CHINA — The Planning Board on Tuesday postponed a decision on whether to allow a barn on Neck Road to be converted into a commercial wedding venue after an appeal was filed in court.
The Board of Appeals had remanded the proposal back to the Planning Board after it originally was denied. The property’s abutters now have filed an appeal of the appeals board decision in Kennebec County Superior Court, delaying any action on the proposal.
The Planning Board voted 2-1 to postpone any decision, with Milton Dudley voting against the motion, saying it was the board’s job to make a decision on the applications brought before it and that he did not want to “duck our responsibility” by tabling the issue.
However, the attorneys for the town, applicants and the property’s abutters asked that the Planning Board not take action on the issue until it is resolved in court, which could take two to eight months, or longer.
The controversial application relates to a proposal to convert Parris and Catherine Varney’s barn at 701 Neck Road into an event venue space that would be used from June through September for a total of 96 hours per year. They would hold four events per month on Fridays through Sundays, ending by 11 p.m. and keeping music within the barn, they said. The barn has a capacity to hold 150 people, and guests would use portable toilets.
The application previously failed to meet one of the 15 criteria required by the board, so the Varneys were denied a conditional use permit. The couple then took the issue to the Board of Appeals, which remanded the case back to the Planning Board. The appeals board found that there was a “lack of proper findings of fact” by the Planning Board in its decision-making process.
Now the Varneys’ neighbors are appealing the Board of Appeals’ decision. A complaint filed in court by their attorney, Matthew Manahan, of Pierce Atwood, LLP, claims that the appeals board decision followed “unlawful procedure,” was not supported by substantial evidence and was “arbitrary or capricious.”
The plaintiffs listed on the appeal are Sheri and James Wilkens, who is chairman of the Planning Board; John and Christine Deasy; Randall Downer and Judy Stone; Ronald and Sandra Kostron; Thomas and Marie Michaud; Timothy and Shannon Axelson; Frederick Montgomery; Elaine Philbrook; Jeanette Smith; Kenneth and Sally Vlodek; and Natale and Karene Tripodi.
The Planning Board originally voted on Oct. 25 that criterion five, which concerns whether the proposed use of the property will have a “significant detrimental effect” on the enjoyment of abutting properties as a result of noise, odor or other reasons, had not been met. According to the minutes of a public hearing on Oct. 11, a number of residents who live near the property were concerned about the potential noise and disturbance a commercial venue would add to the area, as well as the potential traffic hazards it would create.
The board then voted on a motion that the proposal failed because it didn’t meet this criteria, 2-2, with James Wilkens abstaining.
However, the Varneys appealed the decision, saying that the denial was a misinterpretation of the ordinance. The appeal said that China doesn’t have a clear ordinance regarding noise and the Planning Board doesn’t have a standard to measure potential noise against.
According to the minutes on the appeals board meeting on Dec. 15, Matt Evans, the Varneys’ attorney, said the Planning Board should listen to the public but “could not make a decision based on what the public has to say.” Rather, it should base it on evidence and information on the record, such as the sound study conducted at the barn, he said. Evans also said that criterion five is subjective, which is “unlawful” under the Maine Constitution.
During that meeting, a number of abutters noted that they were able to speak at only one of the Planning Board meetings. After the Varneys introduced the information from the study, the abutters were not given another chance to speak and so were not able to argue against the information.
Ultimately, the appeals board remanded the proposal back to the Planning Board, citing a lack of findings of fact, which is a summary of facts that include basic information about the project and evidence submitted by the applicants and others. The vote was unanimous, with Chairman Spencer Aitel abstaining.
Appeals board member Virginia Davis said during the meeting that the October denial letter by itself is without a “multitude of findings.” She added that she was “extremely troubled” by the Planning Board’s process, specifically that the applicant was able to provide more information but the abutters weren’t allowed to refute it.
Madeline St. Amour — 861-9239