MOUNT DESERT — The Planning Board is asking for legal advice after concerns were raised that a site visit last Thursday may have violated requirements for public access to the board’s proceedings.
The question is: What provisions of Maine’s Freedom of Access Act, which preserves the right for the public to be present at any meeting of a town board, apply in the case of a site visit held on private property?
The board conducted the site visit to the granite quarry owned by Harold MacQuinn, Inc. and leased by Freshwater Stone & Brickwork ahead of public hearings on an application to resume quarrying operations there.
At the site visit, attorney Ed Bearor, representing MacQuinn and Freshwater, told a reporter for the Islander that he was not allowed to take photographs. Bearor didn’t recognize the reporter and thought he might be one of the neighbors who oppose the quarrying application, he told the Islander Tuesday.
After the site visit, the Planning Board reconvened at the town office.
“We were all thrown for a loop,” said Bill Hanley, the board chairman. “We asked our counsel to come back with a written legal opinion on freedom of access, site visits, press access, if what Ed did was even within the bounds.”
On Friday, resident Janet Clifford wrote to the Planning Board and other town officials to call attention to “disconcerting procedures that were observed” at the site visit. These included the photography prohibition, the absence of official minutes of the meeting, new information being presented and the members of the board not staying together so everyone could hear the same information.
“This information clearly was of the type that could influence the votes of Planning Board members regarding this application. This information is now ‘lost’ in terms of analysis of a court of law (should that be required) and also lost for the purposes of public comment … The ‘opposition’ party … were not present and therefore do not know the substance of the new information presented,” she wrote.
According to a manual for planning boards published by the Maine Municipal Association, “on-site meetings [with a majority of the board present] are meetings … at which the public has a right to be present under the Maine Freedom of Access Act.”
That law also gives the public — and the press — the right to tape, film or otherwise record a meeting, but Bearor argued that those provisions do not necessarily apply to photographs of the property.
“I’ve never seen it said one way or the other when you have a site visit that means someone can come in and take photographs,” Bearor told the Islander.
A property owner has the right, he argued, to prohibit the taking of photographs of anything of proprietary value. He said there’s no presumption of a right for someone to “scoop up soil samples or do any host of things … simply because they are part of the public or it’s a public meeting.”
There’s a history of disputes over access to the property.
In 2012, a report in the Islander described the concerns of neighbors opposing the quarry operations. The story included a photo taken by the reporter of Gerald Shencavitz, one of the neighbors opposing the quarry operations, on the quarry property.
In the spring of 2014, a security camera captured images of Laurie and Gerald Shencavitz walking their dog on the quarry property. Jeff Gammelin, president of Freshwater Stone, called the police, who summonsed the Shencavitzes on a trespassing charge. The coupled pled guilty, but later changed their plea to not guilty. The charges were later dismissed in court.
At a Planning Board site visit in November 2015, Laurie Shencavitz, was ordered off the property by Gammelin. In response, the board decided to hold another site visit a few weeks later to allow the Shencavitzes to be present and participate.