Up to the Judges Now

Oral arguments before the Maine Supreme Court in Friends of Lamoine v. Town of Lamoine took place last Tuesday, March 3rd. The Lamoiners who attended reported that the proceedings were detailed and somewhat confusing for non-lawyers. Our attorney, Max Coolidge later said in an email,

Yes we got into the weeds a bit on the procedure. But I feel good about it overall. I don’t ever like to make predictions, but I’m optimistic.

Five of the seven judges asked detailed questions and all seemed genuinely interested in the case. Several knew the expert witnesses who submitted testimony for one side or the other, and all were up to speed on Lamoine’s ordinances.

Some of our members predicted an early decision, but upon further study it is most likely to take weeks or perhaps more than a month before a decision will be delivered to the Lamoine Board of Selectmen. Anyone wishing to hear the proceedings can find the audio at  Friends of Lamoine et al. v. Town of Lamoine et al. The audio will only be available for another week or so.

Oral Arguments Scheduled in Cousins Hill Case

Oral arguments before the Maine Supreme Court are to commence at 2:20 PM on March 3, 2020, and can be listened to at https://www.courts.maine.gov/maine_courts/supreme/stream.shtml. This will not be the final act in this drama; it will take a few weeks or months for a decision.

This is the appeal to the Maine Superior Court’s overturning of the Lamoine Appeal’s Board’s overturning of the Lamoine Planning Board’s rejection of Harold MacQuinn Inc’s application for a gravel permit to take away Lamoine’s Cousins Hill.

Since the above description is so confusing, here is a brief timeline:

  • In November of 2017, the Lamoine Planning Board rejected MacQuinn’s Gravel Pit application.
  • In December of 2017, the Lamoine Planning Board also rejected MacQuinn’s Site Plan application. Both permits are needed for a gravel pit.
  • In June of 2018 the Lamoine Board of Appeals ruled on an appeal by MacQuinn, to overturn the Planning Board’s denial.
  • In July of 2018, the Lamoine Planning Board, acting on orders from the Appeals Board, approved the two permits.
  • On August 8, 2018, attorney John Steed, on behalf of Friends of Lamoine and the Tweedie Trust, filed an appeal to the Hancock County Superior Court. This appeal challenges both the Appeals Board ruling and the Planning Board’s subsequent granting of the two permits.
  • On June 17, 2019 Judge Michael A. Duddy of the Business and Consumer Docket, issued his decision: “The Planning Board’s decision dated December 11, 2017 denying MacQuinn’s SPRO [Site Plan Review Ordinance] application is affirmed. The Board of Appeals decision dated June 22, 2018 is reversed.”
  • In July of 2019 Harold MacQuinn, Inc. appealed the Court’s decision to the Maine Supreme Court.

In a nutshell, if the Maine Supreme Court lets the lower court’s decision stand, Cousins Hill will still rise over Lamoine Corner. This description of the appeal is from the Maine Supreme Court’s website:

Tune in to the oral arguments on March 3. If you can’t listen live, the audio will be available for another two weeks.

Election Outcome and Other News

Election

Lamoiners showed up in small numbers on Tuesday, 17.75% or 267 voters out of 1,504 registered, to re-elect incumbent Selectmen Bob Christie (203 votes) and Kathleen Rybarz (145 votes) over challenger Glenn Manring (108 votes). Manring’s positive comments about the gravel industry at Candidate’s Night and at the town hearing for the MacQuinn pit expansion may have damaged his chances with many voters. School Board members Bret Jones and Bob Pulver were re-elected without opposition. Jane Fowler received five write-in votes for tax assessor and according to Stu, has decided to accept the position.

Town Meeting

Lamoiners met at 6 pm on Wednesday, March 20 to approve the town warrant. Attendance was moderate to robust, about 60 persons; later arrivals had to find their own chairs. The first order of business was to name the Citizen of the Year. This accolade fell to Bob Pulver, mentioned above as School Board electee.

Nearly all items were passed by the attendees, raising colored cards, without controversy except for item 11, the petition-initiated change to the Building and Land Use Ordinance, eliminating a footnote allowing pre-2014 gravel pit applicants to re-apply under the old rules. Bret Jones opined that this change was directed at one particular applicant (Harold MacQuinn, Inc.) and therefore looked like “spot zoning”. Planning Board chairman John Holt responded that the change affected more than one company (he mentioned Doug Gott and Sons as an example) and therefore was not spot zoning. The votes against were minor enough to not require a count, but appeared to be 15 or so, including Selectmen Nate Mason and Gary McFarland.

New Public Land?

At Town Meeting, Lamoine Administrative Assistant Stu Marckoon “let the cat out of the bag” (his words) about a land gift to Lamoine via the Frenchman Bay Conservancy. The two parcels comprise 41.5 acres around Blunt’s Pond and also border the Goodwin Pit.

The gray area and the parcel to its right are the two lots proposed to become public land. North is that way—>.

Board of Selectmen member Jo Cooper revealed that she has worked on this with the owners. Member Nate Mason expressed concern that the two parcels would no longer contribute to our tax base (at most $1,600/year). Nate thought if the Conservancy retained ownership we could still collect taxes but audience member and former assessor Michael Jordan countered that as a conservation property the tax would be greatly reduced anyway, perhaps by 95%. Audience member and Conservation Commission chair Larissa Thomas stated that its value to Lamoiners as allowing “some uses permitted on the property” more than compensated for the loss of tax revenue. Bob Christie suggested meeting with the Conservancy at the next meeting to further explore pros and cons. Opinions about this issue can be expressed via Selectmen’s emails by following this link. Note that an email to an individual will automatically go to all Selectmen.

FOL still needs your financial help for our legal bills! Please contribute at our gofundme page.

Winter Updates

 

 

Deer on ice, 5 Feb. 2019, Lamoine.

Oral Arguments

At 2PM on Monday, February 4, FOL’s attorney John Steed made his presentation at Hancock County courthouse before judge Michael A. Duddy. Present were also three members of FOL and Lamoine Selectman Kathleen Rybarz. The consensus among the four was that the day went very well for those who wish to save Cousins’ Hill from being hauled away. Judge Duddy asked specific questions about the “do over” and also the first criterion of the Site Plan Review, Preserve and Enhance the Landscape.

In December of 2017, the Lamoine Planning Board rejected MacQuinn’s Site Plan application based on this criterion as well as three others as stated in the ordinance. The Lamoine Appeals Board reversed the Planning Board’s decision by claiming the four criteria did not apply. A decision is expected in a month or two.

Petition

A citizens group initiated a petition to eliminate a loophole in the Site Plan Review which could enable Harold MacQuinn, Inc. to possibly apply for a third time should the court decide in FOL’s favor (see Oral Arguments above). Additionally, old applicants for Site Plan Review permits going back decades could possibly use this loophole to apply again under the old rules.

Petition summary:  

1. To amend the language of the Building and Land Use Ordinance, Amended May 16, 2018, Town of Lamoine Maine, Section 4. Land Use District Requirements, H. Table of Land Uses, Footnote #3 to clarify its meaning.

Action petitioned for:

We the undersigned request the following amendment to the The Building and Land Use Ordinance be put before the voters as a warrant article.

1. Building and Land Use Ordinance, June 10, 2014, Town of Lamoine Maine, Section 4. Land Use District Requirements, H. Table of Land Uses, Footnote #3 to be changed as follows; text bolded that has line through it (a ​strikethough​), to be removed:

3. Land within the Rural and Agricultural Zone that received ​or applied for​ ​a Site Plan Review permit for gravel operations before March 13, 2013, may continue to be eligible for gravel operations upon Planning Board approval of a gravel permit. ​

The team gathered 111 signatures in one week from Lamoine citizens and submitted them on February 4th. The required number of signers is 10% of the turnout for the last gubernatorial election, which was 963 voters. Therefore, the signatures exceeded the requirement by 14. At the February 7 Board of Selectmen meeting it was decided to schedule a hearing for the ordinance change on March 4 at 6:30 PM at Town Hall and the vote will occur at the Town Meeting at the school on March 20, 2019.

Candidates for town offices

There are three candidates running for two open Board of Selectmen positions. The two incumbents are Bob Christie and Kathleen Rybarz and the third candidate is Glenn Manring. Candidate’s night is scheduled for 7 PM on March 14, at the Grange. The election is Tuesday, March 19. Please show up at candidate’s night and bring your questions.

Also on the ballot are two School Board candidates, Bob Pulver and Brett Jones. They are running for two positions and are therefore unopposed. A position for assessor is open with no candidates, but voters will have an opportunity to write in a candidate. Write-ins are allowed for all positions.

Fundraiser for FOL

FOL now has a gofundme site at gofundme.com/save-lamoines-cousins-hill

The legal expenses of the lawsuit to save Cousins’ Hill are proving to be substantial. Please show your support for saving Cousins’ Hill and make a contribution!

 

A saltwater intrusion could be “hydrologic disaster” for Lamoine

by Willem Brutsaert, Ph.D, Lamoine resident. (As published in the Ellsworth American 1/3/2018).

Dear Editor: Thank you for publishing my commentary, “Lamoine’s hydrologic gamble,” in The Ellsworth American of Dec. 20, despite its length.

Because of space constraints, I refrained from technical details, especially when dealing with the negative impacts on groundwater quality by removing the hill, i.e. Cousins’ Hill.

One such detail, apart from the removal of its filtering effect, relates to the fact that this hill, in groundwater hydrology context, is in close proximity to a saltwater body, namely Jordan River, and this makes that part of Lamoine’s sand and gravel aquifer by definition a “coastal aquifer” vulnerable to “seawater intrusion.”

Seawater intrusion is a natural phenomenon whereby saltwater occurs as a “wedge” below freshwater in coastal aquifers.

Freshwater being lighter than saltwater will “float” like a bubble on top of saltwater near the shore, according to the hydraulic principle of buoyancy (remember Archimedes’ “Eureka”). Infiltration from precipitation will keep the saltwater at bay. During extended periods of drought, the groundwater table will drop and this will cause the saltwater wedge to move (intrude) farther inland. This wedge will be “flushed” back again when the groundwater table rises during the wet season.

Due to this moving back and forth of the wedge, a mixing zone will exist between fresh- and saltwater. And here comes the big “however.” If we now remove the whole hill, permanently lowering the regional groundwater table, as explained in my commentary, the saltwater wedge will now permanently intrude farther inland below the freshwater. Add to that the fact that, due to global warming, seawater level will rise, and we may have a real hydrologic disaster on our hands: Salt water occurrence at much shallower depth and farther inland than is now the case.

No need to say that many household wells in the area will be affected. Based on the elevation of the water table with respect to mean sea level, and the density difference between freshwater and saltwater, one can calculate the approximate depth to saltwater before drilling a well, but that is a story for some other time.

Again, should Lamoine really gamble with its groundwater resources by removing the hill?

Willem Brutsaert Lamoine