Town of Mount Desert Planning Board
Planning Board Meeting Minutes
Meeting Room, Town Hall
6:00 pm, September 16, 2014
Public Present
Robert V. Collier, Elizabeth S. Roberts, Paul MacQuinn, Ed Bearor, Daniel Pileggi, Janet Clifford, Robert Clifford, Dick Broom, Erma Smallidge, Peter Aylen, Judy Aylen, Gerald Shencavitz, Stephen Salsbury, Jeff Gammelin, Katrina Carter, Benjamin C. Moore, Jan Coates, Charlotte Singleton, Jean B. Gilpin, W. Keith Bowie
Board Members Present
David Ashmore, Bill Hanley, Dennis Kiley, Lili Andrews, Meredith Randolph
Also present were CEO Kimberly Keene, Attorney for the Planning Board James Collier, and Recording Secretary Heidi Smallidge.
The meeting was called to order at 6:05 p.m. by Vice Chairperson Lili Andrews. It was noted that Ms. Andrews would be acting Chairperson at this meeting. Bill Hanley would serve as Secretary Pro Tem. Meredith Randolph has reviewed previous meeting Minutes and recordings and will be an acting, voting member at this meeting.
- Quarrying License Application
Completeness Review
- Quarrying License Permit # 001-2014
OWNER(S): Harold MacQuinn, Inc.
OPERATOR(S): Fresh Water Stone & Brickwork, Inc.
AGENT(S): Steven Salsbury, Herrick & Salsbury, Inc.
LEGAL REPRESENTATION: Edmond J. Bearor,
Rudman Winchell Counselors at Law
LOCATION: Off Crane Road, Hall Quarry
TAX MAP: 007 LOT(S): 075 ZONE(S): Residential 2
PURPOSE: To review completeness of quarrying license application
Chairman Brawley had been recused at an earlier meeting. It was noted this was a continuation of a prior meeting therefore no public notice was necessary. There was no conflict of interest found.
The question before the Board was whether the applicant has standing. At the last meeting a definition of quarrying activities had been decided upon, and included cutting and carrying of stone from the site.
Planning Board members received a binder from the applicant showing details of the quarry’s operation. Attorney Ed Bearor, representing the applicants, presented to the Board his written argument. The quarry in question is, in Attorney Bearor’s opinion an active, unlicensed quarry needing a license. In referring to the LUZO, Section 6B.12, it notes “Quarrying Activities are regulated by the Town of Mount Desert Quarrying License Ordinance.”
Attorney Bearor reviewed a detailed history of the quarry activity in Hall Quarry, as well as a summary of the previous meeting discussing this issue. Attorney Bearor felt there was no doubt the quarry in question was existing prior to the quarrying ordinance.
It was noted that evidence of quarry activity was submitted to the board showing what the applicant felt should be acceptable evidence of quarrying activity in the area. Attorney Bearor noted that in attendance at the meeting were several people that could attest to their use of the quarry. Attorney Bearor believes the applicant has the right to move forward. He noted from the Minutes of July 22, 2014, “Attorney Pileggi asserted that the applicant has to show one of two things: they have to show they were permitted under the 2009 or 2010 ordinance, or they have to show they were a lawful non-conforming use.” Attorney Bearor felt both these things have been shown.
Ms. Randolph inquired whether there was a difference in the terms “mineral extraction” and “quarrying”. Attorney Bearor asserted the Board voted that mineral extraction is quarrying in 2012. Ms. Randolph noted that the definition refers to cutting the stone from the ground and removing it from the site. She asked whether both activities must happen concurrently. The word “and” suggested it does in her opinion. Attorney Collier noted the definition referred to both activities, but they did not have to occur together. Mr. Hanley agreed that the Board adopted the broader definition. Mr. Hanley stated that the question raised is do both cutting and carrying need to occur within 18 months of each other. Mr. Kiley read from the July 22, 2014 Minutes: “A review of
the official dictionary was made. CEO Keene read a number of definitions of the word “quarry”, the most pertinent to the meeting being, “an open excavation for obtaining building stone, slate or limestone, a rich source.” The pertinent definitions of “Quarrying” were “to dig or take from as if from a quarry. To take a quarry or to delve in as if in a quarry”, “The business, occupation, or act of extracting useful material as building stone from quarries.” The question of the words “take from” as part of the definition and what exactly they mean was discussed at length.”
Attorney Pileggi addressed the term “and” and noted there are many court cases showing the word “and” is conjunctive. Both must happen to make the action occur. It is his opinion that the word “and” means both activities. Attorney Bearor noted that the term is defined in the Ordinance, therefore, an opinion from a dictionary is unnecessary. A lengthy discussion of the definition of quarrying was held.
Vice Chairperson Andrews noted that in the previous meeting, the Board had been persuaded that a quarrying operation involves cutting and maybe waiting five years before you have to cut again. Mr. Hanley agreed, noting there were layers to the process of the operation of quarrying, there may be cutting in a time period and carrying in a time period. He noted the paperwork submitted by MacQuinn’s pointed to that fact.
Paul MacQuinn and Jeff Gammelin of Freshwater Stone discussed their activities in past years in the quarry. Mr. Gammelin noted that Freshwater Stone had cut a lot of stone from the quarry. Other business owners who have used the quarries were present and it was noted they had provided letters to the Board describing the work.
Attorney Pileggi, representing the Shencavitz’s and the Aylen’s provided some history of the licensing process. He noted that the original application was appealed and the Board of Appeals only found that his clients did not have standing to force the CEO to do what his clients felt should be done. No decision was made regarding whether the quarry was a lawful use at that time. The case was dismissed in court without it being determined whether it was lawful or conforming. When the LUZO was adopted in 1978, quarries were not listed as a permitted use. Attorney Pileggi noted that the 2009 amendment to the LUZO was improperly enacted because the Town failed to get the DEP approval. It became a valid ordinance in 2010. A short time after, it was amended to say that quarrying was
allowed with a mineral extraction permit. A reclamation plan was required and a permit was necessary in order to extract minerals. Attorney Pileggi stated the ordinance noted that if a use had been discontinued for twelve months it was no longer viable. He read the definitions of “discontinue” from the dictionary. He noted that if the Board can find a 12- or 18-month period of time in the materials submitted where no activity occurred, then the quarrying activity was effectively “discontinued”. Attorney Pileggi noted that in 1999/2000 and 2005, 2006, and 2007 records indicate there was no on-site activity occurring. Nothing cut, extracted, or taken from the site. This time period meets the definition of a discontinued use. He referred to aerial photos showing the encroachment of trees to prove the lack of use.
Attorney Bearor noted that the ordinance refers all quarry determination to the quarry ordinance. The quarry existed in 2013 when the quarry ordinance was enacted, and activities prior to that became grandfathered. The ordinance changed in 2009, and it is clear that it was a permitted use at that time, and the quarry was in operation in 2009. In 2010 the ordinance was amended, and the quarry was still a permitted use. Ordinances are not meant to apply retroactively so what came before 2009 is not of concern in Attorney Bearor’s opinion. The language used in the ordinance is “existing, unlicensed”, not “non-conforming”. The years where no activity is shown, materials were sold at other locations but obtained from Hall Quarry. It was also noted in the 2013 quarry ordinance
that existing mineral extraction activities would become grandfathered uses.
Mr. Kiley inquired of Attorney Collier whether the Board had the legal responsibility to determine regular use of the quarry dating back to 1978. Attorney Collier stated the Board would have to determine that for themselves. He asked Mr. Pileggi where he had gotten the opinion that it had to be a lawfully existing quarry. He asked about Mr. Pileggi’s opinion regarding Mr. Bearor’s argument that it was an allowed use without a permit for a period of time.
Attorney Pileggi noted that the 2009 amendment to the ordinance was not enacted due to the lack of a DEP approval. Also, he noted that at the time it was enacted a permit was required. The ordinance required a permit in 2010 and MacQuinn never applied for it. Therefore, it was not a legally existing quarry.
Mr. Kiley referred to the previous meeting’s Minutes which noted the Board was tasked with reviewing the submittals. He read: “Vice Chairperson Andrews felt that the Board needed to determine whether the quarry lawfully exists in order to apply for the permit. Attorney Collier reiterated that the applicant has to determine whether they are lawfully conforming by having a permit, which they do not, or by being grandfathered. Mr. Hanley and Mr. Kiley agreed it would have to be grandfathered. Attorney Collier noted that if it has to be grandfathered, then the Board has to determine there were no periods of time in which they were considered inactive.” Attorney Collier noted that if the Board decides that they have to be lawful and permitted, which they’re not, or they have to be a
lawfully pre-existing non-conformity, or grandfathered, it would be either the 2009 or 2010 or 1978 coming forward to determine whether during those periods of time, they would be considered inactive. And the Board would have to determine the meaning of the term “quarrying” during that time. Further discussion of this subject ensued. Mr. Kiley determined the first step was whether to agree it had to be grandfathered. Attorney Collier agreed with Mr. Kiley’s determination. It was agreed that an individual, previously unknown to the Town, could not present paperwork supporting the fact that they had been quarrying and be considered a lawfully existing quarry. They would have to show they were grandfathered. Therefore a quarry would have to be permitted or be grandfathered. And in that case, the applicant would have to start from 1978 and come forward with regard to proof of operation.
Attorney Bearor noted that the previous ordinance did not require a permit for a quarry, unless the quarry had a building for which a permit was required. CEO Keene reviewed the 2009 ordinance. In Section 3.4 Mineral Extraction under R2 is listed as a permitted use. It notes that a building permit is required for the structures. The definition for “Mineral Extraction” in the 2009 ordinance is: “any operation within a 12 month period which removes more than 100 cubic yards of soil, topsoil, loam, clay, rock, peat, or other like materials from its natural location and to transport the product or move it away from the extraction site excluding gravel pits…” There are no buildings at this quarry, therefore, no permit was applied for. In 2012 the ordinance was revised to
include the requirement of a reclamation plan. A permit was not necessary at that time, but a reclamation plan was. Mr. Bearor reminded the Board that in 2009 they were operating. When they brought their reclamation plan to the Planning Board, the Board requested an entire application, which the applicant said was not necessary. They appealed, and the Board of Appeals overturned the Planning Board’s request.
A 5-minute recess was called.
Attorney Collier inquired of CEO Keene whether she could find reference to the reclamation plan in the 2009 ordinance. CEO Keene read that “Mineral Extraction may be permitted under the following conditions: a reclamation plan shall be filed with and approved by the Planning Board before a permit is granted.” However, the permit referred to was a building permit and was not required for this quarry.
Attorney Collier noted that at the time a complaint was raised, the applicant did try to follow the rules as explained to them. They did submit a reclamation plan when it was requested. Ms. Randolph felt that this discussion established that they were illegally operating in 2009 without the reclamation plan. Mr. Ashmore noted there is a conflict in the ordinance. The reclamation plan is required for the building application, which was not required for this quarry. It was noted that the Board of Appeals required a reclamation plan with no additional information. The motions for the Board of Appeals meeting dated October 17, 2012 were as stated: “The Planning Board’s decision requiring the applicant to provide information for 6A.1-6A.10 was clearly contrary to 6B.12-4, in that
6B.12-4 pertains only to the reclamation plan, which is all that is before the Planning Board and the decision of the Planning Board is reversed.” A further motion read, “upon remand, the Planning Board shall consider 6B.12-4 only as it applies to the reclamation plan.”
Mr. Hanley wondered how the applicant should have known there were additional requirements in the LUZO, given that the use looked to be permitted without restrictions listed. Vice Chairperson Andrews noted it was footnoted to require a building permit. Attorney Collier summarized that the neighbors were complaining about the work being done and the noise it generated. CEO Keene stopped the operation in an effort to ascertain an answer as to whether the work was allowable. The requirement of a reclamation plan was found to be necessary. Attorney Collier felt the reclamation plan provided was very scant. It was Attorney Collier’s memory that the Board requested more information, the applicant was unwilling to provide it, and the Board of Appeals agreed that the LUZO did not require more
information.
Attorney Pileggi felt that anyone reading the ordinance would find it clear that a reclamation plan was required. He added the neighbors didn’t get involved until 2011. There was no reclamation plan at that time. After some discussion, it was agreed to reject Mr. Bearor’s argument that they were a lawfully operating quarry in 2009. Proof of operation without periods of discontinued use would be required from 1978.
Vice Chairperson Andrews expressed her opinion that the applicant has provided proof of their activities. Mr. Kiley noted there wasn’t always proof on the receipts provided that the rock was specifically related to Hall Quarry. Mr. MacQuinn explained his quarry operation. It was noted that activity in Hall Quarry may not necessarily look as though it happened at Hall Quarry, due to MacQuinn’s weighing and billing process. Attorney Collier stated the Board would have to make a decision based on the evidence, and an abundance of evidence had been provided. He noted that in order for the quarry to not be considered grandfathered, operations there would have had to stop for a period of 18 months. Mr. Kiley asked whether the Planning Board’s role was to make the applicant absolutely
prove the use, or give them the benefit of the doubt in the face of the evidence given. Mr. Hanley expressed his opinion that the Board should look at the big picture and that a massive volume of record-keeping had been provided as well as the applicant’s testament that it has been operating. Ms. Andrews noted that there may not have been a lot of activity at times when there was no demand in the market for the stone but in her opinion that was not a discontinuance of the business. Attorney Collier asked whether a motion should be made.
Mr. Hanley moved that the Board concluded, based on the evidence submitted, that the applicant was a lawful, non-conforming pre-existing use. Therefore as a lawful non-conforming, pre-existing use they are eligible to apply under Section 6.1 of the quarrying ordinance as an existing quarrying activity. Mr. Ashmore seconded the motion. Motion approved 3-0-2 (Kiley and Randolph in abstention).
Discussion of the next meeting ensued. Attorney Pileggi noted he had a list of 6-7 items missing from the information and would provide the list to Mr. Salsbury. It was agreed to set a date in the future and publicize it for the public.
Mr. Hanley moved, with Mr. kiley seconding, to adjourn the meeting. Motion approved 5-0. Meeting was adjourned at 9:19 pm.
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