China board denies BioFuels’ request to reconsider

by Mary Grow

At a March 22 meeting, the China Board of Appeals refused to reconsider its Feb. 15 refusal to hear two appeals of codes officer’s decisions filed by Bio Renewable Fuels (BRF).

The case began in August 2017, when Codes Officer Paul Mitnik notified BRF owner Ralph Howe that he needed a planning board permit to continue his Dirigo Road operation. In September 2017, Mitnik sent the company a notice of violation.

Howe appealed both documents. At the Feb. 15 hearing, board of appeals members unanimously rejected both appeals on procedural grounds, without going into the merits of the issue.

The rest of the board agreed with Chairman Spencer Aitel that the appeal of the August letter was not filed within the required 30 days, and that the appeal of the notice of violation incorrectly listed the property-owner as BFR, when in fact the company leases its land from Ralph Howe’s wife Linda.

Attorney Kristin Collins, of Preti Flaherty, in Augusta, disagreed with both reasons and objected to the board’s not giving the Howes a chance to rebut them. She therefore asked the board to reconsider its Feb. 15 decisions.

Aitel arrived at the conclusion that the appeal was filed late by counting days on a calendar. Collins referenced state Rules of Civil Procedure that say that the day of an action does not count as the first day, and if the final day of a time period is a Saturday, Sunday or holiday, the next day should be counted as the final day. By those rules, she said, the appeal was filed within 30 days. On the second point, Collins said BFR was the entity to which Mitnik’s documents were addressed, and since the company has a 99-year lease on the land it is the owner for relevant purposes. She added that nothing in town ordinances allows dismissal of an appeal because of an error on the form; in fact, she said, the town does not even require a form, as long as an appeal is in writing, nor does it require the property-owner to submit the appeal.

Board of Appeals members approved motions not to reconsider each previous action by identical 4-1-1 votes, with Robert Fischer, Lisa Kane, Anthony Pileggi and Dale Worster in the majority, Michael Gee opposed and Aitel abstaining.

Aitel told the Howes they may appeal the board’s decisions to Superior Court.