[0:01]Town of Chebeague Isla...
[1:39]We do have hearing if anybody wants to use a a listening device like you'd use in a museum, we have those. It will pick up the speakers. Okay. Okay, we're going to open the meeting and we just wanted to introduce Harry Costa who's our lawyer, the for the Board of Appeals, and a new to Sam, who's Charles. Carol's not here, she's in Florida. Um and we're considering the appeal submitted by Michael and Mary McKee. And the first order of business is to determine whether the Board has jurisdiction to hear this appeal pursuant to section 603.5 of the zoning ordinance. This section is as follows. Successive appeals, after a decision has been made by the Board of Adjustment and Appeals, a new appeal of similar import concerning the same property shall not be entertained by the board until one year shall have elapsed from the date of said decision. Except that the Board may entertain a new appeal if the chairman believes that owing to a mistake of law or misunderstanding of fact, an injustice was done, or if she believes that a change has taken place in some essential aspect of the case, sufficient to warrant a reconsideration of the appeal. This project was the subject of appeal of an appeal less than one year ago. The Board also declined to reconsider its decision following that appeal decision. Therefore, in order for the Board to consider this appeal, the chair has to find that an injustice was done because of a mistake of law or misunderstanding of fact, or that a change has taken place in some essential aspect of the case. I will give each party five minutes to address this question before us only. Please contain your comments to section 603.5. And those people need to step up to the clink so we can hear and they can be heard. So I need the first you got five minutes to address section 603.5.
[4:25]Good evening everyone. My name is Scott Dolan. I'm an attorney for the McKees. Um thanks for having us here tonight. Um I believe you received the submission. I have um sent through Attorney Burns. Do you all receive that yesterday? Great. And I addressed some of these issues in that briefing. Um I've opened to questions but I would um point out that there's been a uh enough of us accountable change, a modified application to overcome this this if you read this the section 603.5, there is an exception which requires the chairperson to find that is nothing different in the applications.
[5:25]Excuse me, that is not that was all that was all gone over in our initial hearing, so there's no change in that. But continue sorry, interruption. Thank you. And as my letter outlines, um there is a uh a conflict based on the um the express bias that you've put forth in the emails that we've attached to that letter, as well as the submission to the board selection. Excuse me, it was closed to you to you. We clearly said this hearing was closed to public comments.
[5:59]And we clearly said that we released at what time it is, but it's in our minutes. It's in Tad's minutes, it was clearly closed. So we had no obligation to consider any other things when we went into delivery. I've I've listened to it and heard some different.
[6:26]Then the last, I'm not here to argue with you about that because the McKees were denied an opportunity to present where the the Gager and Drew's attorney was able to submit them the same day. That deprivation of an opportunity to respond where they those issues raised by attorney Burns that were addressed by the Gager and Drew's in their submission, the McKees weren't allowed to rebut or present material that would have bolstered their application. That deprivation of due process is exactly what is addressed here in section 603.5, which is an injustice has been done. And due that injustice, that is the reason for this reapplication, this modified application. And there is enough here that we urge the Board to allow this here to go forward.
[7:20]Yes. Yes sir. Um, I didn't even read it. I didn't get, we got it just before the hearing and I don't even know if Cheryl or or uh um anybody on the board at a chance to even read it, but I had not even read it, so it didn't affect me at all because it was arrived so late for the hearing.
[7:58]Yeah, you mean that the December first. Yes. And we also. Excuse me, if you cannot be polite in this hearing, I am going to ask you to leave. We don't need that, George. Okay. All right, uh so let me take a whack at this. Section 603.5, successive appeals. So if the chairman believes that owing to a mistake of law, which our lawyer just talked about, doesn't sound like you guys agree with that, or a misunderstanding of fact. So I'm prepared to show you a bunch of misunderstandings of fact. So let's get two of them out here right away. You classified. He needs to stand to see this. Absolutely. You classified our property as resource protected because it was on a coastal bluff. And you'd look took a look at the main geological coastal bluff thing, page that was appendix of the Shoreland zoning ordinance, right? And you couldn't read it, but you still interpreted it. No, that's not correct. That is correct. It doesn't say. It does say that. Right here. Yes.
[9:25]Yes it does. I agree. No, it does say right here. Resource Protection District. You agree with that? No, it says this property. When was this done? This was done August 3rd, 2016. That predates the Share Shoreland Zone ordinance. The Shoreland zoning ordinance is about the Shoreland Zone ordinance was signed in 2018. It was 2018 and this is the correct terminology for circuit. Excuse me, that is not correct. If you read to the law and I'm already in my lawyer. Do I have five minutes or you're going to give me extra time? No, I'm just repeating. If you read to the bottom of the Shoreland zoning ordinance, it says the effective date, no, it says section 512, this will be more productive if you just listen to present without interruption. So yes, I agree and I want to go through this because you read the notes that said resource protection. But this was done in 2016 before the Shoreland zoning ordinance. And so when it says resource protection here, it's labeled 75 foot setback, RPD, resource protection. Because at that time 75 feet back was resource protection.
[11:11]Yes. Now, I want to go back to this because this would be mistake number two. You read this coastal bluff and you interpreted it. Now, if you had taken the time or had this available to read the actual notes, all this stuff, you might have come to a different conclusion. And the notes are number one, this map is intended to provide only general information on the overall stability of bluffs. It is not intended to be the sole basis upon which specific land use decisions are made. You can't make specific land use decisions based on this. Number two, you guys had a long conversation about how wide the line is. Right? What it says right here, the width of the band is not related to the width of the bluff. The width of the band is not related to the width of the bluff. Number three, beaches and dunes do not form a bluff. Beaches, the front of our property as you well know, is all beach, it's Chandler Beach. So if you live on a beach, by definition, you are not on a coastal bluff. Now, number four, this was done in 2002 and it is since been superseded. So if you look at the latest one, the one that you should be looking at that was done in 2020, you can see clearly that our property is gray and gray means no bluff. And if we're not on a bluff, then our property is not resource protected. And if we're not resource protected, then I'm prepared to show everybody that we can build. So it was a definite mistake that you called our property resource protected, based on a survey that you didn't read carefully, and based on a coastal bluff map that you didn't read carefully. But you made some big decisions and that's why we're asking to come back. Thank you. You want more examples? Because I can pull them out, but we might want to save them later. No, I think we're done.
[13:43]Okay, thank you. Chairperson and board. My name is Natalie Burns. I'm the town attorney. I am here tonight representing the code enforcement officer, uh, which is why you have your independent counsel tonight. First of all, I hope very brief on this issue. We do not agree with the counsel for the Gallagers and Drews that this particular provision of the ordinance applies in this situation. Uh, the the cited section is uh section 603.5. That is found in the zoning ordinance. There is not a similar provision in the Shoreland zoning ordinance. The appeal before you tonight is limited to the Shoreland Zone, and so we believe it doesn't apply for that reason. Uh, even if it did apply, we believe that that provision is limited to successive appeals. Original appeals to the board. So for example, if somebody requested a variance from you, and they didn't like the answer they that you gave, they didn't appeal it. They decided to come back in two months and file the same application again. We believe that that applies to that kind of situation and not to one where an application has been made to the code enforcement officer. But we don't think you even need to reach that particular issue. And then finally, on this issue, we would ask that even if the Board feels that this does apply here, that you also go ahead and rule on the merits of the appeal so that we have all the issues decided in one place. Uh, because we assume there will be an appeal of this and it would be good to have it all done at once. Do you have any questions for me? That's all I have. No, I'm good. I have a question.
[18:04]Um I guess I have I have a question. So, as far as, as far as how this board can hear any of this conclusions or or or laughs, you know, there's some things that were spelled out in that decision, and there are other things that seem to be a little gray, so maybe we didn't provide enough uh you know, um guidance to our code enforcement officer or still you know, or even or even the McKees. Um We might not think that there are a bunch of maps and that we can all as citizens look at the maps and point to the maps and make our case. So there's a section of the code, which is 202.2. The depictions of the Shoreland zoning overlay district on the town of Chebeague Island zoning map are illustrative of the general location of such zones. The actual boundaries of these zones may be determined by an onsite evaluation, done by an appropriate professional, using the criteria established in section 204.1 of this ordinance. Provided the onsite evaluation is reviewed and approved by the code enforcement officer, where such measurement is not the same as the location of the boundary on the town of Chebeague Island zoning map, the Board of Adjustment and Appeals shall be the final authority as to the location.
[20:10]So, do you have a professional who can give us actual evidence, somebody who has a license, who who we can actually, you know, people can sue them, and take action against their license, somebody whose testimony fits into section 202.2? So it's depends on what you're asking. So yes, absolutely. I couldn't make any clearer what I'm asking. No, because we've provided a professional, very detailed survey. Right? But that survey is all about what is on our property. We have one foot integrals. We've mapped out the contours by one foot, is how detail that survey is that we did. I can look at it and see exactly everything we need to know. I've provided that to that town multiple times for multiple permits. And I don't understand what you don't see. So you're asking about the boundaries.
