CHINA — The Board of Appeals sustained an appeal filed against a decision made by the town’s code enforcement officer at a three-hour meeting Thursday night — the latest flash point in a contentious case pitting neighbor against neighbor for several months.
The decision hinged on the status of the barn as a commercial structure. The board decided that because the barn has plumbing, it was set up to be commercial structure.
The Greater Neck Road Neighborhood Association filed an administrative appeal after Paul Mitnik, the code enforcement officer, didn’t penalize a couple reportedly holding events in their renovated barn at 701 Neck Road.
Town Manager Dan L’Heureux said he is not aware of any previous administrative appeals like this one before in China’s history.
The neighborhood association includes Tom Michaud, a Planning Board member, and Sheri Wilkens, wife of James Wilkens, chairman of the Planning Board. Other members, including Sheri Wilkens, are members of other town committees as well.
The group asserted that Mitnik’s lack of action violated state and town laws regarding public assembly and fire safety.
They filed the appeal after a series of emails and calls with town officials that asked Mitnik or the town to do something about the barn, which is owned by Parris and Cathy Varney.
The appeals board ultimately found that the addition of plumbing to the barn set it up to be used as a commercial structure, which would require a permit. They sustained the appeal on this finding.
The board at first struggled with how to sustain the appeal given the language in the town’s ordinances. Most members appeared to think that the Varneys’ actions were “sketchy” and that the appeal had a basis.
“I’m just not sure where we can fit it in,” board member Dale Worster said.
“At best, it feels slippery,” board member Virginia Davis said. “It has a feeling of deliberately trying to skate the ordinance, and I find that troubling.”
Davis first made a motion that the building is a commercial structure, as the tax card says it is a “barn event center.” The motion failed, 2-3, as most members weren’t convinced that made it a commercial structure.
Board member Anthony Pileggi then made a motion for a finding of fact that as the barn was used for storage and then plumbing was put in, it is now equipped for commercial use and requires a permit. The plumbing was added by the previous owner in 1999, who had intended to turn the barn into apartments.
Davis made a friendly amendment to change commercial use to commercial structure.
The motion passed, 4-1.
A motion was made to sustain the appeal and send the issue back to the code enforcement officer, which passed, 5-0.
In an interview Friday, Mitnik said he hadn’t yet decided whether to appeal the decision to Kennebec County Superior Court.
“I’m pretty disappointed in the decision,” he said, not because of the finding, but because of how it was done. “They pretty much just ignored the definition of a commercial structure.”
Parris Varney said he thinks the board based its decision on the facts it had, but not all of them were correct.
“I feel that they went against the advice of the town attorney,” he said.
Sheri Wilkens, who spoke on behalf of the association, did not immediately return a request for comment.
This is the latest issue that involves the Varney’s barn, which began in fall 2016 when they applied for a permit to turn their barn into a commercial wedding venue.
The permit was denied after neighbors, many of them members of the association, complained about the potential detriments at a public hearing. The Varneys appealed the Planning Board’s decision, and the case was sent back to it for a lack of “proper findings of fact.”
At that time, more than 10 households appealed together the decision of the Board of Appeals to Kennebec County Superior Court, stalling the process at the town level.
The case is still ongoing, but L’Heureux said they expect a response sometime in September.
The appeals board heard the case in a full room of more than 30 people at the Town Office.
Wilkens reiterated the group’s argument that the regular use of the barn as an event space changes its use to a place of public assembly. Under state statutes and local ordinances, a place of public assembly has to meet certain standards.
The barn has been used for parties or social events for more than a decade, so Mitnik said he didn’t consider the current use to be a change. If a permit were to be enforced on the property, it should have been done back then, he said.
He also emphasized that exchange of money was important, because that is what would prompt a change of use to a commercial venue, as defined in the town ordinance.
Mitnik said the Varneys were holding the events for family and friends and were not charging money. Because money wasn’t changing hands, they weren’t violating any ordinances, he said.
“My opinion of this whole thing, it’s just a neighborhood dispute,” he said. “It has nothing to do with code enforcement.”
Wilkens listed several dates when the Varneys held events at the barn, including weddings and birthday celebrations. The association had also obtained an email circulated to staff at Vassalboro Community School which asked for $30 per person for “party money” for a retirement party at the barn.
A member of the audience, Kathy Cioppa, later said that she works at the school and the money was for food and gifts, not for the Varneys. She also spoke in support of the couple.
“I live right next door. I can hardly hear the music when they have these gatherings,” she said.
Tom Michaud, a member of the association, said the Varneys’ permit was denied because of noise.
“If they’re saying noise isn’t an issue, they’re dead wrong,” he said.
Karene Tripoldi, who said she lives at 733 Neck Road, said she moved from New Jersey to enjoy the peacefulness of Maine.
She hears the “boom, boom, boom” of the music into the night when she goes to sleep, she said, which she doesn’t think should be allowed in a residential area.
Wilkens questioned whether Mitnik had asked anyone about the money besides the owners, which he said he didn’t.
She also questioned his choice to focus on the money.
“When you focus only on the exchange of money, you are ignoring another significant portion of this, and that is public safety,” Wilkens said.
Wilkens cited her conversation with Greg Day, a supervisor in the Office of the State Fire Marshal, who said once a building like a barn reaches a certain capacity, its use changes and it requires a permit.
However, Mitnik said that the Life Safety Code, which is part of the national fire code adopted by the state, is not mandated to towns. China has yet to adopt the code, he said, and he is not registered to enforce those rules with the state.
Madeline St. Amour — 861-9239
mstamour@centralmaine.com
Twitter: @madelinestamour
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