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.

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