[This transcript was generated automatically from audio using AI and hasn't been reviewed by a person -- it can contain mistakes, including plausible-sounding sentences that were never actually said. Treat it as a starting point, not a verbatim record.]

[0:22] This is actually the first meeting that we've held since July 1st, so this is our annual meeting, and the first matter that we must consider is the appointment of officers of the board.
[0:35] with respect to the Office of Chair. Are there any nominations?
[0:43] I nominate our current Chair, Stephen Sears, for Chair.
[0:48] I second.
[0:50] All in favour?
[0:54] Four in favour and I abstained.
[0:58] I nominate Wayne Berry as the Vice Chair of the Zoning Board of Appeals.
[1:03] I second it.
[1:05] I seconded by Ms. King Kate.
[1:08] All in favour?
[1:14] I also nominate Mr. Barry as the secretary of the board.
[1:20] Can I vote on this one?
[1:26] Is there a second?
[1:26] It's asking.
[1:28] I second it.
[1:29] All in favour?
[1:32] The vote is 4-0 in favour of Mr. Barry's appointment
[1:34] and the secretary of the ZBA.
[1:40] Are there any reasons for recusals of any member
[1:45] in considering the matters before the ZBA today.
[1:50] There are no such matters.
[1:52] Are any conflicts of interest present
[1:54] between any member of the board and any matter
[1:56] under consideration?
[2:00] No conflicts of interest are identified.
[2:06] All right.
[2:10] We'll now take up the matter of Mr. McCormick's appeal.
[2:15] And the first thing that we have to consider is
[2:18] is there a quorum present to reverse a decision
[2:22] of the HPC, if that is indeed the decision. And there are five voting members present so
[2:30] that satisfies the core requirements for any consideration of HPC matters. I trust that you
[2:37] agree with that, Mr. Brown. Yes, Chair.
[2:44] There is some remaining business that we have to take care of, including approval of minutes,
[2:51] But we'll take that up after the hearing on the McCormick appeal and the same thing with respect to the necessity for appointment of alternate members because we're a little thin on the ground here, and I want to make some points following argument on this appeal.
[3:17] All right. Just a question before we begin Mr. Brown, you contend in your papers that this is an administrative appeal.
[3:29] But that's not the case, it's really a decision of, it's an administrative, it's an appeal of a decision from another board.
[3:39] So it's under Section 2, D of Article 6, administrative appeals generally are only for appeals relating to decisions of the Code Enforcement Officer.
[3:50] And those are appeals under Section 2, A of Article 6 of the Zoning Audence.
[3:57] So, I know it's just a matter of terminology, but there isn't any doubt that this is an appeal from a decision of another board, namely the historic president.
[4:07] There is no doubt of that, yes sir.
[4:08] Very well.
[4:10] It does have some consequence in connection with met as relating to appeals from other boards.
[4:22] There are a number of issues that are raised in this appeal, but would you agree that the central
[4:29] preliminary issue is one of jurisdiction, and that is whether the appeal in this case
[4:33] was timely filed?
[4:36] I believe it was, and that that is not, in fact, an issue before the board.
[4:39] I know that we did take some time to establish that as having been met conclusively, simply
[4:48] to put those facts before the record or in the record before this board, but I do not believe
[4:53] it's something that is a question to be significantly discussed here today.
[5:02] Respectfully, I think we disagree as a board.
[5:07] That is an issue and you've devoted probably
[5:09] 50% if you're total briefing to that one issue. Well, there's not much else to say.
[5:14] I mean, it's all the same facts from the first go around in the HPC didn't add anything to their new findings effect.
[5:21] So, quite frankly, the only thing I have to talk about is the timeliness issue.
[5:26] Well, I mean, if I may, I'll simply say, this appeal was filed July 13th.
[5:31] That's within 30 days of the 2011 issue in the written.
[5:34] Well, where though?
[5:35] It was filed here with the town office.
[5:39] The zoning ordinance is very specific as to where an appeal needs to be filed.
[5:46] It's in the office of the town clerk and ordinarily what happens is the town clerk
[5:52] stamp the filing as filed and not only dates it but states the time of the date.
[5:59] And if you want to see an example of that in your supplemental memorandum that was filed
[6:06] on August the 5th. Right, I hear there's the timestamp that says received town clerks office,
[6:14] August 5, 2026-234 PM. I don't see any such timestamp on papers that you've put as part
[6:24] of the record that you've put before us. So how do we know that it was filed on in the office
[6:30] of the clerk as required by the zoning ordinance on July 13th?
[6:35] I can't speak to that. Does it indicate a date upon which it was received?
[6:40] By the tone clerk's office? No, it doesn't.
[6:42] Does it indicate a date upon which it was received by the town?
[6:45] Nope. There's no date stated on it at all.
[6:48] You know, I can tell you that the town clerk set up this meeting.
[6:51] It was accepted by the town for this hearing set on this agenda.
[6:58] So, she suggested it came through some wrong channel.
[7:01] was otherwise not accepted. I don't know what to say. The check was cached. All of the notices
[7:07] were sent to all parties.
[7:11] You know, at most this would seem like some sort of clerical
[7:14] or administrative error. It would not in any way seem to affect the substance or underlying
[7:20] merits of the application. Nor does it seem to have affected in any way the administrative
[7:24] to posture or procedure in and for progress.
[7:30] This proceeding, because here we are. In every aspect of it that was necessary to play out has played out the way it was needed to get here.
[7:39] So I don't agree that anything mistake into a place, I don't see where it did.
[7:46] And even where that the case, I don't see how that would be prejudicial to the process before us today.
[7:56] Well, the original copy we got said it was hand delivered.
[8:01] You're enough?
[8:03] Well, that's your writing.
[8:05] Is your header and your writing?
[8:07] Is his viahand delivery?
[8:08] Do you know who delivered it into him?
[8:10] I would have.
[8:11] You would have, and whom do you put it in some of his hands?
[8:14] I do.
[8:15] I did.
[8:16] You know what the name was?
[8:17] I don't recall.
[8:19] And I'm not a witness here.
[8:21] I apologize, I.
[8:22] No, it's.
[8:24] Here's the dilemma that we find ourselves in.
[8:27] The
[8:31] dated decision from the HPC is dated May 27th of 2026.
[8:40] There's a specific provision in Article 12, which deals with the HPC and appeals, which
[8:46] royals is Article 6, and indicates that that is the procedure in provisions, which will
[8:51] maintain or deal with and tell us how to handle these appeals.
[8:58] And that indicates that it's 30 days from a written appeal.
[9:02] Now, I mean, I guess it may not still be relevant here if you're saying that whatever evidence you have of receipt is insufficient evidence of receipt.
[9:12] I guess if that's the case, nothing before you would be sufficient except for that addendum.
[9:16] So my point is more particular.
[9:22] There's a general rule that governs appeals generally.
[9:27] And that's in Article 6, Section 3A.
[9:31] But that's not the section that applies here.
[9:35] There's a specific section of the zoning ordinance
[9:37] that deals with appeals of denials of certificates
[9:41] of appropriateness by the HPC.
[9:44] And that's found in Article 12, Section 3,
[9:48] Section 12, which says, any person agreed by a decision of the Historic Preservation Commission
[9:55] on an application of a certificate of appropriateness may appeal the same within 30,
[10:00] 30 days from the date the decision is rendered,
[10:06] and we know when the decision was rendered
[10:11] by the HPC because that's a dress specifically on page 1 of your brief opening brief and it says,
[10:20] In these are your words, Crohn M. McCormack, the owner and applicant for 15 Portland Road appeals
[10:27] to the zoning board of appeals from the decision of the Historic Preservation Commission
[10:31] denying his application for a certificate of appropriateness.
[10:35] The Commission rendered that decision on remand from this board denied the certificate by
[10:40] a vote of 40 on May 27, 2022, and issued its written decision and findings of fact to
[10:48] undersigned on June 11th, 2026.
[10:53] That's right.
[10:54] The question.
[10:55] The question.
[10:55] The question.
[10:56] The question.
[10:56] The question is when was the decision rendered?
[11:01] And you say in your brief that the decision was rendered on May 27th, 2026?
[11:07] That's fair.
[11:07] Mr. Chair, respectfully.
[11:09] I think it's abundantly clear to me that Article 12 points to Article 6 is the appropriate
[11:13] procedure.
[11:14] I believe that we are more than within the timeframes necessary for this.
[11:18] further the the decision to which you are pointing has either both no appeal rights
[11:26] noticed or any time frame in what's so ever right acknowledging or identifying to us that
[11:32] an appeal was either necessary or within any or within which any any time frame of which
[11:37] we needed to take it so if if you know again completely irrelevant I'm not asking you to
[11:42] wave our argument is we are timely in any view of the ordinance that you want to look
[11:48] Full stop. All right. If this boards determination though is that you want to look at this in
[11:53] a side that we're untimely and you want to deny it based on that, I don't want to waste
[11:57] your time or mind in doing this. Just get to it. We'll go to court and we'll have them deal
[12:02] with it and look at all the other violations in this thing as far as due process and failure
[12:06] to give us notice. We'll take care of that. We'll come back here. You can rule on the issue
[12:11] with timeliness again, right? And then you can determine if you want to send this back for
[12:15] third re-man, right, or if you're going to give us a certificate of appropriateness, then,
[12:19] or maybe we'll get the superior court to just take care of all this for the town at that
[12:22] point, right? So I've made my argument repeatedly. I think it's abundantly clear, right?
[12:29] I think the town of the HPC is falling down on their face, but again and again, no matter
[12:34] how many times have been given, right? And if the board has already had discussions about this,
[12:40] right? If the board believes that this is a decision that's keystone and is going to determine
[12:44] this, then I'd rather just go ahead and have the board do what you're going to do or make
[12:49] that decision, then spend a lot of time, spend in our wheels, and go and know or with it.
[12:54] Well, any reviewing authority is going to have to scrutinize the chronology of the relevant
[13:04] events in this matter, and I want to make sure the record is crystal clear on that.
[13:09] So, let's take it one step at a time.
[13:12] You were before the HPC on May 27th,
[13:16] on behalf of your client,
[13:17] seeking a certificate of appropriateness to demolish
[13:20] the building at 15 Portland Road,
[13:21] the main building in the L is accurate.
[13:24] As correct.
[13:25] You were present at the hearing,
[13:27] and you heard the decision that was issued on that day.
[13:30] That's correct.
[13:30] By 40 vote, right?
[13:32] I don't recall the vote.
[13:34] It was 40.
[13:34] And you knew that the HPC had on that day denied the certificate of appropriateness, right?
[13:44] I knew that they had voted on findings of fact, which were to be written and signed in a proved at a later date.
[13:53] Well, the findings of fact were attached to the May 27th 2020, 2020-26 decision, wouldn't they?
[14:00] They remain on sign. The only thing there at sign is there's certificate, which, again, brings us back to, you know, what's actually there.
[14:09] So, they remain on sign. In fact, the findings you're pointing to still have the January 14 date on them.
[14:18] Well,
[14:21] the fact of the matter is that you were aware on the date that the vote was taken, the application for a certificate of appropriateness had been denied by the HPC. Isn't that so?
[14:34] Again, what I understood was that they had determined certain facts that they wished to
[14:40] include in any amended findings of fact, pursuant to direction by this board.
[14:47] That's what I understood, which amended findings of fact did not issue until June 11th.
[14:54] All right, and well, you didn't actually make a transcript.
[15:03] So we have no way ourselves to determine what was said on that date, what was considered, what was discussed, but regarding findings of fact?
[15:14] The findings are fact of that board. That's what you have before you did determine.
[15:18] But we have no way of knowing what the course of discussions was, what kind of debates they were regarding arguments that were being made.
[15:28] That's all known to you, but not known to us.
[15:30] That would all be in everything relevant would be and should be included in the findings effect.
[15:35] All that you're here to determine and consider is what's in the findings effect.
[15:39] This is not an evidentiary hearing.
[15:42] I don't know what else to say there.
[15:44] Like all of that else would be completely irrelevant.
[15:46] We shouldn't be considering you're talking about that.
[15:49] You make many arguments concerning the three engineering reports
[15:54] that are referred to in your papers.
[15:56] All consistent, all in favor of the applicant.
[15:59] None of them have been put before us.
[16:01] They're all in their record.
[16:03] They were all included in the first HPC appeal with a ZBA.
[16:08] That was, in fact, included in the second appeal submitted
[16:11] to this board in its entirety.
[16:15] with all due respect it was not.
[16:19] We've got what you've put for us in your package,
[16:23] the state did you lie the 13th, 2026,
[16:26] but it isn't stamped the file by the town clerk.
[16:29] And we've got your supplemental memorandum file
[16:33] on August the 5th.
[16:35] But we don't have those engineering reports.
[16:38] How are we supposed to know what's in them?
[16:39] Tell you what, candidly, that only helps our case.
[16:42] I mean, if you want to talk about that,
[16:45] You're looking at a findings of fact determination by an HPC completely void of any explanation,
[16:51] you know, justifiable for why they decided what they decided.
[16:56] So to say that you're missing information that would further explain or validate one side
[17:01] of the other, that's not our shortfall, right, or our shortcoming.
[17:05] That's theirs.
[17:10] Having a little difficulty following that line of thoughts there, I have to tell you.
[17:14] That's getting more into the meat of the matter.
[17:16] I think the matter we're discussing right now is the time limit us of filing and how it was
[17:21] filed, when it was filed, when it was paid for those are all issues that this board needs
[17:27] to consider to make a decision on whether we're going to hear it at all based on the filing
[17:35] time.
[17:36] As you put it in your supplemental memorandum, an appeal period is jurisdictional and if we don't
[17:45] have jurisdiction because this was not timely file.
[17:48] We don't have jurisdiction to hear anything further.
[17:51] So the only decision, I mean, the initial decision that we have to make is whether or
[17:55] not this appeal was, in fact, timely filed.
[17:59] And the time period for filing an appeal for certificates of appropriateness from the ABC is
[18:07] specifically defined in Article 12, Section 3, Subsection 12 of the Zoning Ordnance.
[18:14] are deals specifically with appeals from the denial or grunting of certificates of appropriate.
[18:20] And we can keep talking back and forth at each other all day.
[18:23] I'll simply say one more time, I believe, and I've stated, I believe the ordinance is
[18:27] back to me up here, Article 12 says 30 days from when the decision is rendered, its own sentence
[18:32] adopts Article 6 section 3 procedure, 3A runs from issuance of a written decision, section 3C11,
[18:39] commission itself forth with furnish reasons. It took him 15 days and it was accompanied
[18:44] by a written apology. Didn't include any appeals right notice. Didn't give us anything
[18:49] in the way of any timeframes.
[18:52] Well, you knew, you knew that the new, you knew that the yes, sir. You knew on June the 11th
[19:00] at the latest that the written decision had been rendered on May 27th, didn't you?
[19:08] You're saying, well, even though I was present at the HPC meeting on May 27, and even though
[19:13] they voted to deny the certificate of appropriateness, I didn't know that the written
[19:19] decision had been...
[19:20] Thank you, Mr. Chair.
[19:20] I have nothing further to add.
[19:22] Thank you.
[19:29] Yes.
[19:30] Are the board members may have some questions?
[19:36] Mr. Goran, I wondered if you had read the minutes from the March 16th, 2006.
[19:45] meeting.
[19:47] Is there any Board of Appeals?
[19:49] Zoning Board of Appeals, March 16, 2026.
[19:54] No, man, I did not read the minutes of the 2026,
[19:58] Zoning Board of Appeals meeting.
[19:59] The minutes indicate that you were present?
[20:02] Correct.
[20:04] There was much discussion that went on.
[20:08] And I want, I'm going to read a little bit of this
[20:10] because I know you don't have it, and it's, let's see.
[20:14] extensive discussion and sued about the HPC's finding of facts.
[20:20] After lengthy exchanges, ZBH airs airs remarked that the HPC's ruling was in his view legally
[20:28] deficient, as it lacks specific supporting facts for its legal condition, other board members
[20:35] concurred.
[20:38] The ZBA then entertained the following motion.
[20:44] It's a little log, please have patience.
[20:48] The motion was, move that the Zoning Board of Appeals vacate the findings of fact signed
[20:53] by the chair of Historic Preservation Commission in the HPC application, number 25, H21, January 26,
[21:03] in 2006, but erroneously dated January 16th, 2006, on the ground that each specific finding
[21:13] failed to state the facts upon which the purported finding was based, and therefore
[21:21] failed to comply with clear and well-established main case law and statutory law, expressing
[21:28] to expressly requiring legal conclusions to be based on specific factual findings, which must
[21:38] be made clearly, which must be made clearly by the administrative body at issue.
[21:45] In addition, and as an integral part of this motion, that this case, the remanded to the
[21:52] historic preservation commission, so that each and every one of the legal conclusions must
[21:58] be supported by clearly stated findings of fact to each such conclusion.
[22:08] I can finish this at the specific factual findings on each of the 10 separate approval criteria
[22:14] identified in the January 16th, 2020, and 26 findings of fact must be made in sufficient
[22:30] The prize, the zoning board of appeals, or any reviewing court of the factual basis of each of the legal considerations.
[22:39] That is a motion it was moved by Mr. Sayers, I seconded the motion, show of hands, five in favor, none opposed one absent.
[22:50] So at that meeting, it was so voted that the H.P.C.
[23:00] reasons had to be made to the fact that each of the findings of fact, I didn't find
[23:08] them anywhere, and it is up to the applicant, not to the zoning board of appeals, but to
[23:17] the applicant, to make sure that all of the required submissions are in the packet, I did
[23:26] find it.
[23:37] So, you're asking me to provide something to the HPC didn't create.
[23:44] No. You were
[23:46] at that meeting. You did not oppose this motion. You did not speak to the fact that you
[23:55] couldn't get them because it's your responsibility or your clients responsibility to attempt
[24:01] to get those. If you couldn't get them, you can get that in writing. But the person who's
[24:09] filing the application is responsible for submitting all of the information. So what I'm
[24:15] saying is you were at this meeting, you heard the application, you heard the motion that
[24:22] was made and unanimously voted and yet we do not have the information.
[24:29] That's correct. I don't think it's a misstatement to say that the only supportive materials
[24:41] or statements of factor law that I included as it relates to the HPC's decisions were
[24:48] specifically explicitly with themselves included in their findings of fact. And I did not
[24:54] to provide any additional information or materials to this board?
[24:59] I think that's by point.
[25:01] OK, thank you.
[25:03] I do not believe that was an error on my part, but I do appreciate your point to that.
[25:07] And I don't thank you for putting that in the record.
[25:09] It specifically says in this big document that we're responsible for that it is the appellants
[25:16] responsibility to get all the materials.
[25:20] And it's not here.
[25:28] I'm sorry if I threw you a curve ball, but that's that's that.
[25:38] Just a question for you Mr. Rowan, whose responsibility is it to prove that the
[25:44] ZBA has jurisdiction of this appeal?
[25:47] It would be the applicants.
[25:50] Thank you.
[25:52] Any other questions from board members?
[25:59] I'd like to get to the first decision we have to make, which is whether it was timely file
[26:05] or not.
[26:06] There's certainly an expiration on both sides of the table here that on the interpretation
[26:11] of what it was filed and whether it was timely or not.
[26:14] We have with us tonight a Dan Stockford from the firm of Brandon Isaacson, and he's had
[26:20] opportunity to review the submittals that we have in front of us, and is there anything
[26:28] or is there anything that you see as different from what we have been discussing as far
[26:34] is the timing of submissions, like what
[26:44] you've described is consistent with my understanding
[26:47] the review of what's been submitted and what the applicable timeframes are.
[26:54] Mr. Stockford is here tonight representing the Zoning Board of Appeals, not the town of Kenny
[26:58] Bug, not DHP. He's here for our benefit. This board only.
[27:08] Mr. Stockford, is it?
[27:10] Yes.
[27:13] There isn't any dispute in this case that it is the Appellan's burden of proof to establish
[27:19] jurisdiction on the part of the ZBA over this appeal, is that correct?
[27:24] That is correct.
[27:29] Any other comments from members of the board?
[27:36] In light of what we have heard so far and in the things that have been submitted to us, it appears
[27:46] that few
[27:51] things, one that the submission on the 13th as Mr. Braun alleges, we don't have intake
[27:59] on it.
[28:00] We don't have anyone who actually took it in their hands, said yes I have this, I am accepting
[28:07] it on behalf of the town.
[28:10] As you stated on the additional submission, it was clearly stamped by the town clerk.
[28:18] We also have the question of payment, I guess, that also is covered in article 6 that has to be submitted at the same time.
[28:29] And while we do have evidence that the town did receive a check, it certainly is not accepted or received by the town on the date of the 13th.
[28:42] It puts this board in a very difficult position of saying that either it was officially received and not received because we have no way of knowing how it was received or when other than Mr. Braun's submissions and position that he got it in on time.
[29:05] And even that is if you're counting the days between his beginning period of starting on the 11th,
[29:20] and then we get to the 11th of June, or July, excuse me, July, we've ended on a Saturday,
[29:29] and we give them the benefit of the doubt under a civil rules of procedure that says,
[29:36] You can go to the next business day, which was the 13th.
[29:40] I just find it very exasperating that you're crossing the line and breaking the tape at the last minute.
[29:49] It would have been a lot easier for us to look at this and go, oh yeah, no problem.
[29:52] Plenty of, got it in plenty of time.
[29:54] And now you're asking us to consider the fact that you started.
[30:00] We're counting from a different date than the date of the meeting. You know, you got 30 days out and then all of a sudden, you got three more days to get it in and then you took that last, last day to get it in under your testimony.
[30:12] And
[30:15] I just think it puts this Board in difficult position of determining timely submission.
[30:21] And we have no, we have heard from council, our council for this evening that he didn't see any difference in our position.
[30:28] has been put forward already compared to the appellant position.
[30:42] There are two arguments to consider.
[30:45] The first, this is just my own individual views.
[30:48] Now, I'm expressing, as a former attorney specializing in both trial and
[30:55] appellant litigation, it's extraordinary to me that any responsible
[31:01] party would wait until the last day to file a notice of appeal because it's
[31:09] jurisdictional. Failure to file it, failure to satisfy all of the
[31:13] applicable requirements is fatal and you leave yourself no time to correct those
[31:19] is.
[31:23] Filing on the last day somewhere and not getting a stamped failed stamp from the office
[31:34] of the town clerk just leaves me shaking my head I have to say.
[31:45] But it's the burden of the
[31:51] jurisdiction upon this body have been met, and I don't see that that has happened here.
[31:59] So, is there any further discussion that anyone wants to have based upon those comments?
[32:08] I have a motion if the Board is prepared to entertain it.
[32:17] Just to be clear on the issue of jurisdiction and timeless, this is not require a vote of
[32:25] majority of four, this only requires a vote to meet the quorum of a meeting because we're
[32:30] not on talking about the case when we talk about getting there.
[32:34] Boots, as I understand it,
[32:39] from Article 6, Section 1E of the Zoning Holdenance, votes to
[32:45] reverse the decision of the HBC require four votes of the ZBA votes to sustain a decision
[32:54] of the HPC with any required three votes.
[33:05] Are we voting on the decision of HPC though?
[33:08] We're just voting on the issue of jurisdiction.
[33:10] We're voting on the issue of our jurisdiction.
[33:12] So I would say
[33:21] that I agree with that interpretation.
[33:24] Will we be voting on the HPC charge?
[33:28] We will be voting on the issue of whether we have jurisdiction or not.
[33:35] That's the subject matter of the motion that I propose to make.
[33:39] Of that motion.
[33:43] Okay, we will not, we cannot get to the HPC decision until after we determine if we have jurisdiction.
[33:50] Thank you. Thank you. That's what I do.
[33:53] We don't have jurisdiction to do anything else.
[33:56] That's clarification.
[33:58] Thank you.
[34:01] If I, you have any suggested language.
[34:04] I do, but Mr. Bruno, I would offer one thing to the board.
[34:07] I'll speak it out loud and then it's up to you if you hear.
[34:09] I would offer and say that evidence has a really solely to this issue of time when it's
[34:15] if it in any way would sway, and only because some of the things, you know, you're saying
[34:20] you're just kind of pissing me off as a practitioner, right?
[34:23] Where I'd you provide email correspondence from town council indicating on July 9th that
[34:29] despite all our understanding between each other, the matter would not be automatically coming
[34:34] back to the ZBA, but rather the town was going to require the applicant to take a firmative
[34:41] action themselves to bring it back here.
[34:44] In thus, I had an 11th hour race to get this application back to the ZBA.
[34:51] Mind you again, an HPC decision that had no notice of appeal or time frame with which to
[34:59] file that appeal.
[35:00] would that sway you in your determination as to whether or not it might have been reasonable
[35:07] to file it at the 11th hour? Why would a practitioner do that? I mean just talking
[35:13] about what evidence I might, I would say I could provide that email correspondence between
[35:18] the town council and I as to explain why it came in on the day it did. But beyond that I
[35:23] wouldn't offer anything else to the board. Are you saying that you have written documentation
[35:29] from Ben McCall? I do. That you did not include in the packet anywhere? I do. Yeah, I write it,
[35:36] written, wrote, bought McCall saying, hey, when's this going back to CTA? Him saying the town says,
[35:40] you need to do it. I said, well, that's not how I understood it to be, but okay. And I,
[35:46] 30 days, well, let's get that shit done because I guess we're almost out of time.
[35:53] So now we have
[35:54] an appeal that has, you know, that we have a decision that has no time frame, no notice of appeal,
[36:01] And again, I'm not asking for a waiver, I say that Article 12 and Article 6 allow for this and that this is in fact a timely appeal,
[36:11] right?
[36:12] And I included what I thought was relevant to this, right, which, again, is that the written decision from the town 11 days late with their apology for why they did not issue this unsigned unjustified,
[36:30] date not changed, findings of fact, by email to us, for which we still have never received a physical copy.
[36:40] I thought that correspondence was sufficient to explain whatever there might be, you know, for a perceived delay.
[36:47] But potentially not, and again, if I need to take this to appeal at a higher level, then that's what we'll do.
[36:52] But again, I just, I wanted to speak it out and say that I do have at least one additional piece of correspondence.
[36:56] I could enter the board as evidence if that might make a difference.
[37:08] Anything further?
[37:14] I do.
[37:16] Why wasn't why didn't you submit that correspondence with the town attorney?
[37:25] But generally inclined to only argue things when they're necessary.
[37:30] Not throw my colleagues under the bus. And again, as I just simply stated, I believe that the materials I submitted to the board were sufficient for the purposes necessary today. I believe Article 6 is clearly invoked by Article 12, and I believe that the materials submitted as far as the correspondence from the decision makers at the HPC are sufficient to justify the timeframes that are before the board today. We're not asking for a waiver.
[37:57] We're asking you to find that this application is timely as is, and I can't, I can't speak to whatever there is as far as administrative issues with the processing.
[38:08] All I know is it clearly got to the town, it clearly got processed. The check was cached.
[38:16] You know, but again.
[38:25] Do you have a copy of that information from?
[38:28] I don't know.
[38:29] Is this pertinent to the timeliness?
[38:31] That would be my first question to the board.
[38:34] I didn't see it being put.
[38:36] I don't know what I don't really know what it's said.
[38:40] My suggestion would be that the board leave it to the appellant to decide whether he wants to
[38:47] present that as part of the record or not.
[38:51] And the only difficulty I have with that is that this is an appeal from another board of the
[38:56] Now, therefore, an appellate standard of review applies, except you've taken nothing but evidence
[39:03] tonight on this issue.
[39:04] At this document that Mr. Bronis referring to is not part of the record on appeal, and under
[39:12] 30 AMRS section 20691C, we're not permitted to accept additional materials that are not part
[39:24] the record on the appeal.
[39:27] Matt, my view is that if it's a document that relates to the threshold issue of jurisdiction
[39:36] which would not have been litigated before the commission, I think it would be permissible
[39:43] for you, that it is permissible for you to consider external evidence on that issue.
[39:53] Any of you's from my colleagues on the board as to whether we should take a look at this document.
[40:03] I have a comment that I think is relevant.
[40:09] The process and the documentation of substance, the documentation of submission is well laid out in Article 6, Section 3, A1, 2, 3, 4 and 5.
[40:24] It states what must be done and what records must be kept and we don't have that and that's based on as far as I understand both based on state law as well.
[40:41] So,
[40:44] if I were going through this, I would have made a checklist of every single thing because it's so critical but it's stated here in very clear language.
[40:54] How
[41:07] do you want to take a vote on this?
[41:10] Whether to review this?
[41:12] The mission?
[41:15] Whether we should actually take a look at the document in the first place to determine whether
[41:19] it really does bear materially on the issue of jurisdiction or not.
[41:24] And then the question is whether to admit it because it's not part of the record on appeal,
[41:28] and is ordinarily not to be considered because of the statutory prohibition on
[41:34] acceptance of additional evidence in an appellate proceeding?
[41:43] Well, I'd like to see why Ben McCall checked in on it.
[41:47] I'm not sure that he has any jurisdiction to waive any dates for
[41:52] timeliness for this board or any other board and you guys what advice he might have been giving
[41:57] or questions he might have been asking.
[42:04] That isn't his room.
[42:06] Well, I'm not saying he did, and to be clear.
[42:08] No, no, I know, but I'm just saying, you know, frankly, Mr. Brown, you've been, how many
[42:12] hours have you spent in front of this board, a lot of hours, different cases, and I understand
[42:18] your arguments, but I'm not sure that as Robbins said, I'm not sure that change is anything
[42:24] for us to look at as far as the dates and the timeliness, and that's really the question
[42:29] we're looking to settle tonight, is whether we can accept your submission as a timely,
[42:38] was
[42:39] for us to take a look at and move on to the next section.
[42:58] Do anybody who wants to make a motion for us to review this document, despite the statutory
[43:04] prohibition on acceptance of extraneous material, not in the record.
[43:20] Well, I'll make the contrary motion then.
[43:22] I move that we do not accept any material that is beyond the record on a peel place before us by the appellant.
[43:37] The motion is seconded by Mr. Kalis.
[43:41] Well, in favor,
[43:45] 5-0.
[43:50] I'm going to proceed to another motion.
[43:53] Here it is.
[43:54] I move that this appeal should be dismissed for lack of jurisdiction,
[43:57] because the record placed before the zoning board of appeals.
[44:00] My counsel for the appellant discloses that the appeal was not filed
[44:03] with the town clerk within 30 days from the date on which the date on which the decision
[44:11] rendered by the Historic Preservation Commission, HPC, which was May 27, 2026. The specific grounds for
[44:18] this motion are that under Article 12, Section 3, Subsection 12, of the town of Kennebunk,
[44:24] Selning Ordnance, the HPC's oral 4-0 vote to deny the certificate of appropriateness and its written
[44:30] decision to deny that certificate to the appellant were both rendered on May 27, 2026. So any appeal of that
[44:43] That deadline expired with no such appeal having been filed and without the necessary fees required by Article 6, Section 3.A1 of the zoning ordinance having been deposited with the town clerk.
[44:56] Accordingly, the appeal that the Appellan claims he filed on July 13.
[45:00] 2020, six was untimely, and it should be dismissed for lack of jurisdiction.
[45:07] Any discussion of that motion?
[45:13] Jim, did you get that?
[45:20] There's a couple of different parts of that motion that you're making.
[45:24] One was the date of the decision by the HPC, the date that it should have been filed based on 30 days on that decision.
[45:33] The fact that payment was not risk to the American.
[45:38] No proof that payment was received.
[45:40] No proof that the document was received.
[45:42] It was filed in the office of the town clerk.
[45:46] Both of those points have to be approved by the Appellan in order to confer jurisdiction upon us.
[45:52] Neither has been approved.
[45:56] And the move is for dismissal.
[45:57] That's right.
[45:59] We're dismissing whether without prejudice.
[46:01] this appeal it would be with prejudice.
[46:04] With prejudice, okay.
[46:08] Is it awkward?
[46:10] We okay on that.
[46:11] Did you get the motion?
[46:12] Most of it?
[46:14] I didn't want to.
[46:15] I wasn't able to transcribe it all.
[46:17] Okay.
[46:18] I got the substance on it.
[46:22] So just everybody knows.
[46:23] With prejudice means you can't come back.
[46:27] And I think it would be on time when at this point anyway.
[46:33] Further?
[46:33] For many more.
[46:34] I understand the motion.
[46:37] All in favor,
[46:41] the vote is 5-0.
[46:49] The motion to dismiss the lack of jurisdiction.
[46:51] Those things seconded, please.
[46:53] I think Mr. Kellis.
[46:59] Now, we have to reduce this to an order, I believe, Mr. Software.
[47:04] And in that order has to contain findings of fact and a decision.
[47:10] I'm going to read out the text of a draft order here, and I'll ask for comments.
[47:16] At its meeting held on August the 17th, 2026, and this is denominated and order, dismissing
[47:23] appeal to lack of jurisdiction. At its meeting held on August the 17th, 2026, the town
[47:28] of Kenobunk, Zoning Board of Appeals, heard an appeal, in this case, filed by the Appellant
[47:33] Crow and M. McCormack. The Appellant appeals a decision rendered on May the 27th, 2026
[47:39] by the town of Kenobunk's historic preservation commission, HPC, denying the issuance of
[47:45] certificate of appropriateness to the appellant. The appellant claims that he filed an appeal
[47:50] of the HPC's decision on July 13, 2026, and that this appeal is timely. After considering
[47:57] carefully, each of the arguments made in the appellant statement of grounds on the appeal grounds,
[48:02] dated July 13, 2026, and in the appellant supplemental memorandum in support of the appeal
[48:08] supplement filed with the town clerk on August 5, 2026, and after hearing the submissions of
[48:14] the Appellan's Council, the ZBA makes the following findings of fact and decision.
[48:20] Findings of fact, one. The appellan claims that he filed this appeal on July 13,
[48:25] 2026, but the paper supposedly filed on that date, and not stemmed filed by the office of the
[48:30] town clerk on that or on any other date. Two, the appellan did file his supplemental memorandum
[48:37] with the town clerk on August the 5th, 2026 and the town clerk stamped it as quote received
[48:43] unquote on August the 5th, 2026 at 233 p.m. This appeal involves the HPC's denial of a
[48:51] certificate of appropriateness dated May the 2027, 2026. The appellant had requested the
[48:57] certificate in order to demolish a historic house and L located at 15 Portland Road in Kenobunk.
[49:03] This property is located in a historic district that lies within the jurisdiction of the HPC.
[49:09] This certificate was signed by the chair of the HPC on May 27, 2026, and the HPC's
[49:15] quote, findings of fact, unquote, or attached to that certificate.
[49:19] In that certificate, the HPC rendered its decision that the Appellancer request was, quote,
[49:24] not in conformity with the provisions of Article 12 of the Kennebunk Zoning Ordnance, and
[49:29] that the same will be in substantial derrogation of the purpose is set forth in such
[49:34] ordnance, unquote, for. In section 2A, if it's supplemental memorandum filed with the
[49:39] town clerk, the appellant conceits an appeal period is jurisdictional.
[49:44] 5. The appellant also conceits on page one of his grounds that the HPC, quote, rendered unquote
[49:50] its decision on his application for a certificate of appropriateness on May 27, 2026, 6,
[49:57] Article 12, Section 3, Subsection 12, is specific on the limitation period applicable to HPC decisions
[50:04] on applications for certificates of appropriateness.
[50:08] Quote, any person agreed by a decision of the historic preservation commission on an application
[50:13] for a certificate of appropriateness may appeal the same within 30, 30 days from the date the decision is
[50:19] rendered and that the appeal is to be addressed to this board. The HPC rendered its written decision
[50:25] issue on May 27, 2026, the appellant was present at the HPC hearing held on that date and was aware
[50:32] of the HPC's decision by a vote of 4 to 0 to deny his application for a certificate of
[50:38] appropriateness on that date. The appellant was also aware of each of the HPC's findings affect
[50:44] undergirding that decision on that date. The 30-day appeal period governing his appeal expired
[50:51] on June the 26th, 2026, which was 30 days after the HPC's written decision, denying the
[50:57] Appellan's request for a certificate of appropriateness.
[51:00] 9.
[51:00] The appellan did not file any appeal of the HPC decision rendered on May the 2026 within
[51:06] the 30 day appeal period prescribed by Article 12, Section 3, Subsection 12 of the Zoning
[51:12] Ordnance.
[51:13] 10.
[51:14] The appellan claims that he was supposedly unaware of the HPC's written decision, until
[51:18] The copy of it was sent to him by a secretary working in the Kinabunk Community Development
[51:23] Department on June 11, 2026. He also argues that the 30 day appeal period should not
[51:28] run from the rendition of the HPC's May 27, 2026 written decision as required by Article
[51:34] 12, Section 3, Subsection 12 of the Zoning Oldenance, but rather should run from the date
[51:40] of delivery to him of a copy of that decision on June 11, 2026. The appellant, however,
[51:46] was well aware of the HPC's decision and each of the reasons for that decision on May 27,
[51:51] 2026 because he or his attorney was in attendance of the HPC's meeting on that date, which
[51:57] was also the date upon which the HPC rendered its written decision denying the appellant
[52:01] sound application for a certificate of appropriateness.
[52:04] 11.
[52:05] Upon the record presented to this board by the appellant, the board is not persuaded that
[52:10] this appeal was filed with the town clerk in quotation marks, quote filed with the town clerk
[52:15] on quote, as required by Article 6, Section 3.8, one of the zoning ordinance.
[52:20] The Appellan's notice of Appeals is not stamped to by the turn clerk, and there is no
[52:24] other evidence showing that the Appellan's Appeal was actually filed on July 13, 2026.
[52:30] In addition, Article 6, Section 3, A1, requires appellants to pay certain specified fees, quote, at the time of the filing of the appeal.
[52:40] 13. There is no evidence that the appellant actually paid these prescribed fees at the time of filing of the appeal.
[52:48] 14. The board concludes therefore by unanimous vote of 5 to 0, that this appeal is not timely filed, and that the required fees were not deposited with a town clerk by the deadline specified in the zoning ordinance.
[53:01] decision. The appellant has conceded that limitations periods applicable to the filing
[53:06] of HPC appeals or mandatory and jurisdictional, and because he failed to file, his appeal
[53:12] or pay the required fees by the deadline specified in his own ordinance, his appeal is dismissed,
[53:17] a lack of dismissed, we've breached this for lack of jurisdiction.
[53:25] Any discussion of
[53:35] those
[53:40] All in favour of this motion, as amended,
[53:46] by addition to the words with prejudice.
[53:51] The vote is 5 to 0, this appeal is dismissed with prejudice,
[54:06] notice of decision.
[54:08] There's a notice of decision that's required within seven days.
[54:11] But that's the, those are the findings of fact, and the decision I've actually put them in writing in my own appallingly typed version of this.
[54:23] And I will give them to either you or to Mr. Schlockhack, as you see fit, to reduce the
[54:29] writing.
[54:30] We actually have to notify the appellant that he has 45 days to appeal to this decision.
[54:40] I think you may ask that before I disappear.
[54:43] Yes.
[54:43] Just a second.
[55:15] in terms of other business,
[55:30] there are minutes of prime meetings of the board, which have been
[55:35] circulating by Mr. Schlockhack. I have previously submitted some proposed edits typographical
[55:44] edits, only not substantive to Mr. Schlockhack. You received those, right, Jim?
[55:50] Okay.
[55:51] Thank you.
[55:53] Okay.
[55:55] Does anybody have any comments on the January 21st, 2026 meeting minutes?
[56:10] In that case, I move that the January 2626 minutes as amended be approved by the Board.
[56:21] All in favour?
[56:22] Is there a second?
[56:23] by the way.
[56:24] Secondly, by Mr. Kalis, all in favour?
[56:36] Yes, not.
[56:36] Look at my notes.
[56:38] And I withdraw my motion.
[56:39] Got it.
[56:39] Got it.
[56:40] Okay.
[56:41] No problem.
[56:47] Do you plus that?
[56:48] The copy that we received in our packet is the corrected copy.
[56:57] Is that not?
[57:03] I'll be pleased to show you if you like the correct copy here.
[57:10] I have two copies.
[57:11] I don't want to.
[57:13] To eliminate any confusion, I propose that we defer a voting on this. Why don't you submit to us, Jim, the corrected minutes, and then we can vote on that, that next meeting, which is going to be pretty soon. I think in about three days.
[57:28] Is my 16th correctly as well?
[57:33] Yes, I think I made some amendments of the March 16th minutes as well.
[57:38] So what I'll do is you'll get four of these corrected to my...
[57:43] We won't do hard copies, you won't have time.
[57:47] Could I also request that...
[57:50] Corrected copies of the November...
[57:54] I mean, it's the 2025 minutes, be circulated too.
[57:57] I know I submitted some corrections.
[58:02] I actually submitted my own handwritten version of those minutes to you, Jim, and they contain
[58:08] some errors that need to be corrected.
[58:10] So I need to go.
[58:12] I can't remember.
[58:13] I can't remember the exact date.
[58:15] But whatever.
[58:22] Yeah.
[58:23] Okay.
[58:27] Final matter that I'd like to take up is the Board's Memberships.
[58:35] We need some younger blood, I believe, for younger generation of blood on the board, and I think that we absolutely need to identify two people who are willing to do the extremely substantial amount of work that's required to serve on this board and have the ability to do that as you can.
[58:57] Today's really excellent illustration of the care with which provisions of the zoning
[59:02] movements have to
[59:08] be laid to do with other applicable provisions.
[59:12] So I'd like to charge you with identifying the names of some individuals that we can speak
[59:22] with and try to persuade to shackle themselves and their schedules in the future.
[59:32] I am not that confident like powers of persuasion,
[59:39] but can we all try to come up with a couple
[59:42] of names that people who might be gullible enough to accept the
[59:50] abilities of office.
[59:51] That's all convinced.
[59:55] One question, Jim, were you here for the 21st January 21st meeting?
[59:59] That was a...
[1:00:01] No, this candidate was not here, not present. She's not listed as present, but her calendar shows if she was. So, some of you can have to go back to your notes.
[1:00:12] You
[1:00:16] would have been an alternate.
[1:00:37] You would have been an alternate.
[1:00:39] You would have been an alternate.
[1:00:43] Do you want to make any other motions?
[1:00:49] Motion to adjourn.
[1:00:51] Seconded.
[1:00:52] All in favour?
[1:01:00] Well we made a motion.
[1:01:02] Mr. Kellis made the motion.
[1:01:04] Mr. Robinson made the motion and I seconded it.
[1:01:07] and the motion is now adjourned at 7.58 PM or 17.26.