Lamoine Appeals Board Decision: Dig that Pit!

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.”

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.”

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

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.