Minutes of Public Hearing and Board Discussion

Town of Frye Island Planning Board

August 19, 2006

Frye Island Community Center



The Public Hearing was called to order at 8:50 a.m. by Ed Johnson, Chairman Pro-Tem.


Present:          Marge Hommel, Ed Johnson, Steve Kaplan, Kathy Potts, David Treacy,

Paul White – Town of Frye Island CEO

Excused:         Sam Donio, Paul Peterson




Joe Potts – 1633

Roy & Colleen Clough – 3032

Bob LaDow – 17

Don Hadley – 174

Ren Yueer – 301

Ed Charrette – 79

Andrew DiSalvo – 1889

John Nun – 269

Brian Nisula – 3037

Jim Kuiken – 323


Bill Speed – 268

Jay Bryant – 354

James Reali – 1816

Mark Sullivan – 288

Carl Hommel – 68

John Crosby – 27

Alan Russell – 90

Lois O’Connor – 140

Wini Rogers – 1987

Charlie & Annie Crivallaro – 1657




1.  Public Hearing on proposed Amendment to the Growth Management Ordinance


The meeting was opened for comments from the public – Comments noted are in the order they occurred; comments are the individuals’ own opinions and perceptions.

Paul White, CEO, opened the forum.  He stated his position that the Planning Board is responsible to the Town of Frye Island for all changes in the Growth Ordinance; in this instance, the Planning Board is also required to hold a Public Hearing on the Board of Selectmen/Executive Committee decision to place on the Warrant an article proposing the elimination of the current Growth Ordinance.  John Nun clarified that it was the Board of Selectmen’s Warrant article.  Paul White responded that under State law, it is the Planning Board’s responsibility to review the BOS decision and place it before the people.  David Treacy stated that it is our duty to record planned changes; if a Warrant article does not originate with the Planning  Board, it is not the Board’s responsibility to conduct a Public Hearing.  Others pointed out that the Board of Selectmen had conducted two Public Hearings on the Growth Ordinance in the spring.



James Reali said that a straw vote at the May hearings indicated an overwhelming wish to eliminate the current Growth Ordinance, and asked why, under those circumstances, the Planning Board had drafted an amendment.  Steve Kaplan replied that the Board had discussed the ordinance and decided to draft an amendment; the Board of Selectmen then created its own Warrant article, which will accompany the amendment on the Warrant.  Paul White reaffirmed his position that the Planning Board is required to include the Selectmen’s article in the Public Hearing.  Marge Hommel stated that Maine Municipal Association said that the Board of Selectmen could conduct its own hearings, and that this hearing would address the Planning Board’s amendment.  James Reali requested a third Public Hearing on the Selectmen’s article.


John Nun declared that the public was due more information from the Planning Board regarding the process and the decision to develop an amendment, rather than eliminate or keep the current ordinance.  Kathy Potts read the draft Minutes from the July 28, 2006 meeting, which detailed the process in arriving at the decision to develop an amendment to the current ordinance.


Don Hadley told the Board that he finds that the proposed amendment more complicated and going in the wrong direction;  he stated that the Growth Ordinance has devalued his property, and wanted reassurance that the possibility to rescind the current ordinance is on the Labor Day Warrant.  Steve Kaplan assured him that were the amendment to appear as a Warrant article, the opposing view from the Board of Selectmen would also appear on the ballot.  The changes in the Ordinance are designed to give people more flexibility; no money would be lost by property owners, and it removes inequities.


James Reali asked the Board to explain the lottery and deferment process.  Steve Kaplan responded.


Jim Kuiken questioned the amendment’s estimate of an average of 15 new starts every year.  Marge Hommel explained the process of not filling vacancies resulting from deferred starts and/or lottery winners.


Jim Kuiken inquired about the origination of the lottery.  Marge Hommel replied that a lottery would level the field for people wishing to build, and might possibly eliminate the abatement issue.  Paul White stated that even with a lottery, property owners are not being allowed to use their property and it does not solve the abatement problem, because the reason for the abatements still exists.  Marge answered that abatements being granted to owners who purchased after the Growth Ordinance was put into effect, with foreknowledge of the process, places the abatement in question.  Steve Kaplan opined that perhaps owners should have to prove financial hardship before being granted an abatement.  Paul White did not agree.  Jim Kuiken remarked that there are still people without growth permits, and he would like to ask County Commissioners if abatements would stand up in court.


John Crosby stated his opinion that placing the amendment on the Warrant would give the Town voters three options:  retain the ordinance as-is, amend it, or rescind it.


Ed Charette stated that the names of those people obtaining abatements should be published.


Andrew DiSalvo said that an abatement is granted due to de facto lower property value and as an exchange for lower prices.  Dave Treacy responded that the root of the problem is the fact that the appraisal of our unimproved lots is not based on fair market value.  Some people in Emerald Point bought property after the ordinance was in place.  Market value is based on the ability to build.  Mr. Clough, who holds an abatement, responded that there was no Growth Ordinance in effect when he bought his property.  He opposed the original ordinance when it was proposed.  He stated that a realtor has told him that his property has decreased in value as a result of the Growth Ordinance.  Mr. Clough’s opinion is that no study was conducted on how growth has impacted the Town infrastructure prior to the current ordinance being put into place, and he expects written language to prove statements that growth has affected infrastructure.


Steve Kaplan responded that the water system is being evaluated for an updated Comprehensive plan.  The existing water system is inadequate for the current number of homes on Frye Island, and it is estimated that there will be a 350% increase in usage based on projected cottage growth.  The proposed lottery allows people to move up their estimated construction start.  Over time, economics will eliminate a large jump in new construction.


Comments were made from the public regarding the need for public hearings and the honesty of the members of the Planning Board. 


John Nun referred the group to paragraph 6 of the proposed amendment, commenting that the words “average will be” has no data point, and is not enforceable.  He recommended changing the wording, or deleting the phrase.  Members of the Planning Board concurred.


Paul White inquired as to whether the wording of the amendment was reviewed by the Town attorney of the Maine Municipal Association, and asked whether wording would be changed.


Joe Potts reminded Mr. Reali of the two public hearings on the Growth Ordinance held by the Board of Selectmen/Executive Committee in the spring, and that a special Town Meeting would be held on Labor Day weekend.  He stated that the Town is giving the voters a voice and a choice.  Mr. Potts was, however, troubled by the number of new construction starts that could occur due to unlimited deferments, possibly resulting in 26-29 starts, as opposed to the estimated average of 15. 


Paul White said that facts are missing currently, and that many facts were omitted when the existing ordinance was designed.  He feels that a Growth Ordinance is needed – but not this one.  He feels the primary need is to protect the Town against developers.  He recommended that the Planning Board obtain the facts behind their statements; the current ordinance was made from misperceptions or personal feelings.  Kathy Potts objected to Mr. White’s indictment of the Board at the time the current ordinance was written and passed by the BIT.


Marge Hommel stated that as a mathematician and statistician, she could not agree with Joe Potts’ estimate of potential new starts in any given year.


Carl Hommel expressed his position against the proposed amendment and offered that he feels it is too complicated, and is uncertain as how it will be enforced by the CEO.  He doesn’t feel it will solve the abatement issue, and recommended that it be withdrawn.


Don Hadley said that the original ordinance was a knee-jerk reaction to perceived growth.  The market will take care of growth; that the Planning Board’s job is to plan for making the infrastructure meet the challenges of growth.  Steve Kaplan responded that the infrastructure is being addressed, and the Comprehensive Plan is in the process of being revised; voting down the amendment now takes away the option of the Town to make a decision. 


Paul White stated that the current ordinance requires the Board of Selectmen to review it every three years, and he initiated the review by the Board of Selectmen last year.  Joe Potts responded that Paul White had recommended that the Board of Selectmen leave the ordinance as-is or remove it.  Mr. White affirmed that had been his position at the time of their review.


Mr. Bryant asked for clarification regarding the voting process at the Town Meeting.  Jim Kuiken clarified that the Board of Island Trustees (cottage owners) will vote on any Growth Ordinance Warrant article; if the BIT approves a land use Warrant article, it then goes to the registered  Town voters.  If The BIT rejects a land use article, it does not proceed to Town voters.  James Reali stated that the voting procedure is unfair.  Joe Potts explained the voting process and its history at length.  James Reali told the attendees that confusion about voting procedure is another reason to do away with the Growth Ordinance.


Mr. Sullivan addressed the group and said that although he had originally supported the amendment, he had been convinced by the discussion taking place to either keep the current ordinance or eliminate it all together.


Paul White reiterated that people have a constitutional right to vote on the use of their land.  A building moratorium or Growth Ordinance is permissible, but infrastructure changes must be addressed.  His opinion is that no facts were mentioned in the 2003 minutes pertaining to the origination of the current ordinance, and he feels that forethought was not given regarding potential harm to the property owners.  His opinion is that the only alterative is to eliminate the Growth Ordinance; and if the Town changes the ordinance at this time, there may be more challenges from property owners unable to build on their own timetable. 


James Reali asked again if abatement is a “big issue.”  Steve Kaplan repeated that a lottery could slow down abatements.  Jim Kuiken affirmed that the current abatement situation stimulated the May and June public hearings.  He also opined that although the current ordinance limits new building starts to 15 per year, “it also forces 15 per year.”


Jay Bryant added that he would not have applied for a Growth Permit if the ordinance hadn’t been instituted, and asked how many lots were purchased by developers.  Paul White answered that he didn’t know.  Jim Kuiken commented that a three-year deferment would help developers 100% and would increase the price of real estate.  Paul White concurred.  He added that many people want the Growth Ordinance, but he recommends pulling the amendment off the table;  he doesn’t see it improving things.


Mr. Bryant asked if the Town could put a building limit in effect for three years in order to get strong data on the infrastructure.  Steve Kaplan answered that the infrastructure will be addressed in the revised Comprehensive Plan.  Jim Kuiken disclosed that the ferry has shown a reduction in traffic each year since 2004.  A workshop discussing a 5-year plan for both the water and ferry systems will be held on August 26, 2006.


Mr. Clough asked that someone put together a maximum estimate of the cost to the Town resulting from tax abatements.  Joe Potts responded that the potential annual cost is around $50-60 thousand annually.


The Public Hearing was closed at 10:40 a.m.


The Planning Board addressed the amendment.  Board discussion revolved around the comments at the hearing, the possible results of a vote at Town Meeting, and whether the amendment should be scrapped in its entirety or by section.  


Marge Hommel moved to send the draft amendment to the Town Warrant.  Kathy Potts seconded the motion.  The motion failed, 4-1 (Marge Hommel.)



2.  Public Hearing on Ordinance Limiting the Clearing of Unimproved Lots


David Treacy presented the proposed ordinance, stating that it had been observed by the CEO that people are currently clearing in a completely uncontrolled fashion.  There is no reason to clear unimproved lots, if not building, and it is inconsistent with the goal to preserve the rural character of Frye Island.


Jim Kuiken inquired as to the definition of “clearing.”  He was referred to the language in the proposed ordinance.


Paul White explained that there is currently no authority to prohibit the cutting of trees and brush, other than under Shoreland Zoning.


Ed Charrette commented that “there should be teeth” in the ordinance.


Paul White mused that the ordinance would more properly appear in the General Standards section, rather than in the Building Permit section.  David Treacy agreed, commenting, “that’s language.”


Jim Kuiken inquired as to the definition of “extensive.”  Paul White responded that the word needed definition and work.  Jim Kuiken added that the percentage of cutting allowed should also be defined.


Brian Nisula asked how unbuildable waterfront property would be treated. 


Joe Potts commented that the language should be explicit as to penalties for violations of the proposed ordinance.  He suggested that the Board consider using the language in the Maine Shoreland Zoning regulations.  Carl Hommel responded that penalties are already defined.  Paul White suggested a $25 per day fine, and agreed that it is a good idea to specify the penalties for offenses.


Carl Hommel asked why FII was excluded from the proposed regulation, and David Treacy responded that FII should be considered trustworthy;  in addition, FII provides recreation facilities for the Town and may find it necessary to clear some sections of recreation land in the future.


Ed Charrette recommended that the Board do further work on the proposed ordinance;  James Reali inquired as to who would enforce the proposed ordinance and was told that the CEO would be responsible for enforcement.


The Public Hearing was closed at 11:00 a.m.


Kathy Potts moved that the Planning Board defer further discussion on the proposed ordinance until August 26, at which time Paul White is to bring a refined version of the ordinance to the  Board.  Steve Kaplan seconded the motion.  Motion passed unanimously.



New Business:


Proposed Public Works Ordinance


John Crosby, Director of Public Works, has asked that an ordinance be written in order to enforce the current Policy regarding the use and opening of Town roads.  Steve Kaplan brought the request, which would essentially convert the current policy to ordinance so that the policy can be enforced and fines imposed for violations.


Ed Johnson inquired whether this would be tied to the building permit process;  Paul White responded that road openings more appropriately belong in the land use section.  David Treacy suggested amending the Land Use section and incorporate proper additions. Marge Hommel requested that the topic be placed on the next meeting’s agenda, and that Board members receive copies of the proposed ordinance prior to the meeting.  Paul White agreed to rewrite the ordinance and present it to the Board on August 26, 2006.  He also indicated that he has additional topics for the Board’s consideration, as well as for possible presentation to the Town voters at the Annual Meeting in October.


The meeting adjourned at 11:12 a.m.


Respectfully submitted,


Kathy Potts