LAMOINE — It all comes down to the details. And, at the Lamoine Board of Appeals meeting Monday night, there weren’t enough of them.
In a letter dated May 2, Alan Moldawer said he was appealing Code Enforcement Officer Rebecca Albright’s decision that a home under construction on Lupin Lane and Marlboro Beach Road is under 35 feet and, therefore, not in violation of the town’s building height ordinance.
Moldawer contends that the home, owned by Thomas and Katherine True, is over 35-feet tall.
But the board did not address the question of height Monday, instead getting hung up on the timeliness of Moldawer’s appeal.
An appeal must be made within 30 days of the code enforcement officer’s ruling that the building met code, according to town ordinance. But board members could not determine when she made that ruling.
“I am not comfortable with the information or lack of information we have at this point,” said board Chairman Hancock “Griff” Fenton.
Albright said Moldawer, whose property is across the road from the Brown Lane home, contacted her in March with his complaint about the home’s height. She said they corresponded via email. She visited the site March 13, when Planning Board Chairman John Holt assisted her with measurements. The home is 28 feet, 10 inches tall without the foundation, she said. It sits on a foundation and, because the home is located on a hill, the foundation is exposed on the lower side but not on the upper side.
Albright said she and Holt measured the building on both sides and calculated an average, which was under 35 feet.
The ordinance states that a building’s height is measured as the vertical distance between the highest point of the structure and the average final grade, or the average original grade, whichever is greater. Grade refers to the elevation of the ground under the home.
Albright said Moldawer disagreed with her determination and they continued to correspond via email. She returned to the site again March 27, measured again and confirmed her determination in an email to Moldawer.
He said she sent him a letter dated April 3 about her decision, but no one at the meeting had a copy.
Fenton asked Albright when she believed the decision had been made.
“We continued correspondence because he was unhappy, but I would say my determinations were made in March,” Albright said.
Board members postponed proceeding further until they could get copies of related correspondence and confer with the Maine Municipal Association. They were particularly concerned with the legal ramifications of email communication.
“I think this is going to be an important aspect of this issue and I don’t want to make any mistakes,” Fenton said.
The board also was concerned about the legal definition of “determination” and when or how parties could be notified.
If Moldawer were to win his appeal, Albright said she most likely would be required to see that the building height was reduced. However, that decision would be up to the board.
Moldawer and John Pottle, attorney for homeowners Thomas and Katherine True, agreed to get copies of emails and letters to the town by Friday. Fenton said he might be able to have everything copied and distributed to the affected parties by the following Wednesday, May 29.
At that point, the board would be ready to schedule another meeting, assuming the Maine Municipal Association will have provided answers to questions by then.
Over the objections of the board, Moldawer and Pottle tried several times to make their cases. Pottle said the building permit was issued in April 2018, making Moldawer’s complaint late by more than a year.
“This is nothing but an attack on that permit and its validity,” Pottle said.
Moldawer said he had no issue with the permit but rather with his belief that the home was not being constructed in conformance with that permit. He said he had no way of knowing the height of the home until it went up in early March.
“If you determine that I’m not timely,” Moldawer said, “you still have a code violation out there.”