November 21, 2018
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State refuses town request for more time on shellfish farm expansion

Rich Beauchesne | Portsmouth Herald
Rich Beauchesne | Portsmouth Herald
Floats hold oyster grow cages on Spinney Creek in Eliot. Tom and Lori Howell have owned Spinney Creek Shellfish for 35 years.

KITTERY, Maine — The state Department of Marine Resources denied the town’s request to hold a second public hearing and delay a decision on the Spinney Creek Shellfish aquaculture expansion application.

At the request of concerned residents who felt their interests were not fairly represented at the Sept. 27 adjudicatory hearing, Town Manager Kendra Amaral wrote a letter to DMR Commissioner Patrick Keliher on Oct. 12 requesting a scoping session be held and for the department to delay its decision. In response, the DMR stated it was “confident” the process that had taken place provided “appropriate opportunity for public comment and safeguards the interest of the public trust.”

Lori and Tom Howell, owners of Spinney Creek Shellfish in Eliot, seek to expand their oyster farming operations to a maximum of 3.67 acres on the 127-acre Spinney Creek, which is split between Kittery and Eliot. The couple has worked on the creek for more than 30 years, and their oysters are distributed nationwide.

[After threats, ‘inflammatory petition,’ shellfish farm owners make case for expansion]

The Howells have argued it’s their right to expand their livelihood as a working Maine waterfront, on a body of water they’ve cared for for years. But a group of residents and abutters, called Friends of Spinney Creek, oppose the expansion, citing a reduction in quality of life, the environment and safety, and collected 400 signatures on a petition opposing the application.

The proposed experimental lease, which could contain 800 aquaculture cages at its maximum, would be on the Kittery side of the creek.

At the Oct. 10 Kittery Town Council meeting, residents pleaded with the council to help them in communicating their concerns to the DMR. While the hearing on Sept. 27 began at 6 p.m., the public testimony portion did not start until 10 p.m., long after a majority of the 100-some attendees had gone home to go to bed, the residents argued. They added the Howells, their experts and DMR representatives were given priority in presenting and no restrictions around doing so.

Members of the public who did speak were given a five-minute time limit and were prohibited from addressing anything other than the criteria determined by the DMR used to evaluate aquaculture leases. Views, property values and odors are not on that list, for example.

In Amaral’s letter to the DMR, she wrote, “The residents of Spinney Creek have expressed significant concerns about the impact the proposed experimental lease will have on their scenic area, natural resources and neighborhood character. Our residents were strongly encouraged to attend the DMR public hearing to express their concerns and ask their questions. In the end, the hearing’s restrictive format and scope, and the late hour at which the public testimony phase began, left our residents feeling disenfranchised from the process.”

[Maine communities torn apart by age-old debate: Business growth or water views?]

Amaral wrote while she understood a public scoping session typically comes before the adjudicatory hearing, she felt it was appropriate to conduct one at this time, to be both fair and procedurally appropriate. A scoping session had not been held because experimental lease applications do not require one.

Amaral also inquired about the DMR’s procedural rules, which include the requirement of municipality approval if the town has a shellfish conservation program in place, which Kittery does. In response, DMR Deputy Commissioner Meredith Mendelson said that only applies to lease applications in the intertidal zone.

In her Oct. 16 response, Mendelson wrote the process for aquaculture hearings is established by the Legislature. “While evidence that was unrelated to the lease criteria may have been excluded in the Spinney Creek hearing, it is my understanding the attending public was given a fair opportunity to be heard on the relevant issues,” Mendelson said.

In regard to the scoping session, she said it would not be a “useful or appropriate” action to take at this time because the evidentiary record on the proceeding has closed.

On Friday afternoon, Kittery Town Council Vice Chairman Charles Denault sent what he called “a formal complaint” to DMR. In regard to the public hearing, he wrote, “I was shocked by the blatant disregard of compassion and professionalism of the female staff member and others representing the state of Maine DMR. They were clearly agitated by the concerns being expressed by the residents. In my entire career I have never experienced the demeanor that was displayed by the DMR representatives as I saw on Sept. 27, 2018.”

[Town asks state for more public input on controversial shellfish farm expansion]

He requested DMR look at the application “from an unbiased and open view, apply a common sense approach, put yourself in the citizen’s shoes, review the facts and declare the public hearing portion tainted…that it was not held in regard to an acceptable higher standard.”

Kittery residents Norm and Kathy LeMoine, who live on the creek and oppose the expansion, said they were disappointed by DMR’s response, but would continue to work on behalf of the taxpayers.

“Overall, the Friends of Spinney Creek remain resilient,” Norm LeMoine said. “We hope that the Maine DMR ultimately will make the right decision based upon the meeting at Traip Academy. We have 60-plus property owners here on the creek who are still very concerned. But we are very appreciative of the work that’s been done by the town of Kittery, listening to us, showing their support. It’s been very encouraging to see.”

Kathy LeMoine said it’s “disrespectful” to the taxpayers when each time they write to the DMR, they receive no response. “We’re going to continue on, we’re working on some things,” she said. “I’m astounded that we have over 400 signatures and that doesn’t have any weight.”

Lori Howell did not immediately respond to request for comment.

The DMR typically issues application decisions within 30 to 60 days from the hearing date.

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