that others voiced about the Cold Spring aquifer. Nothing in the application claimed that these wetlands would be separate and protected under the proposed expansion. He also mentioned what he considers a poor track record of restoration by the applicant.

Willem Brutsaert, civil and environmental engineer with a specialty in hydrology, took the floor and repeated his assessment that the removal of Cousins’ Hill will cause Cold Spring to stop flowing. His support of this belief is that Cold Spring flow is not dependent on seasonal rainfall but instead has flow characteristics indicating a much larger aquifer, proving connection to the aquifer under the hill. It is MacQuinn’s hydrology team’s contention that Cold Spring draws from a “perched” water table, a separate aquifer, and that it will not be affected by pit operations since it is separated by a clay layer. Brutsaert also warned about inevitable hydrocarbon spills.

MacQuinn’s hydrogeologist Mike Deyling, vice president of CES Inc., rebutted Brutsaert on the basis that his presentation ignores the presence of the clay layer, which Deyling’s study shows, and which he claims separate the two aquifers. He also noted that test wells on both sides of the clay layer have a water level much different from each other, and that if the Cold Spring’s aquifer were connected; the levels should be similar.

Former Planning Board member Jim Gallagher focused on Cousins’ Hill as a prime example of the balance between profits for the individual and the greater needs of the community. This balance was established early in our democracy and it is our right as a community to exercise today. He said MacQuinn’s attorney argued that “beauty” was a quality too vague to be considered. Dr. Gallagher argued that “natural beauty is a real phenomenon and part of the intricate organism that is our community”. The application should be rejected, he argued, because by destroying the hill, a major part of the community is also destroyed.

Charles Brann was born and raised in Lamoine, served in the armed forces from 1950 to 1972 and said he is bewildered by having learned that water runs downhill, but not in the case of Cousins’ Hill according to his reading of the application. He believes Cold Spring will dry up, home values will diminish, and MacQuinn should pay for new wells for all customers.

John Holt stood this time as a private citizen and announced his recommendation for denial.  He felt our Site Plan Review Ordinance’s first criterion, that a project must “preserve and enhance the landscape” is not met by this application. He supported this contention by stating the need to balance the rights of owners of nearby properties with those of the applicant. The landscape will be unalterably changed by the hill’s removal and so it will “cross the line” from positive to negative for the first criterion.

Ian Heyse said he was sad to see Lamoine’s version of “mountain top removal”.  He asked Paul MacQuinn on behalf of the young people of Lamoine to, “Please pull out the application”, and “maybe the town will name the hill after you”.

Nancy Pochan agreed that it really was “mountain top removal” and “once it’s gone, it’s gone.”

John Steed, lawyer for Friends of Lamoine, reiterated the various arguments against approval and asked the Planning Board to include the non-FOL testimony into the record. He also made note that Cousins’ Hill is the tallest hill in town and its removal was not “the right thing to do”.

Jane and John Pette wrote a statement, read by Valerie Sprague, recommending denial. They contend that MacQuinn’s gravel operation often started earlier than allowed, 3:00 AM, and that they therefore didn’t trust the company to follow the law if the permits are granted.

Irene Laney stated concerns about natural beauty and water quality and wondered if a neutral study could be commissioned to address her water concerns. She felt the work commissioned by MacQuinn could not be trusted.

Dr. Gaianguest made a personal statement suggesting that the enormity of the effect on Lamoine of this 100 acre pit requires two formal studies: full and independent environmental and community impact studies.

Planning Board member David Legere made a request of the town attorney. He asked if the poor record for restoration by the applicant can be considered when making his judgment on the new pit application. Attorney Dan Pileggi said the board can consider credibility questions when evaluating the applicant but cannot consider “extraneous” information.

Dr. Gallagher then urged the board to take more time to read all the submitted information and postpone the scheduled November 14 meeting date, at which time the review process is to begin.

FOL attorney John Steed again took the mike to request that the time for document submission be extended beyond tonight’s meeting until the following Monday, 11/13/17.  A motion by David Legere to close submissions was then voted upon. The vote was unanimous. Acting chairman Bamman then held a vote to adjourn, also unanimous.

 

Public Hearing Part Two

At the first Public Hearing on the Kittridge pit expansion permit on September 27, attendees had little opportunity to voice their opinions. On November 9, Lamoine’s public will be able to tell their side. Will the new pit “preserve and enhance the landscape”? Will it “result in unsafe or unhealthful conditions”, “result in water pollution” or “adversely affect surrounding properties”? All these criteria are in our Planning Board’s checklist and Lamoine citizens will let them know how they feel at 6:30 PM on Thursday, November 9, at the Lamoine School.

One of the claims by the MacQuinn attorney at the first hearing was that no one has complained about uncovered loads of gravel coming out of the Kittridge pit. This was refuted by two audience members. One had complained to the wrong authority and another had his complaint misplaced at Town Hall. It was pointed out how difficult it is to make a special trip to Town Hall to fill out a form only to have it lost or ignored. For that reason we now have the Town of Lamoine Complaint Form in our Document Vault in the middle column.

1 2 3 4 11