Phippsburg
Board of Appeals holds SECRET meeting to grant variance to Edward and
Elizabeth Johnson as requested by their agent Richard Hill |
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Board grants
variance with no public input or hearing!!!!! |
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| The decision of the Phippsburg Board Of Appeals to grant a variance to Johnson to allow two buildable lots on a 60,000 sq. ft. parcel was appealled to Superior Court, State of Maine. The town zoning ordinace requires a minimum lot size of 40,000 sq.ft. per dwelling (see the Johnson/Clark Hill Grandfathering-soon). The Court overturned and reversed the Board's decision, saying that there was never a proper hearing and therefore the Board's action had no validity. The Court addressed the issues at hand as well and decided that there should be no division of the lot under the reasons cited by the Board. We had tried to get the Board to reconsider their decision based o he fact that no-one knew that they had even taken up the matter, and therefore there had been no due process in which we could, as is our right, be able to appear before the Board and comment about the proposed activity being granted an exception to the town's existing zoning regulations. The Board said we were too late to bring any such objection, since the time in which to do so had passed. Our point was that no one new about the meeting, if there was truly any "meeting" since no one except the Board and the applicant knew about it, so we therefore could not ask for reconsideration of something which had happened within the time frame prescribed. I charecterize this as being a SECRET meeting since it was known only to the applicant and the Board, and no-one else. The particulars of the discretionary power that the Board exercised in allowing consideration of a Planning Board decision long after the time frame allowed (they DID however hold US to the time frame outlined in the Ordinace in denyin our appeal of their decision!), the lack of anynotice to anyone, the disregard for the ordinances governing the bringing of an appeal of Planning Board decsions should be a total embarassment to the Board. The courts issue a scathing condemnation of the Board's Action-see page 10. | ||
The Decision (in
PDF fORM Requires Acrobat reader |
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PAGE |
CONTENT |
COMMENT |
| Page 1 | Introduction of Parties, Reason for Appeal |
Intros Johnsons and Request to the court to reverse Decision of Phippsburg BOA |
| Page 2 | Findings Of Fact-The notabble elements of the case,timing of actions, applications, etc. LUO=Land Use Ordinance=Zoning Law |
This outline who did what, when |
| Page 3 | Notes that Request was made to BOA nine months after Planning Board denied request; quotes sections of pertinent ordinances | This lists the most blatent of procedural errors by Board and quotes the sections of ordinances which they blatently disregarded |
| Page 4 | Applicable Ordinances; More ordinances-notes lack of Notice to and lists abutters | |
| Page 5 | Notes that town held another hearing April 6, 2002, at which it decided not to hold a hearing due to lapse of time since their decision was past that allowed by ordinace. The court notes the timely appeal to the BOA once aware of the action of the BOA by all parties to the case. | The Board had considered the Johnson request for a Zoning Variance 8 months past the time allowed for such an appeal. At our "hearing" they cited the time frame in the ordinance during which one allowed to ask them to reconsider their action. This time frame had lapsed and so they decided they could NOT hear any appeal to change their decision. This was incredible use of a double standard, one for the applicant, one for the rest of us. The Board had allowed the applicant to be heard 8 months after the time frames allowed by the ordinance. The Board would not allow us to be heard, citing the same time frame requirements in the ordinance (which they had ignored for the applicant) as their reason. |
| Page 6 | Court denies argument by town that it notified abutters by notifying Richard Hill who was the name listed on the tax map, but who was only one of many owners. Town claims to have fulfilled it notification obligation by notifying R. Hill. Court states that R. Hill is also the applicant, and that it is not the person listed's responsibility to insure notification (he never notified anyone else who co-owned lots with him) but is, by ordinance, the town's. | Town claimed that by notifying the person applying for the Variamce, that it had fulfilled its obligation. It was alos argued that the abutting property had no real value, which the town selectmen had also tried to validate as an argument against us by accepting a tax abatement application from R. Hill which devalued the land. That application listed the Hill family as the only owners of this land. See R. Hill tax abatement-Soon. |
| Page 7 | Motions to Dismiss: Timeliness-Court rejects arguments by town that objection to the BOA action was not brought in a timely manner-within the time frame allowed by the Ordinance-Since there was no notice this was impossible- Issues of standing: Town argues that none appearing before the court have standing - court rejects this argument |
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| Page 8 | ||
| Page 9 | ||
| Page 10 | Scathing condemnation of the BOA's actions in denying due process through its failure to comply with its own procedures. | "...the Board utterly failed to comply with its own procedures which are designed to give municipal officials, abutters, "concerned persons", and the public the opportunity to attend and be heard a to questions concerning applications before the Board." |
| Page 11 | Timeliness of Johson Appeal of Planning Board, Nature of Variance relative to BOA appeal procedures, issue of grandfathering via old permits which had lapsed. | |
| Page 12 | Court outlines possible reasons a variance might be granted, none of which are contained in any of the arguments then or now (hardships, etc) Court notes failure of Johnson to obtain a building permit within the time frame mandated by ordinance following granting of variance. States Court finds no arguments to uphold issuance of a variance. |
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| Page 13 | Conclusions: Court reverses and Vacates BOA actions. Rejects request to remand (return issue to Board for consideration) |
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| Page 14 | Signature, dated May 15, 2003 | |
| Complete decision in one file for printing-Caution:Large file PDF | ||