DRESDEN — The appeals board is continuing work toward reaching a decision on whether the town’s code enforcement officer erred in issuing a stop-work order in July over a controversial gravel pit.
As the four members of the Board of Appeals on Tuesday worked through the evidence submitted to date, they also outlined what other information might be required in upcoming meetings, potentially extending into the spring.
Gravel pit owner Heather Beasley and her attorney, Ed Dardis, filed an appeal in September challenging that stop-work order on the Ballard-Milligan Gravel Corp., which followed a notice of violation issued in May.
Code Enforcement Officer James Valley had found that gravel was being dug within 150 feet of the property’s boundary, contrary to the setbacks identified in the town’s Land Use and Development Ordinance. The notice of violation also required a remediation plan to show how Beasley would come into compliance with the ordinance.
At the end of July, Valley issued a stop-work order, citing Beasley’s failure to file a remediation plan.
Beasley’s challenge is based on three grounds.
The first is that the stop-work order was issued under Dresden’s Land Use and Development Ordinance, which was last updated in 2011. Because the gravel pit has been in operation for decades before that, and decades before any regulation was imposed on gravel pits, they contend it is grandfathered and therefore exempt from those regulations.
The second is the setbacks cited don’t apply because Beasley maintains that no road or right-of-way exists and that despite requests, the town has to date offered no evidence establishing any legal interest of its own in Ballard Road.
Heather Beasley, president of the Ballard-Milligan Gravel Corp., seen last October at the entrance to the gravel pit off Cedar Grove Road. The town of Dresden issued a stop-work order on the pit in 2019, a decision Beasley is appealing.
The third is that Dresden’s code enforcement officer and selectmen improperly rejected Beasley’s proposed remediation plan, submitted after town officials issued the notice of violation on the gravel business, and they gave her no written notice about why the plan was not considered satisfactory.
The Board of Appeals, which is short one member following the death of longtime chairman Joseph Atkinson, has been meeting on the issue since the end of October.
Chairman Steve Collemer recapped the elements of the appeal and outlined the points that need to be established in the board’s finding of facts.
“I have a thirst for progress, and I am not getting quenched,” he said.
One of the issues identified Tuesday is whether the stop-work order applies to all work on the property or only the gravel pit that was deemed to be encroaching into the setback.
“There seems to be a bit of confusion about whether Heather is allowed to work anywhere else in the pit,” board member Kevin Campbell said. “The stop-work order says all operations at the gravel pit must stop until the violation has been corrected. There’s been other documentation here that it was originally just in the area of the violation. Is that an error or is that how it’s supposed to be?”
Campbell said he also wanted to know whether that included halting any required erosion control.
He also wanted to probe the nature of the gravel pit’s grandfathered status.
Grandfathering is a type of nonconforming use. Under the ordinance, nonconforming uses are allowed, but they can’t be expanded, he said.
“I wish there was a lot more information in our town ordinance that clarified and stipulated the grandfathered use,” Collemer said.
“I think it’s very clear,” Campbell said. “It says expansions of nonconforming uses are prohibited.”
In some cases, he added the nonconforming use may have to obtain a permit from the Planning Board to be expanded in the case of structures existing as of the effective date of the ordinance or later amendment that would create a nonconforming use.
Collemer suggested that board members do research on the issue before they convene again.
The Board of Appeals will consider the issue of Ballard Road as part of its work in this appeal, as well as the remediation plan, at a future meeting.
Even as the board considers the issue of Ballard Road, the Board of Selectmen has decided to take legal action to determine that Ballard Road is a town road. Following an executive session at the Jan. 21 Board of Selectmen meeting, the board voted unanimously to start the process.
Collemer said Tuesday that’s not expected to affect the appeals board’s determination in Beasley’s appeal.
At the close of the two-hour session, Collemer said selectmen continue to work to find a candidate to serve as the board’s fifth member.
“This situation with the quorum is scaring the heck out of me,” he said, referring to the minimum number of board members required to attend for a hearing to be held. “Three out of four of us have commitments for next month.”
He’d like to see alternates appointed who could step up and serve in the event that a board member cannot attend.
He noted that as chairman, he lacks the legal knowledge that former chairmen have had, and that puts him at a disadvantage. While he has conferred with both the Maine Municipal Association and the town’s attorney on procedural matters, he said in the future, whoever serves as the board chairman should have that knowledge.
The next meeting date has been set for Feb. 27, the meeting after that may not take place until the end of March, due to the schedules of the board members.
Send questions/comments to the editors.
