Brunswick Zoning Board of Appeals Meeting Minutes May 26, 2016

Transcription

1 Approved 8/4/2017 Brunswick Zoning Board of Appeals Meeting Minutes May 26, 2016 Members Present: Chair John Poutree, Vice Chair Nicholas Livesay, Jessica Braun, Steven Garrett, and Robert Thompson Staff Present: Jeffrey Hutchinson, Codes Enforcement Officer; Town Attorney, Stephen Langsdorf A meeting of the Brunswick Zoning Board of Appeals was held on Thursday, May 26, 2016 at Town Hall, in the Meeting Room, Room 206, 2 nd Floor. Chairman John Poutree called the meeting to order at 7:30 P.M. Case #2332 Scott Bodwell, Richard Knox & Henry Heyburn: The Zoning Board of Appeals will hold a hearing to determine if the appellants, Scott Bodwell, 55 Ocean Drive, Richard Knox, 81 Simpsons Point Road, & Henry Heyburn, 215 Pennellville Road, have legal standing to pursue an Administrative Appeal of the Code Enforcement Officer s decision to issue a Minor Floodplain permit to Robert and Nancy King on property they own at 0 Tidal Run Lane (Tax Map 31, Lot 29). If the Board determines the appellants have standing, a hearing on the merits of the Appeal will be scheduled at a later date. John Poutree introduced the application and reminded the appellants that this meeting is limited to the determination on whether or not they have standing for an appeal. Town Attorney, Stephen Langsdorf reiterated that this meeting is to be limited to whether or not the appellants have standing to pursue the significant threshold issue in front of the Zoning Board of Appeals (ZBA). Steven said if the Board decides that the appellants do not have merit then this will save everyone from going through a long and length appeal. With respect to standing, parties will argue their differences and make a presentation. Steven clarified the meaning of standing by stating that standing means that someone must have a particular rise to injury that is different form the general public; general public cannot appeal unless they have a specific connection to the project or matter at hand. If the Board concludes that the applicants have demonstrated that they have particular rise to injury because of some reason which sets them apart from the general public and it is determined that they do have injury and in some way this project does have an impact on them which is different from the general public, then the applicants will have standing to continue on with an appeal. If the Board concludes that the applicants are in the same situation as any other member of the public then they do not have standing and cannot move forward with an appeal. 1

2 John Poutree again emphasized that the Board will only be hearing information regarding the issue of standing. The appellants Richard Knox of 81 Simpsons Road, Scott Bodwell, 55 Ocean Drive and Henry Heyburn, 215 Pennellville Road, introduced themselves. Richard Knox presented a PowerPoint presentation which reviewed a summary of points, property / project site, project underway, why the applicants are appealing, state law mandating shoreland zoning, purpose of Brunswick Zoning Ordinance, and Do we have standing to appeal where Richard reviewed proximate location, what constitutes injury, and particularized injury. In continuation of the presentation, Henry Heyburn reviewed his uses of the bay and said that he walks by the area several times during the week and was taken aback when he saw the bulldozers. Henry said that this seems more then worth pursuing and would like to abide by his work place mission to inspire formative growth, teach people appreciation of the environment and help people live sustainable lives. Scott Bodwell said that he is a resident of the neighborhood and said that he paddleboards, plays ice hockey and lobsters in the area as often as possible. Scott said he is out on the water regularly fishing, kayaking and swimming and recently took a fresh look at the project. Scott said he is out on the water all year round almost every other day and this keeps him healthy. When he looks at the tree canopy that has been removed, he does not understand the justification for it. Scott said that he is an engineer who typically does a lot of permitting and was asked what he thought about the review process; when he looked at this project, he noticed that there wasn t any professional engineering involved and was asked to do what he could if he thought something was at risk. Scott said that they realized that there were issues with the design and this is when the appeal was factored into his personal position with the project. Scott said that there is little boat traffic in this area and whenever he talks to people about this project and removal of trees, people cannot believe what has been done. Scott said that he is concerned about the tidal areas and rip rap. Richard reviewed pictures in the PowerPoint presentation taken of him and his family in the project area and of Crowe Island where he is a steward and reiterated how upset he is about this project. Richard reviewed case law on standing (as included in the meeting materials), general public and uses of Mere point and Middle Bay, and the users. Lee Silverman, resident of 292 Pennellville Road, said that he can testify that both Richard Knox and Scott Bodwell use Middle Bay regularly. Lee said that in the 15 years that he has been a resident, he believes that he, Scott and Richard are the biggest users of Middle Bay. Lee reiterated that Richard serves as a steward on Crowe Island and said that he volunteers as assistant steward. Lee said that the damage has been done, according to the rules, but to his understanding the Town is not compliant with State and Federal Zoning requirements. As an economic student at Bowdoin College, Lee said he learned about the tragedy of the commons which explains why common assets are often spoiled or ruined because individuals have incentive to maximize their interest which might not dove tail with what is best for the common good. The view of the bay is something everyone should own and strive to protect. Lee believes that the Town should grant Richard, Scott and Henry standing so that they may appeal this project, that the Town should work with Harpswell to come up with common water 2

3 development and that the Town should encourage the King Family to build their houses with settings that are less intrusive to those trying to enjoy the bay. John Lloyd of Eaton Peabody, and representing Nancy and Robert King, said that the irony is that the Kings mission is all about family and tonight they cannot be present as their son graduates from the Naval Academy and gets married in the next few days. John said that this family has been using Miller Point for recreation, has hiked the Grand Canyon, contributes to environmental causes, and at the very beginning began discussions with the Town to make sure that natural resources of Mere point Bay and the cove were not harmed while protecting the land so that it could be useable by their children when they are old enough to build houses. John Cunningham of Eaton Peabody, referred to Mr. Knox s presentation when he spoke about the appellants having the appropriate proximity and that it would be up to the Board to decide if their location was close enough; with all respect, this is not really what the Board is called upon to decide. The law says that you have to have particularized injury and allows for some leeway with abutters; with an abutter, you hardly have to demonstrate anything more. John said that in this case, the appellants are not abutters. John referenced the case Harrington vs. the Town of Kennebunk (as included in packet materials) and said that in this case, although the appellant was an abutter, they failed to demonstrate particular injury and did not have standing. John said it is also true that people within the neighborhood may have particular injury and that proximity within that neighborhood helps to show the particular injury. What you can t do is appeal on behalf of or as stewards for the public. The appellants have to suffer injury different from the general public. In terms of closeness, John said that the ordinance does not provide a lot of guidance, but pointed out that the notification regarding projects is sent to those within 200 feet of the proposed project. John showed that the map provided to the Board is not accurate and reviewed a Tax Map which illustrates that the project is farther away from the appellants. John emphasized that the appellants are not abutters and therefore must show particular injury. John reviewed the Nergard, Single and Fitzgerald Cases and said that the appellants feel that this project is somehow going to affect their enjoyment of the bay and the enjoyment of anybody else in the bay. John pointed out that the public landing is closer to the King s property, closer to the site, and closer to those who use the landing that are more likely to see this project. John said that the appellants are trying to base their case as stewards of the area and the effects of the natural and aesthetic value. John asked what kind of rule would allow for someone to appeal based on the fact that they don t like the look of a project and how is this different from someone obtaining a building permit and painting their house a color that another does not like. Nick Livesay asked if it matters that a Building permit doesn t consider the color, but that in this case the appellants are alleging that permits were not gotten that deal with environmental and aesthetics. John changed his hypothetical question to you got a building permit to build a house, I hate the fact that you got a permit to build a house where there used to be trees on the lot. You cut down the trees to build a house because you got a permit to do so and it was within the rules, but I don t like it. It offends my aesthetic sense, it interferes with nature, it shouldn t have been allowed and I hereby appeal you. John said that not everybody can challenge the decision of the Codes Enforcement Officer and this is what standing is about; people who have injury to decisions, have standing to appeal the Codes Enforcement Officers decision. John said 3

4 that the effect of this project on the natural boundaries and aesthetics cannot be determined until the project is completed and that there can t be an argument while construction is ongoing and that the appellants will have to appeal based on what the site will look like when it is done. John passed out a photo simulation provided by Landscaper Sarah Whitey that what the area will look like when the project is complete. John asked in what way the completed projected look of the project injures the appellants or anyone else. John pointed out that there would now be rocks on the shoreline where there were none before. Again, John said that the legal test is, how does this injure the appellants, does it reduce their property value. John does not see how this will reduce property value. Referring to pages 3 & 4 of the pictures provided, John said that this location (27 Tidal Run Lane) had a similar project and put in rip rap and is closer to the King s site. In referring to pages 5 & 6, John said that this is a site on Bailey Island in Harpswell that also had a significant rip rap project done and pointed out that the white rocks on the bank were placed on purpose to match the natural ones on the shore. John said that a rip rap project can be compatible with the surrounding neighborhood and doesn t give rise to injury; it does not allow for standing to the appellants. John concluded by saying that rules are there for a good reason and there has to be an injury other than the feeling that the bay will be less attractive for frequent users of the area. Nick asked if it was possible for someone to suffer a particularized injury to their personal rights based on aesthetic or wellbeing. John replied that the Nergard Case is clearer on this issue. John supposes that someone could have particularized injury based on aesthetics concern, but it would have to be something to the effect of tearing down a natural beauty that was recognized in the community and should be protected. Even then, the appellant would have to show why they are separate from the general public and why their aesthetic concern outweighs anyone else. John said that issue is have the appellants been harmed in another way that the general public could not have been. Frank Strausberger, resident of 27 Tidal Run Lane, said that he is in a cove and cannot see the King property. Frank said that this issue of standing is unnecessary and upsetting. Frank said that there was a meeting that Mr. King voluntarily attended and Mr. King left the meeting believing that people were satisfied. Unfortunately this was not the case and an attorney was hired by those who were concerned. Frank said that in terms of standing, the 3 appellants have talked about the neighborhood and pointed out that the Heyburns live at least 1.5 miles away from the project and the Knox s live more than that. Frank said that the documentation talks about the Bodwells being connected by water to the property, but so does Queen Elizabeth; the whole issue of where they live seems to be irrelevant to the case. The standing comes down to the use of the bay and the appellants concern that the King s project doesn t look the way that they think it should. Frank said that 17 years ago the King s bought this property and turned 141 acres over to the Town when they could have built roughly 12 houses and chose not to. Had the Kings done this, the area would be a whole lot uglier than the proposal. Frank has trouble seeing the appellant s injury and said that it is not just a matter of what constitutes standing of someone who rights are abused, but you have to demonstrate injury and he is not sure that there is injury here. Frank questioned whether the Zoning Board of Appeals has standing to overthrow a ruling that the Town Council has already made. 4

5 Henry Heyburn replied that they are asking the Town to do its job and to abide by the law. Richard Knox added that the injury does not have to do with aesthetics and that the reason why the Kings were able to move forward with this project is because the Town did not do what it is supposed to do. Richard said that the meeting with the Kings took place in his house and it is impossible to conceive that Mr. King left believing that things went well. Richard said that the issue is about following the law and doing what is best for the Town; he wants to precipitate change. Richard asked why so much money has gone into negotiating when the Town has a Planning Board whose purpose is to review projects like this. Richard is afraid that similar mistakes will occur again. In response to the Town reasonability s as Mr. Cunningham stated, Scott Bodwell asked what happens when the Town doesn t keep an eye on their reasonability and who steps in. Scott said that the simulations are not accurate and that the clear cut was 60 feet back from the embankment. It was pointed out by that the Kings have a permit to clear cut to allow for a 1.5 slope to allow for construction. The revegetation plan, which has been approved by the Town and will be presented to DEP, includes the existing tree line plus revegetation. Richard Knox replied that the permit was only for a 1 to 1 slope and that he called the DEP and they said that the 1.5 should not have been done and was jumping the gun. John Cunningham said that he spoke so much about aesthetics because in the application, the appellants speak about aesthetic impact. John said that the main questions that were just asked are we just want the Town to do its job, that s all we want. If we don t hold the Town to doing its job, it will happen again. What happens when the Town doesn t do its job, that s why we re doing this. John said that there are 2 types of remedies when you don t like what is going on in the community having to do with zoning regulations and if you are complaining about the Town not doing its job then you are complaining about something that effects everybody in Town; the remedy is political, not judicial. John said that if you are suffering a particularized injury, then you can bring an appeal, but if what you are trying to do is hold the Town to the straight and narrow to make sure that they follow the rules, then you do not have the right to an appeal. Henry Heyburn said that he would like to see change, but that by moving forward with the project does create a precedence and does create a personalized injury. Henry said that he misspoke when he said that this is not about aesthetics, and that the injury is the project itself. Henry disagrees with this project, the way it was done, and what has come about. The injury is that if you just say this project fine, then the issue is simply not dealing with the issues and are not dealing with what some people see in the bay on a daily. Jim Brokaw, of 222 Pennellville Road, said that he sees the appellants as his friends and hopes to see the King s as his friends as well. He looks forward to a speedy conclusion. John Cunningham pointed out that Mr. Heyburn clearly feels that he will suffer injury, but nothing he said demonstrates why he would suffer a particularized injury that is different from the public. This is not the way to resolve the issue. Mr. Heyburn replied that by allowing this project to move forward, it sets a precedent and that this in turn can damage him and probably 5

6 others, but it personally damages his ability to enjoy the resource. Richard Knox pointed out that Judge Alexander, in the Nergard Case, questioned itself and that the users of Baxter Park were found to have standing because they were users and were different form anyone else in the State. Chair John Poutree closed the public comment period. Jeff Hutchinson, Codes Enforcement Officer, said that the Board heard a similar appeal in 2006 regarding the Mere Point Boat Launch. This was an appeal to the Planning Boards decision. It was determined, before the actual appeal was heard that the appellant, who lived a fair distance from the boat launch and felt that this would increase the amount of traffic, was found by the ZBA to not have standing because he was not a direct abutter to the boat launch. John Poutree said that he has been a member of the Board for 30 years and standing has always been abutters, owner, someone who had a vested interest or a representative for those who had written consent to speak. Nick Livesay said that this is difficult for all those involved and agreed that use of a resource counts, but that there needs to be a particularized injury. Nick said that what was most informative is whether or not they should be thinking about the project half way through or upon completion and he feels that ultimately, they have to hypothesize the combined impact on the people who use and value the resource. Nick said that there have been valid concerns presented, but that these are not concerns that are or should be handed by the ZBA. Robert Thompson said that as the country grows, things are going to change. Robert has looked at this project, and said that he would be concerned with pollution, but there is none. There has been no monetary damage to the appellants, and although the aesthetics of the bay may change a little, the uses of the bay are not changing. Robert said that his sense of beauty is not the same as everyone else and it seems as though the only rights being violated are the rights of the Kings and their right to develop their property the way they want to. Robert said he feels as though the appellants main case is aesthetics, but this is their property and does not perceive personal injury to the appellants. Steve Garrett praised the abutters and appellants for their stewardship to the islands and the bay. Steve said that the cases that were cited were insightful and education and appreciates that principal in what the appellants are trying to do, but it is the Zoning Board who has to follow what the laws and codes say. Steve said that he really would like to support the personal injury, but does not think the facts support this. Jessica Braun said that she also appreciates the passion involved, but sees a difference in the cases that were cited and does not see the particular injury that she needs to see. MOTION BY NICK LEVASAY TO DISAPPROVE THE APPELLANT S MOTION FOR STANDING. MOTION SECONDED BY JESSICA BRAUN, MOVED UNANIMOUSLY. 2. Other Business 3. Adjourn This meeting was adjourned at 9:28 P.M. 6

7 Respectfully Submitted, Tonya Jenusaitis, Recording Secretary 7