To the Editor:
I am writing this letter to obtain a degree of personal closure regarding my participation at the public hearing of the Bar Harbor Appeals Board on
Tuesday, April 9 (Elizabeth Mills vs. Ocean Properties/Bar Harbor
Planning Board). The planning board voted to support Ocean Properties’ proposal for, in my opinion, a commercial development in a “Bar Harbor Residential District.” The appeals board voted to deny the appeal on “procedural” grounds.
I attempted to speak at this public hearing twice, once on the procedural question and again on questions regarding expert opinion/advice, etc. I was not allowed to complete my statement or to have my questions answered.
I had prepared for the appeal by reviewing the 13 page appeal summary and the 23 page reply. I also reread these documents a second time on the Bar Harbor web page. The procedural concerns appeared to me to be unreasonable hurdles to an appeal. There were more than sufficient reasonable grounds documented in the appeals summary to suggest the need for a fair, evenhanded discussion of the issues.
The Islander reported on the appeals board in last week’s edition, on page three. In that article the board’s chair stated that it was a “very high bar” that the appeal needed to exceed to prove that the planning board acted “clearly against” (i.e. clearly contrary to) the Land Use Ordinance. However the planning board’s own attorney, Mr. Daniel Pileggi, provided the legal counsel that “it was their [the appeals board’s] decision whether the appeal is … complete, and … a sufficient record.”
So, the board had the discretion to allow the review/appeal. They chose not to. There was no appeal. Imagine if a death row individual obtained evidence of innocence and the appeals board decided on “procedural grounds” not to allow the process of “correction of error” to proceed. The death row individual would be right … dead right.
I came to last Tuesday’s public hearing with two goals. One was to witness
a reasonable, fair, level playing field review of the merits of the written appeal. My second goal was to present my citizen’s point of view and to have some questions answered and clarified. Neither happened — no deliberation, no questions or comments allowed.
If there is a “procedural” problem anywhere, this absence of public input is one obvious example of a problem with this particular public hearing’s procedure.
The concept of a level playing field also existed in another example.
The appeals board repeated referred to the attorney for Ocean Properties as
“Andy.” The attorneys for Ms. Mills were “Mr. Steed” and “Mr. Greif.”
Indeed, on a separate issue, when attorney Arthur Greif attempted to make remarks supportive of Ms. Mill’s position, the appeals board Chair attempted to deny Mr. Greif’s participation, again on “procedural” grounds. However, in this case, the appeals board had to admit their error and they were required to permit Mr. Greif to continue to speak on Ms. Mills’ behalf.
The rebuttal, written for Ocean Properties by Mr. Hamilton, could even be read in support of the appeal. Mr. Hamilton wrote that for the appeal to be rejected, that the appeals board needs “to determine (whether) or not the planning board’s decision was clearly contrary” and also that the appeals board should defer to “all findings supported by ‘competent’ or ‘substantial’ evidence.'” This speaks to the heart of one of my unanswered and unasked questions, that regarding respect for expert opinion.
The Islander’s past reporting, previous Islander letters to the editor, and the 13-page appeal summary all document a unique fact. These records all refer to the planning board’s disregard of the expert legal opinion of Bar Harbor’s town attorney. The appeal written by Ms. Mills’ attorney itemized repeated examples where the Bar Harbor Planning Board rejected or denied the expert opinion of Bar Harbor i.e. the Bar Harbor town attorney. It was my intention to have this inconsistency and irregularity discussed and explained. There were many other issues raised by the appeal summary related to residential vs. commercial, year round domicile vs. seasonal worker, “grandfathering” and the interpretations of the LUO by the planning board. All these issues merited review, but the central item for me was the one of the “expert opinion” of Bar Harbor’s own attorney.
To put my expert opinion concern in context: one of Mr. Hamilton’s recommendation to the appeals board (that I noted above) was the emphasis on “competent” evidence. What is more “competent” than the expert legal opinion of the town’s attorney? What could be seen as more “clearly contrary” to the rules of any interpretation of the LUO than the planning board not respecting the town’s own expert opinion. This issue alone is enough not only to question the existence of a honest, nonbiased review but also to question the rejection of the appeal on “procedural” grounds.
I am not an attorney. But I try to be a reasonable person. In college I took a required two semesters of philosophy and religion. In the 5th Century BCE, in Athens, Greece, there was a word that, in my opinion, speaks to the reasoning processes of the planning board, the appeals board and the written rebuttal by Ocean Properties. That word is sophistry.
I think that it is not unreasonable that this process be reviewed again. Not by myself, and not by Ms. Mills (who has already incurred considerable expense in her effort to contest Ocean Properties). The town of Bar Harbor should initiate a review of the Bar Harbor vs. Bar Harbor aspects of this entire process, i.e. the Bar Harbor boards vs. the Bar Harbor town attorney and the process of a Bar Harbor public meeting not allowing a Bar Harbor citizen — me — to speak and to have his or her concerns addressed reasonably.
Mr. Steed’s final statement in his summary is correct: “This application should never have been approved.” A similar statement could be made about the appeals board’s conclusions.
Walter J. Healey