Schiavi wins appellate appeal

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OXFORD — The Board of Appeals has tentatively denied local businessman John Palmer’s appellate appeal of the Planning Board’s Feb. 23 decision to approve a site plan application for Coastline Homes of Oxford.

In a 3-0 vote, the board agreed on Wednesday, April 12, that the Planning Board’s decision to approve Coastline Homes’s site plan application for a mobile home sales center and sales lot at 488 Main St. on Route 26, was proper, but also agreed to send it back to that board to fix a clerical error.

The Planning Board must sign the site plan as required in the Zoning Ordinance. The board signed off only on the application. Once the Planning Board signs the plan, it will go back to the Board of Appeals for final approval.

Palmer, owner of Alternative Modular Homes and Palmer Realty, has stated he will appeal the decision in Superior Court.

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“If I don’t get relief here, I have to go to court,” Palmer told the Appeals Board. Palmer, who said site development of the new business caused runoff onto his property. Palmer has 45 days from the Appeals Board approval to file and appeal in Superior Court.

Three members of the five-member Appeals Board made the decision after approximately 90 minutes of presentations by Palmer and Preti Flaherty attorney Stephen Langsdorf representing John Schiavi, owner of Coastline Homes and Schiavi Custom Builders.

Palmer, who is also the chairman of the Appeals Board, recused himself from the appellate hearing in order to bring his appeal before the board including Clyde Holt, new member Jocelyn Bradbury and acting chairman Joel Haslett. Member Kathleen Jackson Dillingham did not attend the meeting.

About 15 people, including residents, town officials and abutters appeared at the hearing.

Relief Sought

Palmer emphasized that he has no objection to the new business and in fact welcomes the effort to further promote the manufactured and modular housing industry that exists in Oxford. However, he made it clear the Planning Board failed to address the surface water runoff that he claims the new business is causing on his property.

“The whole reason I’m here is that lot. I believe if it [Coastline Homes] had been subjected to a site plan review [the development] wouldn’t be adversely affecting my property. That’s the whole reason I’m here,” Palmer said.

The 30-plus-year-old Alternative Modular Homes at 470 Main Street (Route 26) in the Welchville section of town and Coastline Homes are separated by an empty lot that used to be the site of a church and later antiques business and a residence.

Palmer alleged in his administrative appeal that the Planning Board failed to comply with several site plan review requirements that he believes are applicable, including adhering to performance standards and holding a public hearing.

According to the administrative appeal, Palmer claims in part that because the Planning Board failed to request additional information, adverse conditions that he said affected his property were not taken into consideration. Those adverse conditions, he said, include the following:

  • mature trees on the westerly end of the lot were cut and buried.
  • the lot has been recently filled raising its elevation.
  • there was an automobile repair shop operating on the lot during prior ownership.
  • a water in a well dug when the lot was owned by a farm stand had a sheen on the surface.
  •  there is surface water run off into Palmer’s parcel with a sheen on the surface and “which has increased substantially” since the tress were curt and buried.
  •  the Planning Board did not attach “reasonable” conditions to ensure conformity with the standards and criteria of the ordinance.

Appeals Process

Although Palmer tried to submit exhibits into evidence, the majority were challenged by Attorney Langsdorf on the grounds that it would be new evidence.

In an appellate hearing, no new testimony can be heard. According to the Zoning Ordinance, the Appeals Board may reverse the decision of the Planning Board only if it finds that the decision “was contrary to the specific provisions of the ordinance or contrary to the facts presented to the planning Board.”

The Appeals Board may only review the record of the proceedings that were before the Planning Board. While the Appeals Board may receive and consider written and oral arguments that can not receive or consider any evidence which was not presented at the Planning Board hearing.

Exhibits such as Planning Board minutes that had no hand writing or other marks on it, a copy of the site plan review application and a few other exhibits were allowed to be included in the minutes of the appellate hearing with no objection from Langsdorf, but other items such as an aerial photo of the site were rejected.

If the Appeals Board believed the record of the Planning Board proceedings was deemed inadequate it could have remanded it back to the Planning Board for further fact-finding and a new hearing.

But in the end, the Appeals Board members said they believed the Planning Board’s approval was correct.

“Legally I don’t see that we have any course other than sending it back for clerical corrections,” said Appeals Board member Holt.

ldixon@sunmediagroup.net

WELCOME — Alternative Modular Home owner John Palmer shakes hands with Attorney Stephen Langsdorf of the Preti Flaherty firm in Augusta. Langsdorf represented Scott Stone of Schiavi Custom Builders at the Wednesday, April 12 Appeals Board hearing.

REVIEW — Board of Appeals members, from left, Clyde Holt, Jocelyn Bradbury, who was appointed by selectmen on April 6, and Joel Haslett, who served as acting chairman, review paper work at the appellate hearing. Member Kathleen Jackson Dillingham did not attend the hearing.

GREETINGS — Preti Flaherty Stephen Langsdorf shakes hands with Code Enforcement Officer Joelle Corey-Whitman following the appellate hearing on Wednesday, April 12, while John and Mary Anna Palmer, left at the table, collect their paperwork.

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