At the suggestion of the Maine Municipal Association, the Montville Planning Board will petition the Board of Selectmen for funds to hire an attorney to represent the town in the ongoing dispute between neighbors concerning an 800-yard shooting lane.

A Dec. 12 Planning Board meeting was a continuation of the pre-application hearing for Arne Smith, the resident who cleared land on his property and has been actively using it as a shooting range to the displeasure of some of his neighbors.

Approximately 25 residents and board members crammed into a meeting room at the Town Office  Wednesday night to discuss the Site Plan Review Ordinance, specific language within the document, and the need for legal counsel.

Chairman Peter Kassen opened the meeting by saying the board had consulted with MMA because of the complexity of this situation and decided "it would be a good idea" to get legal advice on some of the issues surrounding the application.

Vice Chairman Bob Delio said that after going to the site visit, and taking into consideration his 20 years on the Planning Board, "I don't see how this even qualifies to come before the board as an issue. … It's not a commercial operation.

"It may be a safety issue, but that is something between the two neighbors that they have to resolve," he said.

Delio went on to say that Montville Code Enforcement Officer Bob Temple may have "jumped the gun on this."

One board member said that when CEO Temple initially came to the board, "we all knew it was not commercial. Why did you change your mind?"

Delio responded, "Because I did a site visit and saw it."

Board member Andrew Marshall said that, as he understood it, the Planning Board has oversight over the CEO and can make a determination that the board does not have jurisdiction in this case, effectively pulling out of the hearing and leaving it for the neighbors to resolve.

One board member replied, "To me it's clear what the intent of the town was when the ordinance was passed at the town meeting." She then read part of an article within the ordinance, "to balance the rights of landowners to use their land while minimizing adverse impacts on adjacent properties."

Discussion followed about the ordinance language, whether it was intended for commercial practices, and the "fuzziness" surrounding some articles.

At the crux of the discussion, Article 3, Section 2, states approval by the Planning Board is required for "new nonresidential use."

"What the hell does that mean?" board member Marshall asked.

"Though not explicit," Marshall said, "I believe this ordinance was written to apply to commercial developments."

He went on to say that after researching other towns with similar boilerplate ordinances where examples were given for new nonresidential use, "they are all commercial."

Cemeteries, gravel pits and golf courses were examples of "new non-residential" development, he said.

One of the action items from the November Planning Board meeting was for Temple to find a qualified sound engineer to conduct a decibel test at the property boundary and present the proposal to Smith and his attorney. As written in the ordinance, the applicant would pay for any fees involved.

Because of an oversight, Kassen said, Smith and his attorney did not have an opportunity to talk about the sound engineer proposal and were "seeing it for the first time tonight."

"They are not in a position to make a decision about the engineer's proposal," Kassen said.

Board member Kathy Roberts said that while she appreciated the opportunity to see during the site visit what actually was going on, having another professional insight would be helpful, referring to legal counsel.

Kassen said, "Another responsibility we have is to the town. The town needs to protect itself because if we pass on this … it increases the likelihood of legal action. If an abutter decides to take legal action, they might feel it necessary to take legal action against the town."

Board member John Twomey agreed, saying in the long run it would take more time, but  it would be much fairer "to the town, to Mr. Smith and to all the abutters involved."

Attorney Peter W. Drum, representing Smith, said, "It is a minimal impact development. I don't think the Site Plan Review Ordinance applies; that would be the first grounds for our appeal."

He went on to say if the board determined his client's shooting range was a nonresidential use, then "you have got a lot of nonresidential uses in the town going on now. Then you get to the issue of selective enforcement … which may be a constitutional problem for the town."

A heated exchange occurred with a resident who felt it was a commonsense issue and disagreed with hiring an attorney. "You want to spend my money? I live on disability and there are a lot of other folks in this town that do as well."

Another resident echoed the sentiment, saying, "This whole thing comes down to a neighbor issue; it isn't a town issue."

Seizing the moment, Delio asked to call a vote on whether the ordinance does not apply to this situation.

Kassen said, "Frankly, I feel we have time and quite a few reasons to consult an attorney on this."

Roberts agreed, saying initially she followed along with Temple's interpretation of the ordinance but in the last few meetings has been "on the fence because I am unsure. It would be helpful to have our own lawyer to advise us."

Delio disagreed and said it would be a "waste of money" to hire a lawyer. No matter what gets decided, he said, "based on what I've seen in the defense of noise ordinances across the state, they get blown right out of the water every time."

When the vote was finally taken on whether the ordinance does not apply to this situation, it was defeated, 4-3.

Kassen said the board is cognizant that the town does not want to spend a lot of money and would "keep expenses as low as possible."

"No one wants to spend money on this; it's everybody's tax dollars," he said. "It could be that an ounce of prevention is worth a pound of cure. A little money on an attorney now saves a lot of people a lot of hassle, and potentially saves the town some expense."

The vote taken on whether to ask selectmen for funds to hire an attorney passed, 4-2. The next Planning Board meeting is scheduled for 7 p.m. Wednesday, Jan. 9, 2019, at the Town Office.