Bryant Pond bake shop’s long tale of regulatory woe (Part 2)
(Note: This is the conclusion of a story begun last week in the Citizen about the Feeding Friendzy bake shop in Woodstock.)
On Jan. 4, 2010, Planning Board Chairman Tom Hartford wrote Feeding Friendzy owner Wendy Bertrand a letter noting the Planning Board had accepted a May 4 expiration date on a state construction permit approved for Bertrand by the fire marshal for correcting violations.
But in February inspector Jim Graves of the Fire Marshal's Office wrote to Maxfield that his office “does not consider a permit expired if work is taking place, however slow it may be, only when they have not done any building/construction before the expiration date has matured.”
The selectmen stood their ground on interpreting May 4 as the date to finish the work, because, Maxfield said, it seemed more formal than Graves’ e-mail, and they wanted to err on the side of being conservative to protect the town.
So in early March, Maxfield authorized a letter to Bertrand, written by Hartford, that both the selectmen and Planning Board agreed unanimously that the Jan. 4 letter “reflects our position on dealing with the issues and that no further waivers or extensions will be granted beyond the parameters established by the letter.”
The letter also said at that point the matter was the responsibility of the selectmen, not the Planning Board.
At the request of selectmen, Maxfield later wrote to the fire marshal expressing frustration with Graves’ stance. “This has caused us a great deal of unpleasant discussion between Ms. Bertrand, the Planning Board and the selectmen, which could have been avoided if the date was not called an expiration date.”
As the year progressed, Bertrand satisfied 10 of the 11 requirements to fix violations. But the second-exit problem remained.
Why did the second exit above affect the operation of the business below?
Because, said Bertrand, the state inspector told her someone in the downstairs might go upstairs and possibly get trapped if a fire broke out.
She could avoid adding the second exit by sealing off the upstairs, she said, but with the only bathroom in the building located upstairs, she didn’t want to do that.
She then had two options: build an outside stairway escape, or an inside stairway, at a higher cost. Bertrand began making tentative plans for the inside plan.
She did not pursue the outside option because, she said, she would have needed a variance, since an outside staircase would have landed on the holding tanks. And, she said, she interpreted Hartford’s March letter ruling out further waivers to mean she couldn’t even apply for a variance. (A waiver releases the applicant from complying with a regulation, while a variance only allows the applicant to deviate somewhat from the specific requirement.)
Maxfield said last week that there was nothing in the letter to prevent her from applying for a variance for the stairway.
In May, after Bertrand presented a plan for an inside exit to selectmen, they agreed to extend the deadline for completing the work to Aug. 1.
But after pricing out the inside staircase this summer, said Bertrand, she found it was too expensive. With the Aug. 1 deadline at hand, she closed.
Also out of money for attorney’s fees, she put up the signs to try to get her story out to the public.
She said the state had been good to work with. But as for the town, “They’re always saying ‘no’ instead of: ‘You can do it this way.’"
“I feel if other people had been in place it would have turned out differently. They should have left it alone after it was turned over to the fire marshal.”
On Sept. 9 Bertrand received an e-mail from Rich McCarthy, Graves’ superior, saying he would grant her a six-month extension on a permit for adding a second exit.
Bertrand said she would continue working with McCarthy “so I know what the options are for a prospective buyer.”
Regarding the confusion over the May 4 expiration date, McCarthy said last week that his office intends it as the end date for the permit (which can be extended), while the town interpreted it as a deadline for the completion of work.
“There’s a huge difference,” he said.
He also said that typically once a town refers a problem to the fire marshal, his office simply proceeds under its own codes in dealing with the property owner.
As for any overlap in the jurisdiction of the state and the town regarding life-safety issues, he said, towns generally have the right to be more stringent than the state.
Hartford was asked this week to clarify the board’s authority in dealing with state requirements, such as fire safety and health issues. His statement:
“The ‘Woodstock Planning Board Ordinance’ states in paragraph 7B that ‘The board shall perform such duties and exercise such powers that are provided by Woodstock ordinances and the laws of the State of Maine.’ My interpretation is that we must abide by and ensure that all plans presented to the Board meet the intent of Maine statutes and laws. This does include safety and building requirements. Often, questions must be asked when we do not know what a citizen has done or is planning to do or if they have, in fact, researched the laws and statutes that govern their actions that are not specifically stated in a town ordinance. When there is no town ordinance, we use the state statutes as our standard. When a state agency makes a decision for which we do not have an ordinance, we abide by the state decision."
The Site Plan Review Ordinance, paragraph 3i states that ‘A list of applicable local, state, and federal ordinances, statutes, laws, codes, and regulations which must be complied with ...’ have to be included in the Final Site Plan Review document. My interpretation is that the individual is required to provide the board the correct information and comply with each applicable requirement unless otherwise waived. With this information provided and with the knowledge the members have of selected project requirements, the board has a right and an obligation to ensure that all requirements are met. This is done through questioning and reviewing licenses, inspections or other documents from the State or federal governments.
“As for the Fire Marshall, we do accept his findings and time table. What we do not accept is situations where the oral communications between parties does not match the written documents provided. In such instances, the Board tends to accept the written document over the spoken words since they normally have more power in a court of law.
“It should be remembered that the Planning Board is just that - a planning board. We review each project and request to ensure that it meets local, state, and federal requirements. Obviously, we do not know all federal and state requirements but are experienced enough to know when more information is needed or explanations provided. We plan. The CEO ensures that what we approved is in fact completed. When he finds an error, he can request the assistance of the Fire Chief, Fire Marshall, and other state agencies plus the town selectmen.”