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Mr. Richard Jarrett
280 Tucker Road
Limington, ME 04049
(207) 637-2879

October 25, 2000

Selectmen of the Town of Limington:
Barry H. Gammon
Herbert M. Ramsdell
Kathleen A. Maddocks
PO Box 240
Limington, ME 04049

Your Letter of September 27, 2000 regarding the "Protection of Residential Properties from Mineral Extraction Industry Amendments to the Limington Zoning Ordinance" petition and the "Personal Wireless Service Facilities and Towers Ordinance" petition

Dear Selectpersons:

Thank you for explaining your and the Town lawyer's legal basis for not including the two citizen-initiated petitions on the November 7th ballot. While I agree that the technical reason you cited in 30-A M.R.S.A. 2528(5) may allow you legally to postpone the vote until a special town meeting rather than holding the vote on the next available ballot on November 7th, I do not believe that that was the actual intent of the Legislature when they enacted that particular wording. I think is it unfortunate that traditionally fewer voters will participate in a special election and that you will cause the town to incur the additional expense of a special town meeting. Nevertheless, although I am disappointed in your action, I see little point in belaboring the issue as long as the legislative body does get the chance to vote on these important issues in a timely matter.

You also stated several reasons why you did not like these two petitions. Although I appreciate your candor, I feel that the Board of Selectmen is laboring under some misconceptions. Furthermore, it is premature for the Selectmen to render any opinion until after you have held the public hearings on the petitions as is required under the Limington Zoning Ordinance. Without first hearing from the public, no meaningful conclusions can be drawn and could explain some of your confusion on the two initiatives. I would urge you to schedule the Selectmen hearings on the two petitions as soon a possible so that you can benefit from the public comment.

Since you did state some of your reasons for disliking the petitions, I will return the courtesy of explaining of why I think your logic may be in error.

(1) For both petitions, you stated that the Planning Board voted not to forward these proposed amendments to the voters. This is contrary to the facts and such an action would actually have been inappropriate. Instead, the Planning Board merely voted that they did not recommend the petitions. This information will be useful to the legislative body when the voters decide whether or not to enact the amendments and is the purpose behind the requirement in section 11.2.B.

(2) For both petitions, you also brought up the question of the constitutionality of the proposals. Constitutionality can be argued either way. Pit and tower owners may feel that their rights are being infringed by the regulations; neighboring property owners of such industries may likewise feel that their own property is devalued or even taken by the Town due to the lack of reasonable regulations. It is the responsibility of the legislative body to weigh the merits of the proposed regulations. It also should be noted that the citizen's gravel proposal is far less restrictive that the proposal submitted by the Planning Board and approved by the Selectmen two years ago. I believe that that proposal was defeated by only ten votes out of the nine hundred votes cast. Many of the defects in the Planning Board proposal that were stated by the opponents have been addressed by changes in this new proposal.

(3) You also objected to the retroactivity clauses in both petitions. Retroactivity clauses protect the town from the inherent delay between the time when the petitioners submit the valid signatures and the time the full legislative body gets a chance to vote upon it. Neither of the two applications you referenced had received any substantial review before the petitions were submitted. In the case of the gravel petition, the various versions of the proposed regulations had been discussed for the past three years. In the case of the cell tower petition, the Planning Board was asked specifically last May to work on such regulations for inclusion on the November ballot. When it appeared that the board would not get the chance to work on the amendments, there was no secret made that citizens intended to submit such a proposal for the November ballot. In fact, this may be the reason that four incomplete cell tower applications were submitted prematurely. The complete applications were not furnished until long after the petition signatures were submitted.

(4) For the proposed gravel pit regulations you object to the renewal requirement of one renewal by the Planning Board and yearly renewals thereafter by the CEO. Yet in regulations proposed and adopted by the Selectmen there also exists a yearly renewal requirement by the CEO. Regardless of who reviews the renewal, whether it be the Planning Board, the CEO, or the applicant in a "permit by rule" situation, the same exact laws must be followed; the only difference is the amount of public exposure. Even the fees can be made identical since it is the Selectmen who are given the authority to set the level of the fees. In addition, one of the major objections by the public to the regulations proposed by the Planning Board two years ago was that their proposed amendment specifically exempted a single operator. Citizens felt strongly that all operators should be required to follow the same regulations and that provision may have contributed to the narrow defeat two years ago.

(5) For the proposed tower regulations, you object that the regulations do not go far enough. While more comprehensive regulations can always be proposed later either by petition or by the Planning Board, again it is only the legislative body that can make the decision on the adequacy of the proposed regulations.

I am sure that all of these points can be discussed and debated in public at the public hearing. Such a hearing is not discretionary; section 11.2.C of the Limington Zoning Ordinance requires that the Municipal Officers hold such a public hearing.

If you have any further questions about the proposed amendments, the most appropriate forum for discussion is the public hearings. I would appreciate it if the hearings could be scheduled in a timely manner. Please let me know the dates of the hearings as soon as possible. As a matter of practicality, the Board of Selectmen may wish to hold both hearings in the same session.

Richard Jarrett
Richard Jarrett

Limington Planning Board
Jim Haddow, Petruccelli & Martin, LLP
50 Monument Square, PO Box 9733, Portland, ME 04101

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