Residents question purpose for immediate ordinance changesAttorney: Alterations could apply to tank application if approved
Searsport — What's the rush?
That was the question several residents posed during a 90-minute public hearing regarding proposed changes to the ordinance governing the process of appealing Planning Board decisions that took place Wednesday night, Jan. 30, at Union Hall.
Members of the Searsport Zoning Board of Appeals and the attorney for that board, Paul Gibbons, accompanied members of the Searsport Planning Board, as well as Town Manager James Gillway, all of whom answered questions from the audience about the proposed changes.
Resident Marietta Ramsdell was one of those who wanted to know why the case to clarify the ordinance was being made now and suggested the town take more time to draft the changes.
"What's the hurry?" she said.
Others who addressed the boards, like Tom Gocze, expressed concern that the proposed changes appear to disallow the presentation of new information during the appeals process. According to information posted in the public notice for Wednesday's hearing that appeared in the Jan. 24 edition of The Republican Journal, the proposed changes specify that all appeals shall be considered on an appellate basis, rather than starting from scratch, meaning the Appeals Board would consider information provided in the existing record from the original body that made the initial decision.
Gocze said "99 percent" of the permit applications the Planning Board issues are for minor developments like garage and home construction and are not as involved as the application from Colorado-based DCP Midstream for a liquefied petroleum gas (LPG) storage tank. That said, Gocze stated that he would prefer to see language that allows for new information to be presented during the appeals process.
Gocze also echoed Ramsdell's comments about taking more time to review the ordinance itself, noting that the Searsport Board of Selectmen had collectively said they would not support anything in the draft ordinance language allowing the changes to be retroactive.
"If the selectmen are not going to let it be retroactive, there's no rush to judgment here," said Gocze.
Concerns about the appeals process arose in mid-January during the ongoing review of DCP Midstream's proposal to build a 22.7-million-gallon LPG storage tank at Mack Point, just as the second round of public hearings on the application got under way. That's when Searsport Planning Board Chairman Bruce Probert was notified of a request from Gibbons on behalf of the Zoning Board of Appeals seeking clarification of the procedure to be followed when appealing a Planning Board decision.
In response to comments from Gocze and others who expressed concern about the ability to present new information during an appeal, Gibbons said the draft changes could include language specifying that the presentation of new evidence would be permissible.
The Jan. 24 public notice also stated that the proposed changes include a provision stating that the Board may elect to hold a consolidated hearing if more than one party files an appeal on the same decision, even if the arguments detailed in each of the appeals involve different facets of the same issue.
The notice also stated that the ordinance changes, if approved, would apply retroactively to any appeal of an order or decision on applications that were the subject of review as of Jan. 15, a point that resident Anne Crimaudo questioned further when she addressed the boards.
"Since the Board of Selectmen made it abundantly clear they would not support a retroactive change to the ordinance, I'm wondering why you're still supporting that," she said.
Crimaudo referred to comments from Aaron Fethke, chairman of the Board of Selectmen, who, over the last week, commented on that topic in local newspapers — including on The Republican Journal website.
"This won't be retroactive and will have no effect on any current applications," stated Fethke on The Republican Journal website Jan. 30. "It will only affect any applications we get in the future and this only clarifies what the intent of our Board of Appeals ordinance has always been."
Probert said the Planning Board put out the public notice, which included the portion regarding retroactivity, because the Board wanted to make sure the proposed changes were in line with what Gibbons requested in his letter to the Planning Board.
"All we're doing is following their request, verbatim," said Probert.
Probert said ultimately the decision about how the article in the March 9 town meeting warrant seeking the changes will appear in the town report is up to selectmen.
The purpose of Wednesday's hearing, said Probert, was to gather public comment about the proposed changes and nothing more.
"The selectmen have the final say," said Probert.
Town Manager James Gillway noted that selectmen discussed the proposed ordinance changes at the Jan. 14 meeting, at which time the topic of retroactivity first arose. But Gillway said the Planning Board had to complete the public notice prior to that selectmen's meeting and get it published in local newspapers in enough time to alert residents to Wednesday's public hearing.
"We've had no communication with the Board of Selectmen, either," said Probert.
Gibbons explained throughout the hearing that the problem with the current ordinance is "ambiguity." The way the ordinance is currently written, Gibbons said, any decision from the Appeals Board can easily be challenged in court. For example, the Appeals Board now has the option of reviewing an appeal on a de novo basis, meaning the process starts all over again, with the Appeals Board gathering new data, testimony and information that is independent of anything the Planning Board did prior to making its decision to grant an application. In that case, Gibbons likened any hearing the Planning Board may have had on an application in question to a "dress rehearsal."
Gibbons also stated that whether the proposed changes contained language that includes the word "retroactive" or not, the ordinance might still apply to the pending DCP application, because the ordinance would not apply until someone moved for an appeal.
"That would apply even if you took the word 'retroactive' out," said Gibbons.