Searsport moves to adopt new appeals process

Posted Jan. 25, 2013, at 7:55 p.m.

SEARSPORT, Maine — A change to the way appeals of building permits and other decisions are considered is the subject of a public hearing scheduled for Wednesday, Jan. 30.

Under the proposed ordinance amendments, the appeals board would consider “only the record before the official,” such as the code enforcement officer, “or body,” such as the planning board, “who made the order, decision or determination. New evidence shall not be presented to or considered …”

In other words, Town Manager James Gillway explained, a person or group appealing a decision would not be able to re-argue the case. Rather, an appellant would have to focus on matters of process by the review body or official to make the case that errors were made.

The ordinance amendments would apply “retroactively to any appeal of an order, decision or determination on an application that was the subject of a pending review as of Jan. 15, 2013.” That means the controversial application by DCP Midstream to build a 23-million-gallon propane tank, which is under review by the planning board, would be subject to the amendments.

Gillway said the need for the amendments became apparent at a meeting of the appeals board in December. Thanks But No Tank, the local group opposing the DCP Midstream project, challenged the planning board’s finding that the company’s application was complete. The appeals board denied the challenge.

At that meeting, attorney Paul Gibbons, who advises the appeals board, reviewed procedures with board members in anticipation of the likely upcoming appeal by either DCP Midstream or the opponents. And he also looked at the existing appeals ordinance, Gillway said, and found some troubling inconsistencies.

The way the existing ordinance read, the appeals board could have been forced by a judge to hold what’s known as a de novo hearing; in essence, making the case for and against the project all over again.

“We could be forced by a judge to do it that way,” Gillway said. “We don’t want to leave anything to chance,” so the town wants to improve the ordinance. “We really are desiring to clean it up,” he said.

The long planning board hearing and review process for the DCP Midstream application that began months ago and continues next month has cost the applicant, opponents and the town a lot of money, Gillway said.

“I think it’s fair to say over $200,000 has been spent in the aggregate,” Gillway said. The town is able to pass on the cost of the experts it hires for the planning board to the applicant.

Some opponents of the tank have read sinister motives into the retroactive nature of the proposed ordinance changes. Gillway countered those assertions by noting that both the applicant and the opponents benefit by not having to re-argue the case before the appeals board, at a likely great expense.

“My job is to protect the town,” he said.

Under the proposed ordinance changes, decisions by the code enforcement officer, however, can be appealed with a full hearing on the facts by the appellant.

The planning board will host the hearing on the proposed changes beginning at 6:30 p.m. in Union Hall. The amendments would go before residents at the annual town meeting on March 9.

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