TOWN OF EDGECOMB SUMMARY REPORT OF PUBLIC HEARING
concerning proposed warrant articles for a Special Town Meeting to be held September 20, 2006, including a revision of Article 5, Section 4.8 of the Edgecomb Land Use Ordinance, authorizing a bond counsel to approve a municipal loan for major road work, raising funds for a part-time professional planner and for increasing the Town's legal fund.
September 6, 2006

The meeting was called to order at 7:00 P. M.

NOTE: NOTE: THHE SUMMARY MINUTES OF THE SECOND PUBLIC HEARING ARE ON THE SITE, IN DRAFT FORM, ALONG WITH AN EXPLANATION OF THE TIF DISTRICT --- SELECTMEN'S MINUTES OF SEPT. 13 PUBLIC HEARING.

Chairman of the Board of Selectmen Frank Perkins, Jr. opened the meeting and turned it over to Selectman Stuart Smith, who summarized the proposed warrant.

[[NOTE: The following report is a summary. Certain items and parts of items, in blue text, are amplicifications by Attorney Eric Stumpfel of Eaton Peabody, who attended the meeting at the request of the selectmen.]]

Discussion first centered on Article 6, funds for a professional planner to be raised from surplus in the amount $25,000 to accompany $5,000 raised at the 2006 Annual Town Meeting in May for the same purpose.

Mr. Perkins assured the meeting that this should be viewed as a sound investment for the Town.

Selectman Joanna Cameron pointed out that the $5,000 raised last May (Town Warrant Article 36) was restricted to non-profit organizations, not municipalities. Mr. Smith pointed out that municipalities are non-profit organizations, and that a warrant article could take precedence over a previous article.

Text of 2006 Article 36: To see if the Town of Edgecomb will raise $5,000 for the hiring of a professional planner to work under the direction of the Edgecomb Planning Board for one to two days per week for the period of one year, providing that all costs outside this $5,000 are funded by non-municipal entities apart from the Town of Edgecomb such as a nonprofit organization.

The next articles for consideration were Article 3, the revised wording of Article 5, Section 4.8, Town of Edgecomb Land Use Ordinance, proposed by the Citizens Petition, and Article 4, the Citizens Petition proposed retroactive clause setting the effective date to the date of filling of this petition with the Town of Edgecomb Selectmen or Town of Edgecomb Clerk, which was June 1, 2006.

Mr. Smith explained that alternative wording developed by a special subcommittee of the Planning Board was also under consideration, but to avoid confusion, would not be presented until after the Special Town Meeting on September 20.

Ted Sasala of Fort Road wondered if the TIF District has been superimposed, set in place and defined, are we not voting on the TIF?

Attorney Erik Stumpfel of Eaton Peabody, appearing as the Town's attorney in regard to the tax increment financing project, explained that the TIF District is not a zoning district. He pointed out that since a portion of the land in the TIF district is not currently zoned as Gateway, Thoroughfare or Commercial Growth district, the Citizens' petition, if approved as written, would make that portion of the TIF district ineligible for the quarter-acre "density bonus". The Planning Board would then lack the authority to approve permit applications for that portion of the TIF district unless the two acre per unit minimum lot size is met. The Planning Board would not be able to grant the density bonus in those areas. In response to a further question by Mr. Sasala, Mr. Stumpfel pointed out that if density bonuses and permits were granted by the Planning Board for portions of the TIF district that did not qualify under the Citizens' Petition language (if passed by the voters), opponents of the project concerned could appeal to Superior Court and would win their appeal.

Mr. Sasala: So everything we voted on means nothing.

Mr. Stumpfel: If you change the ordinance that is so.

Robert Zak of Fort Road, a former Selectman objected, "We were not told this when we voted the TIF in. Nothing was said about where the TIF District lay."

Erin Cooperrider, Chair of the Edgecomb Planning Board said that at the time, crossing zoning lines did not matter, because the Land Use Ordinance allowed the density bonus in any zoning district that is served by public water and sewer.

Bobbie Carleton of Fort Road asked, What's the best way to correct this? What options are there?

Attorney Stumpfel replied that if the Citizens Petition is enacted and the Town nonetheless wants to allow the density bonus to apply to the entire TIF district, there are two possible approaches. First, the Town could amend section 4.8 of the Land use Ordinance again, to state that all TIF districts qualify for the density bonus if served by public water and sewer, regardless of the zoning district. Second, the Town could re-zone the affected portion of the TIF district, to Gateway, Thoroughfare or Commercial Growth District, so long as the re-zoning was consistent with the Town's comprehensive plan.

Asked which of these options he recommended, Mr. Stumpfel stated: My preference is for re-zoning, so long as the re-zoning is consistent with the comprehensive plan. Either approach - a further amendment to section 4.8 or a rezoning - would require a Town Meeting vote.

Barry Hathorne of Middle Road asked how a district could be given for an individual business?

Mr. Stumpfel: There are two pieces of Edgecomb Development LLC's property lying within the TIF district. The TIF district boundaries were defined when the town meeting voted to approve the TIF.

Ms. Carleton asked is there a time limit for Edgecomb Development LLC to develop these parcels? Attorney Stumpfel replied that, no, the property owner was entitled to do additional development and receive the TIF benefits any time during the 30 year life of the TIF district. However, new development in the TIF district must meet zoning requirements in force at the time that the project is done.

Attorney Stumpfel replied that under the credit enhancement agreement, 20,000 gallons per day of sewage discharge capacity was reserved for new development within the TIF district. The property owners - Mr. Bintliff and his associates [Edgecomb Development LLC] - had invested something over $1.5 million to create that capacity plus additional sewage capacity to serve the rest of Davis Island. Mr. Bintliff indicated and attorney Stumpfel later confirmed that the additional sewage capacity available to serve the rest of Davis Island was 35,000 gallons per day.

Attorney Stumpfel stated that at the time the TIF was approved, everyone anticipated that Mr. Bintliff and his associates would recover their $1.5 million cost of extending public water and sewer service from Wiscasset to Davis Island through additional development within the TIF district. If the Citizens' petition language is passed, it will take away the density bonus for part of the TIF district. This may prevent Mr. Bintliff and his associates from doing their planned additional development in the TIF district and from recovering their $1.5 million cost for the public sewer and water extension.

Attorney Stumpfel stated that other property owners on Davis Island would be entitled to request their own TIF districts for new development projects. It would be up to the Town whether to approve any additional TIFs. They could also do projects without requesting a TIF. Attorney Stumpfel also noted that Mr. Bintliff's new project on Davis Island outside of the TIF district would be like a project by any other property owner on Davis Island. Like any other property owner, Mr. Bintliff could ask to access some of the 35,000 gallons per day of sewage discharge capacity that is available for the rest of Davis Island.

Roger Bintliff, principal, Edgecomb Development LLC read from a letter by attorneys at Bernstein Shur to Maine Revenue Services: All the relevant state agencies reviewed the interlocal agreements, found everything satisfactory. The water line, paid for by Edgecomb Development LLC, was transferred to the Wiscasset Water District at no consideration. The sewer line, paid for by Edgecomb Development LLC, was transferred to the Town of Edgecomb at no consideration.

In 2000, an initial agreement about public water and sewer was fully prepared, but never signed. The then developers [of the Sheepscot Knoll project] withdrew in favor of the Town of Edgecomb.

Mr. Bintliff expressed his doubt that the 241 signers of the Citizens Petition had been fully briefed on the structure of the TIF District. He noted that at Edgecomb's 2004 Special Town Meeting, the TIF proposal and interlocal agreement were approved by only 7 votes. Later, a special town meeting in Wiscasset passed on the interlocal agreement by only 4 votes. Since the Wiscasset vote, a citizens group has formed in Wiscasset that wants Wiscasset to withdraw from the interlocal agreement. Mr. Bintliff expressed his strong concern that if the Citizens petition is approved by Edgecomb, it will give Wiscasset grounds to withdraw from the interlocal agreement. He also wondered how, two years after the TIF and the interlocal agreement were approved by Edgecomb voters, the voters could now be asked to breach both agreements by approving the Citizens petition.

Attorney Stumpfel responded that he had not drafted the interlocal agreement and did not have a copy in front of him, but unless termination language had been written into that agreement, he did not think Wiscasset would have the right to unilaterally withdraw from the agreement. In general, once an interlocal agreement is approved by town meeting votes of both towns, both town meetings must also vote to terminate the agreement, unless the agreement says otherwise. Attorney Stumpfel pointed out that Wiscasset's voters had only voted on the interlocal agreement, and not the TIF. Wiscasset voters had no authority to approve or deny approval of a TIF in Edgecomb.

Attorney Stumpfel stated that he would not regard approval of the Citizens petition by Edgecomb voters as a breach of either the TIF agreement or the interlocal agreement. However, because approval of the Citizens petition language potentially would negate the assumptions on which the TIF agreement was based by limiting future development within the TIF district, approval of the Citizens petition could give Mr. Bintliff and his associates some remedies in court, to revise or reform the credit enhancement agreement. Attorney Stumpfel declined to speculate in public on what those remedies might involve.

If the rewritten language interferes with the TIF District, there may be unintended consequences, Mr. Bintliff said. Bobbie Carleton pointed out that Edgecomb Development LLC had agreed to take the CHOM-financed workforce housing project out of the TIF.

Mr. Bintliff explained he had been looking for a way to give those taxes directly to the Town without modifying the terms of the TIF District.

Bruce Cameron of the Edgecomb Planning Board said that whether the workforce housing project was in or out of the TIF District was irrelevant. It already has the sewer [sic] bonus.

Mr. Bintliff wondered, do 240+ voters understand the consequences of interfering with interlocal agreements? What does the Town intend to do if the Citizens Petition is voted in?

Tom Boudin of Mill Road: They will vote because they want to keep the Town rural. It's scary that things are happening so fast.

Mr. Bintliff stated he has already 33 new homeowners, with expenses, bringing in around $100,000 in increased tax revenues.

Mr. Hathorne referred back to the 7 vote margin at the original TIF special town meeting, asking if not enough of the Town has voted on an issue, does not the Town have a right to change their vote?

Eleanor Eide of McKay Road asked if people agree about what the unintended consequences might be?

Mr. Smith said that alternative language to that of the Citizens Petition would be offered at a subsequent Town Meeting. Ms. Cooperrider said that is why Edgecomb needs a professional planner.

Tita Townsend of Fort Road, commenting on potential lawsuits, said that the Town should not feel it was in a terrorist situation. She recalled that attorney Paul Gibbons at a June 5 meeting had advised against a moratorium on all building, but to make any wording changes retroactive. It would be foolish for Roger Bintliff to continue in face of all these issues.

Mr. Bintliff observed the trouble with a second Town Meeting would be that fewer people would come to it. He stated that at the last Annual Town Meeting, the language of Article 5, Section 4.8 had been changed to accommodate Shoreland zoning provisions. Why could not Marine I, the zone in which he proposes his development, have been included at the same time?

Mr. Zak asked that at the next public hearing, Sept. 13, the number of acres to be affected should be described.

Michael Mayne on the Boothbay Road asked why the meeting could not see the alternative language? Mr. Smith said the Selectmen had voted to omit it from this warrant for fear of voter confusion.

Mr. Hathorne suggested that instead of one planner, the town should hire a planning company, as had the Comprehensive Plan task force when he was a member of it in the 1990s. Ms. Cooperrider explained that while a company was best for single, finite projects, Edgecomb needed such consultation over a period of one or two years, since the entire Land Use ordinance, and various ancillary ordinances, would need overhauling.

Mrs. Townsend said that two Mondays ago the Selectmen voted for the retro-active clause which would have provided equal opportunity. Then last Monday they rescinded that vote as not within the Selectmen's power to superseed the Planning Board's prerogitave in respect to land use ordinances.

Mr. Stumpfel summarized the statutory provisions and case law regarding citizens petitions. Under Title 30-A, if the Selectmen are presented with a valid citizens' petition containing the required number of voter signatures, they must place it on the next town meeting warrant or call a special town meeting within 60 days for consideration of the articles concerned. The selectmen can wait until the annual town meeting to present the petition articles, but only if no other special town meeting is held before the annual town meeting. Under Title 30-A, if the selectmen "unreasonably refuse" to call a town meeting, that is if they refuse to place a valid petition's warrant articles before the town's voters, the petitioners can ask a notary public to call the town meeting instead. He commented that if there are problems with voter attendance and information at special town meetings called by the selectmen, those problems would be multiplied if the selectmen forced the petition circulators to call their own town meeting through a notary public.

Mr. Bintliff asked, what is the Town's position if this [Citizens Petition] is voted in, as it is so poorly understood.

Mr. Stumpfel said, as a local legislative act, it can be voted on in a Town Meeting, even though it may indeed have ramifications for the TIF District.

Mr. Mayne asked, which is more damaging, the Article 5, Section 4.8 revision article or the retroactivity article? Mr. Bintliff stated they each presented a problem.

Attorney Stumpfel commented that the revised language of section 4.8 proposed by the Citizens' petition would affect Mr. Bintliff's new project outside of the TIF district only if the retroactivity language in warrant article 5 is also approved. However, article 4 of the warrant [ amending section 4.8] if passed, would affect the TIF district whether or not the retroactivity language of article 5 is also passed.

Mrs. Carleton said that in the past the Davis Island citizens had indeed come to informational meetings. When they asked what would happen outside the Gateway District, they were told "Nothing. Density does not change when water and sewer goes outside the Gateway District."

There being no more substantive discussion, the meeting was adjourned at 9:20 P. M.

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