Mike Deyling, a vice president and geologist from the Brewer firm CES Inc., presents findings to the Lamoine Appeals Board March 28. Deyling researched the potential impact of a 110-acre gravel operation on local water tables. Listening (from left) are Appeals Board members Mike Jordan, Jon Vanamringe, Hancock Senton, Jay Fowler and Constance Bender. PHOTO BY JACK DODSON

Lawyers, experts and amateurs navigate a complex relationship

LAMOINE — An Appeals Board meeting opened on March 28 with John Holt’s 30-minute testimony about water sources.

The board was hearing testimony on whether to allow Harold MacQuinn Inc.’s plan for a 110-acre gravel pit alongside Douglas Highway to move forward.

Holt has served on his town’s Planning Board for 10 years but was speaking as chairman of the board of Cold Spring Water Co., an in-town public water supply structured as a nonprofit.

Holt recused himself from the Planning Board for the MacQuinn application because of his Cold Spring connection.

After he wrapped up his testimony to the board about how a potential gravel pit operation might affect Cold Spring, Bangor lawyer Ed Bearor began a cross-examination.

“Mr. Holt, you’re not a geologist?” Bearor asked.

“No,” Holt replied.

“Or a hydrogeologist? Or a forester? Or a meteorologist?” Bearor bore down. Between each question, Holt answered in the negative.

“All right. Then all of the opinions that you offered up here this evening are your own,” Bearor prompted.

“My opinions on some of the facts that are presented,” Holt replied.

Bearor did not respond to a request for comment on this story.

The exchange underscored a key challenge facing local officials — particularly Planning Board members in small towns, nearly all of whom are volunteers and amateurs — as they navigate the complex realms of science, law and ethics as they adjudicate local matters.

In cases where money is involved (read: most of them), these local board rooms can become de facto courtrooms, where lawyers and experts make sophisticated cases for or against projects.

In the MacQuinn case, Holt has become a key figure. He was the chairman of the Planning Board during the application’s first filing in 2012. After the Planning Board rejected that plan, Bearor sued the town on behalf of MacQuinn, suggesting that Holt and two other Planning Board members were biased. Holt recused himself — though he still chairs the board for all other matters — and he now has standing in the case as a representative of Cold Spring.

But he said this kind of pressure isn’t unique to the MacQuinn application. Volunteers who serve on town boards like his often face legal pressure while trying to navigate the best course for the town.

Planning boards play key roles in towns across Maine. Ray Jones has served on Gouldsboro’s board for 19 years, and he’s been the chairman for 18.

“Planning Board is one of the integral parts of any small town — or city — because it’s about the land and how it’s used,” Jones said. “Our primary responsibility is trying to make sure our community stays in good health, preserving our community and lifestyle.”

Eric Conrad is a spokesman for the Maine Municipal Association in Augusta, an organization whose members account for all but five towns in the state. He said the first recommendation to towns when they face legal issues is to consult a local attorney.

But if they need a little more help, they can consult Maine Municipal’s six on-staff lawyers.

“That’s one of the most valuable services we provide,” Conrad said. “It’s really invaluable when you think about that kind of attorney firepower here.”

Every year, Conrad’s department, through Maine Municipal, hosts a training event for planning boards. Last year’s event was in Ellsworth.

“They talk about what your role is, what your responsibilities are, liabilities,” Conrad said. “They go over a lot of those basics … It’s not mandatory, but we obviously hold it because we think it’s important, and they’re pretty well attended.”

Conrad said when board members are faced with complex legal or science challenges their job isn’t necessarily to become experts on those topics. Instead, what they need to do is interpret where the information is coming from and make decisions for the town that uses appropriately gathered information.

So if planning board members need a data set to make a decision, for example, Conrad said they shouldn’t go gather that data themselves but can always hire someone for that purpose. Maine Municipal helps put towns in touch with various experts, mostly through advertisements that run in the organization’s magazine.

Another option for Ellsworth-area towns is to approach the Hancock County Planning Commission (HCPC). Sheri Walsh, the interim executive director of HCPC, said her organization also offers workshops.

But when it comes to helping local officials navigate complicated areas of legal issues, she said her organization will refer to others with more expertise.

“We do not wade into questions of legality,” Walsh said. “We’re not attorneys. We can’t interpret what the situation is. We can refer them to another agency, or [the Department of Environmental Protection], or things like that. But we just do not answer legal questions.”

For Andrew Hamilton, a Bangor-based lawyer who has operated in Hancock County, the issue is straightforward: the ordinances of each town should govern how planning boards make their decisions.

Hamilton and Patrick Lyons, both of whom work for the firm Eaton Peabody, spoke to The Ellsworth American to explain their standard of conduct with local boards. They said repeatedly that they were not responding to any specific case.

“The planning board can’t change the rule during a proceeding,” Hamilton said. “So the rules are the rules … The local boards simply apply the rules to the projects.”

Hamilton said he calls this process of focusing on the ordinances in play “finding the facts.”

Lyons said he’s often been struck by how well local officials have made sense of complicated cases.

“People are pretty smart, and it’s just a matter of having to learn the process and getting familiar with the subject matter,” Lyons said. “I’ve always been impressed with volunteers on these boards’ ability to get up to speed on these complex issues.”

But Lyons also said the lawyer’s role is to best represent the client’s aim.

“Everyone’s entitled to an attorney, and the attorney’s job is to put the best case forward for their client. So the attorney’s going to make sure they’re aware of all the rules and standards,” Lyons said. “And taking that a step further … the attorney’s job is to put forward a good-faith argument that their information is better.”

Lyons said the information lawyers use to make their argument needs to be credible; otherwise attorneys could violate Maine Bar rules.

For Holt, the issue is that volunteers are often contending with lawyers without having a lawyer present themselves.

“A lawyer will come in and cite all sorts of court precedents and give us a lecture in what’s right and what’s wrong,” Holt said. “And it feels very much like bullying when you’re a member of the board. I’m sure the lawyers will say they’re only there to protect the interest of their client, but it’s very intimidating.”

He said that muscle can often can carry legal and financial weight as towns feel obliged to negotiate with lawyers.

“These lawyers will often threaten lawsuits,” he said, “and the selectmen don’t want to spend the town’s money on legal representation on some things that will last for years.”

Holt’s view is that lawyers working for applicants can create an environment where town officials don’t feel comfortable speaking their minds. As a result, he said, the function of local democracy can be diminished.

“The only alternative, I suppose,” Holt said, “is each town needs to have an attorney present for all-volunteer board meetings to protect the interests of the town. I don’t think it will happen.”

He said he thought money is a prohibiting factor keeping lawyers out of town offices throughout these discussions. And he said it’s unlikely the presence of lawyers for applicants will go away any time soon.

“If there’s a lot of money at stake for a company or there’s personal privilege that someone wants to maintain, they’ll hire an attorney,” Holt said.

Jack Dodson
Jack Dodson began working for The Ellsworth American in mid-2017, and covers eastern Hancock and western Washington counties. He grew up in the Mid-coast region before living in New York City for five years, where he freelanced in documentary filmmaking and journalism. He is particularly interested in criminal justice, environment and immigration reporting.

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