spboa 20250721 - South portland Board of Appeals

spboa 20250721 - South portland Board of Appeals - July 21 2025

Updated about 1 month ago

spboa 20250721 - South portland Board of Appeals - July 21 2025

Chapters

Call to Order (00:05:05)
The Board of Appeals meeting is called to order and the public proceeding is explained.

The South Portland Board of Appeals meeting is officially called to order. It is stated that this is a public proceeding and unless the board specifically votes to go into executive session, everyone has the right to hear everything being said and to look at all exhibits offered.
Agenda Overview (00:05:28)
The agenda for the meeting is outlined, including items to be considered in order.

The chairman outlines the agenda for the evening, which includes items to be considered in a specific order. It is mentioned that the meeting was in the middle of dealing with a specific case before continuing with other agenda items as time allows.
Roman Catholic Bishop of Portland Case (00:06:03)
Discussion of the case involving the Roman Catholic Bishop of Portland and Portland International Jetport.

The board is currently dealing with the case involving the Roman Catholic Bishop of Portland and the Portland International Jetport. Once the discussion is done, a vote is hoped to be reached. After this, the rest of the agenda will continue as time allows.
Board Member Absence Discussion (00:09:51)
Discussion regarding the absence of a Board of Appeals member and how to proceed.

The chairman discusses the absence of Alan Priest, a Board of Appeals member, and how this affects the proceedings. The chairman references discussions with Corporation Council about procedures for a board member missing a meeting and how to handle it.
Motion to Limit Public Comment (00:12:32)
A motion is made and passed to limit public comment to three minutes per person.

A motion is made by Mr. Schwartz to limit public comment to three minutes per person. The motion is seconded by Mr. Seer. There is no discussion, and the motion passes unanimously.
Tree Clearing and Ordinance Issues (00:17:32)
Detailed discussion on tree clearing issues related to Portland International Jetport.

The discussion covers the tree clearing activities conducted by the Portland International Jetport, the applicability of the Tree Protection Ordinance (TPO), and the potential violations of city ordinances. The city staff's position on the violations is explained in detail.
Wetland Impacts and Site Disturbance (00:25:28)
Discussion on wetland impacts and site disturbance related to the Jetport project.

The board discusses the impacts on wetlands and disturbances at the site related to the Jetport project. City staff's inspections and findings about the disturbed areas and wetland delineations are presented, along with the need for compliance with permits.
Technical Presentation and Evidence (00:33:06)
Code Enforcement Officer presents technical evidence related to the site disturbance.

Nick Rashard, the Code Enforcement Officer, presents technical evidence, including photos and videos, to document the situation at the site. The evidence shows the extent of soil disturbance, tree clearing, and stumping activities conducted at the location.
Presentation of Site Videos and Images (00:38:11)
A visual presentation was given showing site conditions, tree canopy, and equipment operation.

The meeting included a presentation of videos and images displaying the site, tree canopy, and equipment operations such as the fellow buncher. The presenter pointed out various features using a laser pointer and addressed technical difficulties with playing the videos.
Submission of Documents and Evidence (00:41:32)
Discussion on the submission of a memo, letter, and colored map as part of the evidence.

The meeting addressed the submission of a memo dated with the entry of appearance of attorney Paul Driscoll and a colored map. The presenter requested these documents be included as part of the evidence and record of the case.
Planning Director Remarks on Tree Removal (00:43:42)
Planning Director discusses tree removal and its implications on planning board decisions.

The Planning Director, Me Land of Ida, discussed the implications of tree removal on planning board decisions. He highlighted key issues related to soil disturbance, stump removal, and the procedures that were not followed, as well as the impact on planning board jurisdiction.
Chronology and Site Visit Details (00:47:03)
Review of the timeline and details of site visits, including interactions with Stantec and arborists.

The meeting reviewed the timeline of events, including pre-application and formal application processes, site visits with Stantec and city arborists, and meetings to assess the extent of issues and next steps for mitigation and remediation.
Analysis of Project Permits and Violations (00:50:04)
Discussion on project permits, planning board's role, and violations identified.

The discussion focused on the permits involved in the project, the planning board's role, and the violations identified, such as soil disturbance and the removal of stumps that should have been left in place. The importance of having required permits from other agencies before planning board action was also emphasized.
Tree Ordinance and Mitigation Strategies (00:55:03)
Explanation of the tree ordinance and preferred mitigation strategies for tree removal.

The meeting covered the city's tree ordinance and the preferred mitigation strategies for tree removal, including onsite replanting and offsite alternatives. The sequence of mitigation options was discussed, emphasizing the importance of rebuilding the tree canopy and following conservation-oriented processes.
Violation Details and Planning Board Scope (01:00:59)
Detailed explanation of violations concerning tree removal and planning board's jurisdiction.

The discussion provided a detailed explanation of the violations related to the tree removal activities, including the planning board's scope of review, the importance of non-disturbance of soil, and the jurisdictional limitations that existed due to the absence of a tree ordinance at the time.
Site Disturbance and Common Scheme of Action (01:06:00)
Discussion on site disturbance as a common scheme of action affecting planning jurisdiction.

The meeting addressed the concept of site disturbance as a common scheme of action that affects planning jurisdiction. It was noted that tree removal and soil disturbance across multiple parcels were treated as a singular project, impacting the planning board's review scope.
Tree Ordinance Application Discussion (01:07:20)
Discussion on whether the tree ordinance was applied retroactively and the need for mitigation for tree removal.

The city addressed concerns about the retroactive application of the tree ordinance, emphasizing that there was no intention to apply laws retroactively. There was a discussion on the failure to secure appropriate approvals for tree removal and the need for mitigation measures. The planning board's role and the necessity for applicants to comply with existing conditions were also highlighted.
Code Enforcement and Stop Work Orders (01:08:07)
The code enforcement officer's letter to the jet port and the conditions for tree removal were discussed.

The code enforcement officer issued a letter to the jet port concerning tree removal, which was subject to a stop work order. Specific trees that could not be removed were identified, and the conditions for removal, including the use of chainsaws, were detailed. The tree ordinance's exemption and mitigation processes were explained.
Project Scope Modifications (01:09:05)
The importance of discussing project scope changes with the city before implementation was emphasized.

Fundamental modifications to the project scope must be discussed with the city. Changes in project scope, such as tree removal, require assessment to determine if ordinance applications are needed. The example of changing a building's exterior color was given to illustrate when such discussions are not necessary.
Planning Board Condition Compliance (01:10:11)
Compliance with planning board conditions regarding project scope changes was reviewed.

The planning board requires that any change in project scope must be reported and assessed. Failure to comply with these conditions was noted, particularly in relation to tree removal and changes in project scope that were not disclosed to the city.
Wetland Delineation and Regulatory Compliance (01:10:31)
Discussion on wetland delineation updates and compliance with regulatory agencies.

The discussion focused on updates to wetland delineation and compliance with regulatory agencies such as the Army Corps and DEP. It was noted that new wetland delineations were accepted by these agencies for after-the-fact permits, and the city's wetland ordinance requirements were outlined.
FAA Guidelines and Tree Removal (01:11:11)
Discussion on the applicability of FAA guidelines to tree removal and the necessity for compliance.

The applicability of FAA guidelines to the tree removal process was questioned. The need to determine whether trees posed a safety risk and required removal under FAA standards was discussed. The process for securing easements and adopting zoning to prevent obstructions was also mentioned.
Pre-construction Meetings and Compliance (01:12:39)
The necessity of pre-construction meetings and compliance with planning board regulations was emphasized.

Pre-construction meetings are crucial to ensure compliance with planning board regulations, particularly regarding erosion control. The absence of the property owner and contractor from these meetings was highlighted as a significant issue. The failure to hold these meetings resulted in non-compliance with regulations.
Army Corps of Engineers and Permit Issues (01:13:21)
Issues with Army Corps of Engineers permits and the need for communication were discussed.

The process for obtaining Army Corps of Engineers permits and the necessary communication to update them with changes in circumstances was discussed. The lack of communication led to discrepancies in permit validity and compliance with city regulations.
Discussions on Safety and Ordinance Compliance (01:14:06)
Discussion focused on ensuring safety and compliance with tree protection and removal standards.

The importance of complying with tree protection ordinances and ensuring safety was highlighted. The need for applicants to disclose the impacts of changes and to seek approvals for tree removal was stressed.
Discussion on Tree Removal and Mitigation (01:35:37)
The board discusses the unauthorized tree removal at the jet port, its implications, and potential mitigation strategies.

The meeting focused on the tree removal conducted by the jet port, which was done without prior approval, leading to a violation of local ordinances. The board examined the height and canopy studies, FAA regulations, and the failure to follow proper channels for mitigation. The conversation included the city's stance on the tree ordinance, the need for an arborist study, and potential repercussions. The board debated whether the actions were compliant with federal regulations and what the appropriate next steps would be to address the violation and mitigate impacts.
Discussion on Tree Protection Ordinance (02:05:15)
Discussion on how tree protection ordinances and mitigation requirements apply to certain exemptions and thresholds.

The meeting addressed the triggering of mitigation under tree protection ordinances, focusing on what is exempt at certain thresholds and how appeals and documentation relate to property, such as the Dawson Street property, with different height thresholds.
Clarification of FAA Requirements (02:06:11)
Clarification of FAA requirements in relation to Dawson Street property and the height thresholds concerning obstructions.

The clerk clarifies the relevance of TSS thresholds for the Dawson Street property, noting that the FAA requires documentation to verify obstructions and compliance with thresholds recognized in conversations. This includes the responsibility of the appellant to provide necessary documents to staff.
Rebuttal by Applicants (02:16:32)
Applicants provided rebuttal focusing on tree protection ordinance violations and FAA requirements for obstruction removal.

The applicants discussed alleged violations of the tree protection ordinance, emphasizing FAA requirements for obstruction removal due to federal grant assurances and certification regulations. They argued that federal law preempts local ordinances in matters of aviation safety.
Board Questions and Clarifications (02:32:26)
Board members asked questions regarding FAA notices, agreements related to tree clearing, and management of obstructions on private parcels.

Board members inquired about FAA notices of violations, agreements with landowners for clearing land, and the management of obstructions on private parcels without easements. The discussion highlighted the complexities of federal, state, and local interactions in airport management.
Discussion on Permit Validity and Tree Clearing Concerns (02:47:52)
The city and the jetport discuss the validity of permits related to tree clearing activities, addressing concerns about whether activities were conducted under valid permits and the implications of tree clearing standards.

The meeting discusses the city's inquiry into the validity of permits associated with tree clearing on the Broadway parcel and Dawson Street. Concerns were raised regarding whether the city provided a basis for the permits' validity, and the jetport's activities regarding tree and stump removal, storm water management, and wetland considerations. The discussion also covers the lack of specific tree clearing standards at the time and whether existing site plan ordinances applied to the tree clearing activities.
Presentation of Evidence and Rebuttal by Jetport and Diocese (02:55:12)
The jetport and diocese representatives present their rebuttal and argument regarding the tree clearing, emphasizing the validity of permits and responding to city claims about site activity and tree removal.

Representatives from the jetport and the Catholic diocese provide their rebuttal to the city's claims regarding tree clearing activities on Dawson Street. The jetport emphasizes that their activities were conducted under valid permits and within the guidelines provided by the FAA and other authorities. They address the issue of stump removal and clarify that the clearing was done with safety in mind, in accordance with permit guidelines. The diocese clarifies its role, stating it did not conduct the clearing but only granted access to its property, and the jetport was responsible for execution. They rebuke claims of ulterior motives or knowledge of permit limitations.
City's Response and Clarifications on Permitting and Access (03:05:07)
The city clarifies its position on the permitting process and access routes for tree clearing, highlighting concerns about potential violations and the need for proper communication between parties.

During this segment, city representatives respond to the points raised by the jetport and the diocese. They emphasize the importance of adhering to the permitting process and communicating any changes in access routes or scope of work. The city highlights that previous tree clearings used different access points and that any changes to the agreed-upon routes should have been communicated and approved to avoid violations. They also discuss potential impacts on local infrastructure due to heavy machinery usage.
Closing Arguments and Next Steps (03:11:02)
The meeting concludes with closing arguments from all parties, discussing the potential for future appeals and clarifying legal positions regarding the tree clearing and permit validity issues.

In the closing segment of the meeting, all parties present their final arguments. The jetport and diocese reiterate their positions on the validity of the permits and the appropriateness of their actions. The city reiterates its concerns about communication and adherence to procedural requirements. Discussion also includes mention of a US District Court case to support the jetport's legal position, and the meeting ends with a note on the potential for further legal action or appeals to resolve the disputes.
Public Comment Period (03:20:48)
The public comment period allowed citizens to express their concerns about the recent actions, particularly focusing on environmental violations and their impact on the community.

During the public comment period, several members of the public expressed their concerns regarding the environmental impact of recent activities in their neighborhood. Key concerns included the clearing of trees, changes to the ecosystem, increased noise from airplanes, and the perceived negligence of local authorities. Many speakers urged the board to conduct a site visit to witness the impact firsthand and to hold responsible parties accountable for the violations.
Review of Written Public Comments (03:43:00)
The board reviewed written public comments that were submitted in opposition to the actions taken on the properties, supporting the finding of violations.

The board reviewed written comments submitted by the public regarding the actions taken on the properties in question. All written comments expressed opposition to the actions and supported the finding of violations. The comments were consistent with the concerns raised during the public comment period.
Discussion on Site Visit (03:48:01)
The board discussed the possibility of conducting a site visit to better understand the impact of the actions taken. The motion for a site visit was ultimately not approved.

The board discussed whether to conduct a site visit to assess the impact of the actions taken on the properties. While some board members considered the site visit unnecessary due to the clarity of the photos and videos provided, others noted that it could provide additional context. Ultimately, the motion for a site visit did not pass, as board members felt they had sufficient information from the visual evidence and public comments.
Discussion of Site Visit Motion (03:53:21)
The board discussed a motion for a site visit, which did not pass as all members raised their hands not in favor.

The meeting started with a discussion about whether to conduct a site visit. A motion was made, but it did not pass since all board members raised their hands indicating they were not in favor of the site visit. The chair noted that this decision does not reflect the board's view on the public impact of the issue at hand.
Introduction to Violation Appeals (03:53:52)
The board began discussing how to approach the unusual appeal regarding violations, focusing on notices of violation.

The board moved on to discuss the violations appeal process. Conflict counsel suggested starting with each notice of violation and making preliminary findings. The board was reminded of the previous meeting where they were not persuaded by the argument that the property owner should be precluded from liability. The aim was to address each notice of violation and apply conclusions preliminarily to both the jet port and the diocese before making a formal vote.
Discussion on Notice of Violation (03:54:19)
The board discussed handling violations related to both the jet port and the diocese together, but voting separately.

The board engaged in a discussion on how to handle the notices of violation. It was suggested to discuss violations for both the jet port and the diocese at the same time since their arguments were similar, but to vote on them separately. The idea was to avoid repeating the same matters twice and to ensure a structured approach to discussing and voting on each violation.
Motion to Open Discussion on Notice of Violation (03:59:29)
A motion was made and seconded to open discussion on the notice of violation related to the jet port and the diocese.

The chair asked for a motion to open the discussion on a notice of violation involving the Roman Catholic Bishop of Portland and Portland International Jetport. A motion was made by McConnell and seconded by Seer. With the motion passed, the board opened the discussion on this particular notice of violation.
Tree Protection Ordinance Violation Discussion (04:00:15)
The board discussed the tree protection ordinance violation, focusing on exemptions and requirements.

The board began a detailed discussion about the tree protection ordinance violation. The purpose of the ordinance was explained, highlighting its aim to protect trees and wooded ecosystems. The board debated the exemptions related to tree removal for maintaining safe clearance for aircraft as required by federal law. The discussion included whether the tree removal was required under federal law and how it related to the ordinances.
Board Members' Opinions on Ordinance Interpretation (04:10:00)
Board members shared their views on interpreting the ordinance, including safety considerations and timing of permits.

Throughout the discussion, board members expressed their opinions on how the tree ordinance should be interpreted. Some members felt that the ordinance did not apply because it was enacted after the permits. Others emphasized the importance of safety and federal compliance, mentioning that any equitable arguments regarding vested rights would be determined by a court and not the board.
Final Deliberation on Tree Ordinance and Federal Law (04:16:00)
The board deliberated on whether the tree removal was required by federal law, discussing potential lines to draw for compliance.

The board continued to deliberate on whether the tree removal was mandated by federal law, which would exempt it from the tree protection ordinance. Members discussed the evidence and tried to determine if any federal mandates applied. They considered the glide slope surface (GQS) as a potential measure for determining compliance, aiming to set a clear precedent for future reference.
Discussion on Tree Cutting Compliance with Federal Law (04:28:23)
The board discussed whether tree cutting activities were required by federal law, considering airport regulations and local ordinances.

The board engaged in a detailed discussion regarding the requirement of tree cutting below certain height limits as per federal law. The discussion focused on the interpretation of federal regulations, airport custom practices, and local ordinances. Members debated the specifics of which trees were exempt and whether any violations occurred under federal law. They also considered the burden of proof required to establish compliance or violation.
Motion to Take a Recess (04:45:41)
A motion was proposed and accepted to take a brief recess to allow further discussions among attorneys.

A board member proposed a motion to take a recess to allow the attorneys representing different parties to discuss potential resolutions to ongoing issues. The motion was accepted, and the board went into a brief recess to facilitate these discussions.
Resolution and Tabling of Discussions (04:54:49)
Parties discussed tabling the matter to allow time for negotiation of a potential agreement to resolve violations.

After returning from recess, representatives from the involved parties discussed the possibility of tabling the current agenda item to allow them time to negotiate a potential agreement that could resolve some or all of the violations under discussion. They agreed to return with the results of these negotiations at the next scheduled meeting.
Decision on Tabling and Future Meeting Plans (05:02:02)
The board agreed to table the discussion until the next regularly scheduled meeting in September.

The board members discussed and voted on the proposal to table the current agenda item to the next meeting in September. They agreed that this would allow the parties time to negotiate and potentially resolve the issues, thereby avoiding extended appeals and costs.
Adjournment (05:03:03)
The meeting was adjourned after tabling the remaining agenda items until September.

Following the decision to table the current discussions and agenda items, the meeting was adjourned. The board agreed to reconvene in September to continue with any unresolved matters and to hear the results of the negotiations between the parties involved.

Board of Appeals (7 Videos)

Updated about 1 month ago

Board of Appeals