CHINA NEWS: Codes officer should have stopped events until permits were issued

by Mary Grow

The China Board of Appeals, on a split vote, decided Aug. 17 that Codes Officer Paul Mitnik should have required Parris and Catherine Varney to stop hosting gatherings in their Neck Road barn until they get a town permit.

The decision was supported by board members Virginia Davis, Lisa Kane, Anthony Pileggi and Dale Worster. Michael Gee dissented. Chairman Spencer Aitel abstained, as he habitually does when his vote is not needed to break a tie. Robert Fischer was absent.

The motion the majority approved found that the barn, which is attached to the Varneys’ house, was formerly used for agricultural storage. When the prior owner renovated the building and put in plumbing and two bathrooms with the goal of making apartments, he changed the structure to commercial. The Varneys need a permit to continue commercial use.

The appeal asking Mitnik to shut down the gatherings until a permit is approved was filed by the Greater Neck Road Neighborhood Association, represented at the Aug. 17 hearing by Sheri Wilkens. Town Attorney Alton Stevens assisted with Mitnik’s presentation.

Davis’s earlier motion stating that the barn was a commercial structure that under China’s land use ordinance requires a permit was defeated, supported only by Davis and Pileggi. Kane and Worster did not explain why they rejected one motion and accepted the other.

Davis insisted the barn was a commercial structure and suggested the Varneys were attempting to evade the local ordinance. Gee, on the other hand, believed the appellants had failed to prove public or commercial use.

“I don’t think they [the Varneys] are doing anything wrong, in the strictest sense,” he said.

For Worster, a main issue was not commercial versus private, but the testimony of several neighbors that noise from the events bothers them. Aitel pointed out that the board of appeals was not asked to rule on the noise issue; it was raised by audience members, not by the appellants.

In September 2016, the Varneys applied to the China Planning Board for a conditional use permit to use the barn as a commercial venue for weddings and similar events. Neighbors, including the Wilkens, opposed the permit, citing concerns about noise, alcohol consumption, environmental effects from the proposed parking area, traffic on the narrow road and other issues.

In October 2016 the planning board rejected the permit because, a majority ruled, the Varneys did not meet the requirement that they avoid “a significant detrimental effect on the use and peaceful enjoyment of abutting property as a result of noise, vibrations, fumes, odor, dust, glare or other cause.” The major focus was on noise.

The Varneys then asked the board of appeals to overrule the planning board. In December 2016 the board of appeals unanimously sent the issue back to the planning board with instructions to support its decision with written findings of fact, especially in relation to the noise issue, about which there was contradictory evidence. Before the planning board could act, a group of neighbors, including the Wilkens, filed an appeal in Superior Court claiming the board of appeals had acted improperly. The court has not yet rendered a judgment.

Meanwhile, this spring and summer the Varneys have hosted various events in their barn, including a retirement party for four Vassalboro Community School teachers and a birthday party. The Neighborhood Association appeal claimed these events should not have been held without a permit.

Mitnik said he had not acted because he believed the events were private parties, not commercial or public events, and no town permit was needed. The barn has been used for occasional private parties for 10 or 15 years, he said, so continuing them is not a change of use. Commercial use would be a change, requiring planning board approval.

He defined the situation as “just a neighborhood dispute. It has nothing to do with codes enforcement.”

Attorney Stevens, on Mitnik’s behalf, pointed out that under the definitions in China’s ordinance, a commercial structure is a building intended for commercial use, and a commercial use must be intended to produce revenue and must actually produce revenue. Perhaps the Varneys would like to make money from the use of the barn, but neither the appellants nor anyone else presented evidence they had done so, he said.

Therefore, he said, there is no commercial use, no commercial structure and no change of use for which a permit would be required.

Neck Road resident Kathy Cioppa said she organized the Vassalboro retirement party, and the Varneys got no money for hosting it. Attendees were asked to contribute, she said, but the money went to the caterer and to buy gifts for the retirees, not to the Varneys.

Another issue discussed was whether the Varneys needed a permit from the state fire marshal and whether the lack of one raised safety concerns. Mitnik and Stevens said the state fire code is a totally different regulation which most local codes officers, including Mitnik, are not trained and licensed to enforce.

After the decision, Aitel said the Varneys can appeal to Superior Court. Stevens had earlier said an appeal would probably not be heard. Because the codes officer has what he called “prosecutorial discretion” about enforcement, he said the court would probably interpret the board of appeals action as advisory and would not rule on it.

About 50 residents, not all from the Neck Road, crowded into the China town office meeting room for the hearing.