Zoning Board of Appeals
Minutes
June 27, 2007
Present: Barry Watson, Kathy Wood, Vincent Palange, Kyle Coolidge, Debby Flanigan
Others: Lee Lowry, Carol Desco, Betty Bailey, Bob Daigle, Dan Fossett, Frank Monroe, Mary Chandler, Calvin Austin, Albert Frick, Michael Hill, Gerald Haines, Tim Hanley, Lynn Hall, Kinderly Hodgdon, Priscilla Carl, Ruth Foster, Carol Ann Doucette, Gary Foster, Frank Vorlicki, Pam Wilkinson, Cal Cutter, Andy Upham
Barry Watson called the meeting to order at 7:10 p.m.
Approval of Minutes
Approval of May 23, 2007 Minutes
No action taken
Old Business
New Business Variance Requests (Tabled) Continued on After Site Walk on June 12, 2007
Administrative Appeal by Gerald M. Haines, II and Francisca D. Morant is applicant, for Code Enforcement Officers decision regarding Twin Brooks Camping Area, L.L.C.
Lee Lowry of Jenson Baird, attorney for Twin Brooks reviewed a written response provided on the issues. The first two pages deal with the grandfather status of the lots in questions and addresses the other violations that appellant claims to exist. Mr. Lowry noted they admit there were some violations and all of those have been remedied. Regarding the other alleged violations, Mr. Lowry asserted no violations exist. Mr. Lowry also submitted material from Al Frick, consultant to the campground, that addresses the claimed shore land zoning violation to show compliance. Mr. Lowry also provided photos to show the feel of the campground. Some of the photos show the nature of camping in the 1960’s. Mr. Lowry also provided a glossy photo dated September 1963 that looked down the line, camp site 3 on the plan would be
at the back and the telephone pole at the left front corner of now site numbered 9. Mr. Lowry noted the photo shows a picnic table at the site. The last material provided was an affidavit from Peter Jacks. Mr. Lowry reported Peter Jacks and his family had camped there for some time and states the camp sites were in existence in the 1960’s.
Mr. Lowry noted the campground started in 1961 when the Austins purchased the property. The sites that existed early on were somewhat informal with people bringing tents. The DEP has investigated the fill at the sites at the end of the spur shown on the plan in their investigation of the allegations of fill being brought and have investigated the fill that was put in this year to determine what existed prior to the 2006 fill. The DEP was looking for older ground in relation to the new fill and they found a layer of older fill and determined it predated any applicable regulations. It was a thin layer of gravel put down in 1971 when they were constructing the campground office. The fill was put down in that area because people tenting in the area had requested the sites be improved. Mr. Austin was addressing
a customer issue that had been around for a number of years and the sites were not new sites in 1971. The relevance of the DEP investigation gives more evidence the sites existed at that time. Mr. Lowry placed a plan of the campground on an easel for reference as people came forward to speak regarding the grandfather status of the camp sites.
Carol Desco, great niece of Mr. Austin, stated her grandparents had a campsite since she was a baby, in what is now site 12 in the lower portion of the campground. Mr. Lowry asked how comfortable she was with this recollection and if there were any landmarks. Ms. Desco noted there was a large rock we use to play on. Ms. Desco believed the rock would be just about right behind site #12. Mr. Lowry marked the site indicated with an x. Mr. Lowry asked how many years do you know your family stayed at campground. Ms. Desco responded in her immediate family it would have been 1970. Mr. Lowry asked if Ms. Desco had any recollection of any camp sites beyond toward the bottom of the page toward Mr. Haines’ property. Ms. Desco noted yes there were about three when you come to the end of the road and there was one across
the road. There was one in the area of site 9. Mr. Lowry asked if there was something beyond the telephone pole. Ms. Desco noted yes, Mr. Lowry asked if there were any sites toward the waterfront. Ms. Desco noted yes, there were at least two in area o f sites 7, 8, 9.
Betty Bailey, Cal Austin’s niece, stated in 1963 she was 17 years old at the time and remembered clearing sites by the big rock marked on the plan with “x” during Ms. Desco’s comments. Mr. Lowry asked if at any time beyond that if she was clearing sites. Ms. Bailey stated she only remembered 1963, after that she started working for her father and did not come up as often. Mr. Lowry asked if Ms. Bailey had any idea how many or how far down they cleared sites, indicating the brook on the plan. Ms. Bailey stated they went as far as we could go without intruding on someone else’s land. Mr. Lowry asked how big an area might you have been cleared. Ms. Bailey stated the sites would be smaller because most people had tents when they came in.
Bob Daigle stated he was 54 yrs old and started camping when he was about ten. Mr. Daigle state we could not afford a place on the lake, but could afford to camp. Mr. Daigle stated he knew the campsites were there as in the summer of 1966 he was 13 years old and talked his parents into taking site with the outhouses behind so no one would come and go without us getting a look at them as we were interested in knowing the 13 year old girls. Down by the water there was a camp site with pretty teenage girls from California. We showed the girls were the twin brooks were and this is where I had my first kiss and that is why I remember this and that is why I can tell you that. It is a wonderful place where we could go camping. This is a place where the average person can bring their family and touch the water. Mr. Daigle
stated, I think people from away come in and buy our camps. The only place people can touch the water is at Twin Brooks Campground.
Dan Fossett of Cumberland stated he was 48 years old and was coming to Twin Brooks since probably 1968-69. Mr. Fossett stated I could not tell if there were eight or nine campsites, we were a kids and there were a lot of kids from the area that all camped there. There were always a bunch of campsites there. Mr. Fossett came up in the 70s and those sites were there. Mr. Fossett has been up there now 5-6 seasons with his wife and kids.. It is a very nice campground. One of the reasons we camp there is because there is no arcade. Our kids have made friends with people from Massachusetts and thinks the Town of Gray has a very nice campground. Mr. Lowry asked if the people tended to be in tents. Mr. Fossett answered there were some tents, some pop ups and some smaller trailers. Mr. Lowry asked if there was anything in
particular that gives him confidence. Mr. Fossett answered it, it is the rock. My kids know where the rock is. Mr. Lowry asked if it was correct, the rock is where the “x” is marked on the plan. Mr. Fossett answered yes. Mr. Lowry asked if there where camp sites beyond and Mr. Fossett answered yes.
Frank Monroe of Buxton stated he had; camped from 65-71 and had many fond memories as a child. He did not remember how many camp sites, but remembered they camped on a site close to where the office is now and there was a site nearby where everyone gathered around the fire at night and sang songs. Mr. Monroe stated Calvin did not join us much until he came up one night and told us to stop, as it was beyond quiet hour and there was one couple down by the water who complained. They were located down in the area of sites 7 and 8, so the next weekend we invited them up so we could play beyond quiet hour.
Another person spoke of her biggest memory of the campground is the rock because that is where we would play store. The biggest irritant was when the campsites down around the rock were rented. She stated we camped there for years and brought our kids there since 1964 until five years ago. Mr. Lowry asked her to indicate on the plan where the rock was located. The spot marked with the “x” was indicated and she stated there were always campers, mostly tents. Mr. Lowry asked if there were campers there every summer. The answer was yes. Sometimes the sites were not filled during the week, but would fill during the weekend. Mr. Lowry asked if she recalled if they went down to sites 7 through 12. The answer was yes, and stated across from the office is where we would camp when we could finally afford a
pop up. Mr. Lowry identified site 5 and asked if there were sites there and the answer was yes.
Mary Chandler agreed with everyone who had already spoken that the camp sites were there and stated she had just spent the last 45 minutes reminiscing about all the times growing up. When dad was ready to retire we were asked to help him to see if he could afford to retire and it was then that I realized we were poor, but growing up we felt rich as we were able to go here every summer. Mr. Lowry indicating sites 13 through 5, 6 14 along the horn and asked if sites were there. Ms. Chandler answered yes.
Cal Austin stated over forty years ago my wife and I were looking for a place on the lake and bought over 100 acres. At the time I was a poor school teacher and needed something to pay the taxes and decided to try a campground. There were no regulations at the time. One thing I did was to get a machine and started near the shore and started to come up the bank to clear the brushes. When almost half way up the bank I realized you could not have grub as kids would trip on the branches, so those were cleared. Then came a time when you could not bring sand on the beaches though you could go up to Raymond after dark and see dump trucks loaded with sand. The person to the left of the campground may not have known what the law was and every year he would bring in a truck load or two of sand and every year the sand he put on
his beach would migrate to me. We never brought anything in as we did not need to. We started with a very quiet campground. We would tell people this road goes two ways and if you do not like the way we run the campground you may leave. In forty years we never had a complaint from a neighbor. We had the ambulance come in four times, three times for me and we had the sheriff in 2 to 3 times when someone was fighting. Other than that we had no problems for forty years.
Mr. Lowry asked Mr. Austin to describe the situation with building the office and moving the excavated dirt to the area in question. Mr. Austin stated the area in question after a rain there would be water on it so they put some fill on it to soak up the moisture and in order to establish a place to put a tent. People would say I want my tent there and gradually we picked the better places; and of course they wanted to be close to the water. Mr. Lowry asked Mr. Austin to discuss the 1991 plan or drawing that was produced when you wanted to expand the sites at the end of the road that are now sequentially numbered. Mr. Austin answered someone would come in to camp and camped on site 3, then 2 or 5. Then we found out there was too much space and we could make another camp site. We could not erase the old numbers out in
case someone would call and ask for #3, it would not be the same site.
Albert Frick soil scientist and site evaluator said he wished to address the alleged and real violations. Mr. Frick stated yes there was a violation under DHE license for campsite. Cal and Andrea had a license for 43 campsites and have operated up to 55. Ken Myers wrote a letter regarding this and that is the 1ast time this violation was cited and stated if the water source is monitored they may operate up to 55 sites. They operated from 1993 to date and nothing has come of it. They were cited by Paul White and were asked to go to the Planning Board and that is what we are doing. The other violation that was true was a violation of NRPA wetland fill. There was some fill that spilled over onto virgin wet land that was found by DEP scientist and Twin Brooks was given two options to remove the fill or submit an after the
fact license application. They chose to remove it and a letter from the State states the case is closed with no penalties assessed. Regarding the allegations of shore land zoning, Jeff Calrich from DEP and Christine Goodrich with the code enforcement officer walked the entire site and measured harvested tree trunks and found no NRPA or shore land zone violations in that area. As far the wet land file, DEP feels this has been corrected and the tree cutting has been done proper. They are now trying to advance this project to the Planning Board, but first we need to discuss the grandfather status of the lot. Letters from DEP were supplied by Mr. Lowry.
Mr. Lowry stated the biggest thing presented is the photographs that seem a change in vegetation appears and acknowledge that there has been a change, but the removal of trees and vegetation is permitted within the zone. There are some limits on what can be removed, but it has been determined that no violation has occurred by people finding a tree trunk and making an on the ground evaluation; and not relying on photos that may be startling, but on the ground measurements. It is startling to see the picture but the board was at the site walk and you noticed that some of the area has already started to re-vegetate.
Kevin Beal council for Gerry Haines and Francisca Morant; passed out a letter to follow-up on the jurisdiction issues, additional affidavits and additional photos taken since the last hearing. Mr. Lowry stated if this was new evidence since the filing of the appeal, that is not an issues in today’s appeal and did not want the appellants to present any allegation of additional violations;. Mr. Beal stated they do not allege new violations that the photographs indicate a pattern of violations and go to the credibility of the evidence presented by the campground. Mr. Lowry objected to any evidence of continued allegation of behavior.
Mr. Beal asked Ms. Desco when the last time she had camped at the campground. Ms. Desco answered she is currently camping there with my husband and two kids and have been a seasonal for two years. Mr. Beal asked Ms. Desco to please describe the camp site. Ms. Desco noted it is smaller than now with tress around the edge and stones for a fire. Mr. Beal asked if it was grassy or gravel. Ms. Desco stated a portion was grassy and there was a portion that never had grass
Mr. Beal asked Mr. Daigle how recently he had been there. Mr. Daigle stated 2004. Mr. Beal asked if he camped every year. Mr. Daigle answered he had camped throughout his childhood, stopped during college and during military service; returned to Maine in 1984 and joined seasonally. Mr. Daigle stated he had camped consistently from 1963 to 71 or 72; and again from early 80’s. Mr. Beal asked how close Mr. Daigle would camp in the circle close to water front. Mr. Daigle answered they moved around in the early years. One time we camped down the hill to the left, one year in the circle and one year at the top of the hill. Mr. Beal asked Mr. Daigle to describe a typical site. Mr. Daigle answered a small circle of stone for a fireplace, trees around it; and definitely small forest between the sites. Mr. Beal
asked if the sites were grassy or gravel. Mr. Daigle answered down near the bottom it was not grassy as seasonal campers would be apt to cover the area with tarps.
Mr. Beal asked Mr. Frick if from 1993 to today it was known Twin Brooks was operating more than permitted sites. Mr. Frick stated that was correct; since 1993. Mr. Beal questioned how he knew. Mr. Frick answered a letter from Ken Meyer dated May 7, 1993. Mr. Beal asked who was copied on the letter. Mr. Frick answered Mr. Day.
Mr. Beal stated I believe there is considerable failure of proof. There are three elements to be satisfied and asked Mr. Haines be allowed to speak regarding the failure to the proof; that the sites existed prior to 1968 and were used without interruption from that time and that it be demonstrated by Twin Brooks that they were not different in size and condition. The board has affidavits that describe different condition of the sites; and with that evidence the campground has not shown the three elements of continuous use, that the sites; have not changed; and there was no change in impact. Mr. Beal asked the board look close at the photos. The sites are small and apparently suitable for tents and not suitable for wide campers. Mr. Palange asked Mr. Beal if he was referring to twelve months of continuous use for the
grandfather status. Mr. Beal stated that the sites be available to use for that time. Mr. Beal noted the ordinance require regular use and do not see an exemption for seasonal use. Mr. Beal noted at the last meeting many public members testified and they were upset and angry over the changes that have taken place there. In regards to the fill issues; the DEP’s review was quite limited. They looked only at the wet land area and the shore land. The DEP did not study the other area where fill was brought in, did not differentiate between old and new fill, and did not address the addition into the wooded area. Abutters have observed the cutting of the wood area as shown in affidavits submitted and Mr. Foster identified the cuttings were not permitted. Witnesses with no stake in this matter have submitted affidavits. The memories of those testifying tonight do not speak to the sites being in the same condition today. It is only the sites that were created anew that are of concern
to the appellant.
Mr. Beal stated the day after your hearing in May a new trailer and a new utility hook up was brought onto the site in the area that is prohibited and in the area that is under your review. Last weekend tents were brought in an area that is not permitted and that is the evidence we wish to submit.
Gerry Haines provided a synopsis of events. Mr. Haines stated there were four notices of violations related to expansion of the campground, there is a history of unlawful expansion that the Town never approved, and there was not an application to expand beyond 25 sites. Mr. Haines showed a photo of a trailer near a fence that appeared the day after the last ZBA hearing and also showed a utility drop that was not present during the site walk. Mr. Haines stated; the trailer was gone when Kinderly Hodgdon was there. Mr. Haines also showed pictures taken last weekend of tent sites and pointed out the tents were not there during the site walk. Mr. Haines stated a question was asked at the site walk and were told there were 41 camp sites. Mr. Haines showed photos of tents and counted seven tents in one photo. Mr. Haines
stated looking at the trailer and at the tent sites show the distinction between 1972 and 1993. Mr. Haines; showed aerial photos and showed site plan submitted to the town and DHS that identified sites as future sites. A May 25 2006 submittal signed by Andrea Mulroney certified that all the information is correct. Al Frick certifies his submittal to the State was an accurate site plan as it exists today. The configuration to the water has been changed and reference to future sites has been removed. Mr. Haines showed slides with property line set back and lakefront set backs overlaid onto the site plan to show the number of sites impacted. Mr. Haines stated the thirteen affidavits filed with first hand observations from individuals showed series of violations and asked that the Board look at the matter as a matter of compliance
Tim Hanley, an excavating contractor questioned why Mr. Haines was taking pictures and stated he is over there and taking pictures through the fence. Another individual stated he was a seasonal camper and the first time he camped there it was close to the water and how Mr. Haines is getting the pictures. Lynn Hall questioned if Mr. Haines investigated the property he purchased and asked if this was brought on because he wanted to purchase more property from the campground so he would have more privacy.
Kinderly Hodgdon, Code Enforcement Officer, reported she had worked with Mr. Hill prior to her decision and they had gone over everything. Ms. Hodgdon noted DEP and the Town issues are separate. Mike Morse of DEP has no shore land zone issue and will not open a case. He did write a letter regarding the setback on a wetland and he states the setback begins at normal high water line and there is no different measurement set back for the wet land.. Chapter 403 land use; Planning Board approval, the illegal expansion of sites 43-55 do need Planning Board approval and it is currently in front of the Planning Board. Another issue is if Cliff Foster during their timber harvesting filed the correct paper work and that is part of the expansion and is part of the Planning Board review. On the site walk, believed it was
lot 7, I and another had measured the 100 foot set back and it came just to the edge of the campground. There is no camper within 100 feet of the shore land at the date of the site walk. The last issue is the grandfathered lot and this was difficult, Ms. Hodgdon noted there is a lack of information going back; during the review of all the aerial photos with DEP and after in the office I do not feel there is enough substantial evidence in aerial photos that they are not grandfathered understanding the lack of proof and understanding when starting a campground you would start at the water.
Mr. Hill clarified his role here is to answer questions. The decision is Ms Hodgdon’s and it is the Board’s decision. Mr. Coolidge questioned if the decision is whether in violation at the time of the appeal or currently. Mr. Hill answered at the time of Ms. Hodgdon’s notice of evidence; was the notice of violation accurate and were there more violations at that time. If later complaints are made it would go to a similar process.
Mr. Coolidge questioned if they have admitted there were violation. Ms. Hodgdon replied yes, and they have relocated sites 49 to 55. Mr. Watson questioned if Twin Brooks has addressed all of the violations from last month from her violation letter. Ms. Hodgdon replied regarding minimum setback, yes, those lots down below I feel are grandfather; Planning Board approval; it is currently in the Planning Board so they have been doing that since day one and that would take care of the illegal expansion; and lots 49 thru 55 have been relocated.
Mr. Hill noted the board’s role is to address and make findings of fact and conclusion as to Mr. Haines administrative and suggested if other rebuttal or questions or summations and then take under advisement; whether tonight or later; if discussion is closed tonight, the next meeting would be discussion among bard members. Mr. Coolidge noted he would like more time to review evidence admitted this evening. Mr. Palange noted it would help if in the future material was provided ahead of time and did not feel it would be fair to make a decision without time to review.
Priscilla Carl of Naples regarding some of the photos on the tent sites Mr. Haines showed; there is one site and there are no rules on how many tents may be on one site. The reason I now that is I use to own a campground.
Ruth Foster of Gray asked to talk about Twin Brooks; the effect this has had on Twin Brooks and the local campers and our family. Our family has camped there for 45 years. Due to the restraints put on Twin Brooks we have been put in a difficult position as we are having a 100 year birthday for my dad. Andrea has worked to be in compliance. For the approximately 80 or more people would be attending our celebrations; we have found accommodations out of town. In the past our family has patronized local stores during our one week and other campers who have had to cancel their reservations would also have patronized these businesses. I believe all people running a business should be in compliance and also believe the rules should be applied fairly; speaking to those who bring sand in the middle of the night;
Carol Ann Doucette; President of the lake association; noted the reason the campground is here is because of the lake and what is not spoken of is how the violations have reduced the value of the lake; that is the part the Little Sebago Lake Association is concerned with; that is compliance and the precedents being set. You hear people saying if they can do that, why can’t I. The water is fragile and the insults from the violations are making it worse
Gary Foster, former Town Council Chair noted the lake under the great pond acts is a great pond meaning anyone can use it. A short time ago the Little Sebago Lake Association came to the town and asked for funds to help with milfoil and stressed it was everyone’s lake. It now seems to have changed. Kinderly Hodgdon is our CEO and she is in charge of enforcing our ordinances. These are to be resolved to the satisfaction of our CEO, and if she is satisfied that should be enough.
Frank Vorlicki noted the issues are the violations; I know how these people operated, we will take our chances and pay the fine. Have you ever seen a cut tree put back; are these correct or not. I think the key word here is violations. As a property owner I am entitled to protection from violations.
Pam Wilkinson, Gray resident stated she felt there is some misconceptions that the lake is only for those around the lake. We work hard for those who use the boat launch so they may use the lake. The conception that we do not want any business around the lake or in Gray is false. We are asking that they have to come to the town first to get the permits, to go to the DEP, to come to the CEO before they do the work. The message needs to go to everyone or this lake will not survive as the precedent has been set. The issue is to make sure violations do not happen and that is the message.
Cal Cutter, Gray resident; stated he heard Mr. Foster state near the end that he thought the decision of the CEO regarding violations were made and they have been removed should be paramount in the board’s decision. Immediately after that I heard you state you agreed. It is your decision whether Mr. Haines wins or loses his appeal. Mr. Watson noted that was correct.
Andy Upham, Town Councilor noted the board may adjourn to a time certain. The time does not have to be another month, the board has already given public notice and may at it’s discretion table this for another week. Mr. Hill noted that was correct.
Mr. Lowry noted we have not come in claiming that we are perfect we have had a couple of issues and we are tying to work with them and get them resolved. We are tying to come into compliance. We think also we have presented substantial evidence to show that the sites are on the plan and the sites are grandfathered. Mr. Beal has made the argument that they have to be in use continuously for twelve months. The argument that we have somehow lost the grandfather status is incorrect. Evidence regarding set backs from wetlands, I believe it has been shown that the correct setback is the high water mark on the lake. There is no question that this has hurt the business and we are anxious to resolve these issues and move forward. One fact to be clarified, Mr. Austin is not saying that Mr. Haines has done anything in violation
of the ordinance. The sand fill occurred prior to Mr. Haines’ ownership and we are not making any such claim. All of the sites in questions go back to the 60’s and I believe we have demonstrated that and ask the board to set a deadline to submit one final letter if the Board is not gong to consider tonight.
Mr. Beal noted the issues the board faces are fraught with emotions, as you will recall the room was filled at the last meeting with people upset with the campground and the violations. It is not the board’s role to simply defer to the CEO; the ordinances are set by the council and set you to consider the evidence presented. You have 13 affidavits from long-term residents on the lake that swear that the conditions on the ground are substantially different than a few years ago. There has been clear cutting, fill has been brought in, camp sites added. The CEO has misstated the campgrounds burden of proof that those sites within the setbacks were there prior to 1968, have been in continuous use, are in similar, use and character, and similar impact. The underlying issues of the regulations are to protect the
community and protect the lake. Mr. Beal asked the board review the photos that show the RVs lined up to the fence line, and to consider the violations already found by town staff. Paul White found last year unlawful expansion and unlawful fill. The campground has admitted to operating 53 sites where the town has only authorized 25. Mr. Beal asked the board to carefully apply the regulations and affect their purpose to protect the community, lake and those that enjoy the lake
Ms. Wood noted the meeting is scheduled in one month. Mr. Hill suggested as a lot a information has been presented tonight it would be fair to take some time to adjourn to a time certain and give both parties an opportunity to present one more letter. Mr. Palange asked that they set a date for them to get the last material in. Ms. Wood noted as this is a public facility it was not certain when the facility would be available. Mr. Hill suggested the board may want to give the parties two weeks and have the meeting on July 25th, and then we know the building is available. Mr. Lowry and Mr. Beal agreed. Mr. Watson noted everything to be received from both parties by July 11th. . Mr. Hill noted that was correct, submission by July 11th and board deliberations on July
25th.
Ms. Wood questioned if there would be public discussion at the next meeting. Mr. Hill noted the public comment portion has been closed but if there are any questions for the parties to help with the board’s deliberations the board may question the parties, but the deliberations have to be in a public format
Adjournment
Barry Watson moved to adjourn at 9:31 p.m. Kathy Wood seconded
5-Yes
Meeting adjourned at 9:31 p.m.
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