Originally published in The Weekly Packet, October 5, 2017
Surry gravel pit abutter files appeal
Attorney cites secrecy, unlawfulness and unmet UDO standards
by Anne Berleant
Scarlet Kinney, abutter to a Morgan Bay Road gravel pit approved on August 23, has appealed the planning board’s decision. She had stayed an earlier appeal of a mineral extraction permit issued to M.E. Astbury & Son, Inc. when owner Mike Astbury submitted a site plan review application for a significantly larger pit.
The Board of Appeals is scheduled to hear the appeal on October 23 at 6:30 p.m. at Surry Elementary School.
Kinney’s appeal rests on 14 points that outline alleged errors by the planning board including a “clear error of law” in approving the application. She holds that the board was “arbitrary and capricious by making not a single Conclusion of Law that the site plan review standards of Article III, and IX of the Unified Development Ordinance had been met by the applicant.”
The board reviewed these at a September 28 meeting, well after approving Astbury’s application.
Kinney’s attorney, William S. Kelly, of Belfast, holds that this review reopened the application with no due process or abutter notice as required by law.
Kelley has requested all written communication between board members, town officials, the code enforcement officer, the applicant, and the applicant’s attorney Patrick Hamilton of Eaton Peabody.
“[I]t seems clear that important substantive communications have been conducted outside the scope of the Planning Board meetings and public hearings,” Kelly wrote in his request.
The gravel pit, 7.9 acres on 9.7 acres of land, includes the former 1.2 acre Carter gravel pit. The question of pre-existing use has continued to muddy the discussion, as neighbors hold no gravel extraction had occurred in over two decades until just prior to Astbury buying the property.
Kinney, and other abutters, stated at the August 23 planning board meeting that, if approved, the gravel pit will significantly affect property values and quality of life and local environment.
The planning board has cited the Unified Development Ordinance as the basis for ruling in favor of first the permit and then the site plan review.
The approval of the gravel pit has undergone months of meetings, discussions, and attorney and board review. Mike Astbury, a Blue Hill resident, was initially issued a mineral extraction permit in April for a site under five acres. Abutters protested.
Selectmen then asked the planning board to create a mineral extraction permit application form, which the board approved June 28, while holding that the permit earlier issued to Astbury was still valid. Astbury, and his attorney, then announced plans to submit a site plan review application for the larger 7.9 acre gravel pit, triggering both planning board and Department of Environmental Protection review.