Kennebunk ZBA remands metal roof denial back to Historic Preservation Commission

[0:01] Stephen Sayers: Stephen Sayers present. Brenda Robinson here. Mike Kellis here. [0:07] Mike Kellis: That means that four voting members of the Zoning Board of Appeals are here, and that constitutes a quorum under article 6 section 1a of the zoning ordinance. So we're ready to go unless there are reasons we should not proceed. Are there any potential conflicts of interest that any member wishes to draw to the attention of the chair? No conflicts of interest identified. Any recusals for any reason that we need? No recusals. Actually, I identified the wrong section of the zoning ordinance. It's Article 6, which deals with the Zoning Board of Appeals. Section 1, which deals with our powers. And it's section 1e which requires a vote of four, votes, actually the word is concurrently in the zoning ordinance, whatever that means, but anyway there are four people here at one time and I guess that's concurrency and there's a section 1e of article 6, so there is a quorum to reverse any decision of the HPC, we would only require a majority to affirm the decision of the Historical Preservation Committee. The next thing we have to make clear to everybody is, and just so this is particularly applicable to you who are not lawyers, and it's important to understand what the nature of this appeal is. This is an appeal that is brought under Article 6, Section 2D of the Zoning Ordinance, and that is a very particular type of ordinance because it only confers power to conduct appellate proceedings on the Zoning Board of Appeals. We do not have any power to conduct a de novo hearing, which is as if we're starting all over again. The practical impact of an appellate proceeding as opposed to a de novo proceeding is that no new evidence is permitted at this stage. Our function is to review the rulings made by the HPC and to determine whether they should be reversed for any reason. Typically, there are four reasons why you might see a reversal. They were recently reiterated in a case called Brogdon vs. There are four circumstances under which we can interfere, if you like, with the decision made by the HPC. Brogdon vs. Town of Tremont, which was decided by the Law Court just a few weeks ago in July. We're here to determine, one, did the inferior tribunal, the HPC, make an error of law? And if there is an error, I want you to identify it and to tell us what the basis for your assertion that there is an error. I'm not aware that any error of law has been identified by the appellants in this case, Mr. Sandigati and Ms. MacDonald. But if I'm wrong on that, please let me know. The second way in which the Zoning Board of Appeals can interfere with the decision of the HPC is if the inferior tribunal has abused its discretion by acting outside of its lawful discretion. And if you are saying or trying to contend in this case that is one of the bases for your appeals, then please explain to us specifically how you reach that conclusion. The third way in which the HBC's decision is susceptible to appellate remediation or affirmance is that the inferior tribunal's factual findings are not supported by substantial evidence in the record. It seems to me that 's the principle basis for your appeal, and I might be wrong on that, but please let me know if I am. And if this is the principal basis upon which you are proceeding, I want to know what you contend the factual errors to be and what evidence you are relying upon for an allegation that the HPC erred in making the decisions that it did. And then the final basis for interference with the HPC's decision is that the inferior tribunal, the HPC, has made a procedural error that has denied you to, in some material way, due process of law. I don't think that applies here, but if it does, then I would expect you to explain to us how and what is the basis for that assertion. So do you understand the four bases upon which the decision of the HPC can be set aside or modified or affirmed based upon that four factor test that has been reaffirmed very recently and is frankly well settled law and it's very well known, so do you understand that the basic rules of the game here? Okay, you appear to be pretty sophisticated people. The I will say to you that the presentation that you put together for the HPC was extensive and it was well presented, and with that said, the floor is yours. You need to be at the podium and turn on the microphone if you would, and beware of speaking over each other. Each person should make their presentations clearly, and if the other person wants to make some sort of comment, please wait until the primary presentation has been finished and then you can add to it after [7:09] Anthony Santagati: everything you said. I mean, the way we view this is we were wrong by being told that metal roofs are not historic. Well, certainly [7:23] Mike Kellis: Are historic. Pause there for just a second. What evidence is there in the record about whether metal roofs are historic or not? Bearing in mind one very important thing and I want to emphasize this to you. Yours is the burden of proof on appeal here. So you've got to point us to somewhere in the record on appeal where there's a discussion on historic roofs generally and on the subject that you've just outlined, that the metal roofs are historic, contrary to the assertions of the members of the HPC. I [8:06] Anthony Santagati: mean, the only facts we have is what we've researched. And researching it, we concluded that metal roofs were used well before asphalt shingles. And, you know, slate was another product that was used, wood shingles. [8:29] Mike Kellis: I hear what you're saying, and I don't dispute that you did the historical research, but where is it in the record? As [8:41] Eileen McDonald: a fact, there is nothing that references that it is not. [8:52] Mike Kellis: Well, I just want to point this out as a significant obstacle in your appeal. We don't sit as a super historical preservation commission. It's not our job to determine whether metal roofs are historic or not. It's our job to review the record and determine whether there is evidence in the record that metal roofs are or are not historic, and I'll tell you that, very frankly, there is almost no evidence whatsoever on that particular subject that was presented by you as the appellants. And I'm just reminded by Ms. Robinson that I committed an error and that is you must identify yourselves for the record. [9:46] Eileen McDonald: Eileen McDonald. [9:49] Anthony Santagati: Anthony Santagati. [9:50] Mike Kellis: And is your principal residence 86 Summer Street Kennebunk Main 04043? [9:58] Anthony Santagati: We shared that with another address where are [10:10] Eileen McDonald: you registered to vote Massachusetts? [10:12] Anthony Santagati: We just bought this house in September. Well, [10:20] Mike Kellis: I'll tell you, from my review of the record, which actually includes the recording of the proceedings before the HPC on July the 8th, I only found one reference to metal roofs specifically that was made by you, and that was at minute 57. You said, Mr. Santagati, that metal roofs exist in Kennebunk. In Kennebunk. You didn't identify where, you didn't identify what roofs you were talking about, and you didn't identify why those roofs were historical in any way. That's just a scintilla of evidence, and that wouldn't be enough for us to make any reliable findings one way or the other. We [11:13] Anthony Santagati: did submit, with the appeal application, all those addresses that do have metal roofs on our street. [11:27] Mike Kellis: There, well, yes, you attach those to your papers on appeal, but those addresses were not supplied to the Historical Preservation Commission, unfortunately, during the hearing. And that's what we're appealing from. The findings, in fact, were based upon the evidence that was adduced at that hearing. [11:51] Anthony Santagati: At that time, we were not aware of that we were going to be, that was the least of anything that we were doing that I thought was going to be not approved. Every other item was approved. So we had no preparation with those addresses at the time, unknowing that we weren't going to be approved. So we did, you know, the next step was the Zoning Board of Appeals. And that's when we, you know, researched all the addresses, including the police department across the street has a metal roof. [12:32] Mike Kellis: Again, that's evidence that does not appear in the record. Therefore, there's no way that we can consider it on appeal. I mean, these roofs that you're talking about, for example, they could have been tin, turn tin, treated iron, copper, galvanized iron, zinc. What were they? We don't know. And we're not, it's not our job to uncover that. It's the job of the appellant to show in the record where we can make a reliable determination that the roofs that you were supposedly referring to are actually in existence. And exactly what metal they are, because as you are aware, the use of metals on roofs has evolved over the millennia, and that evolution has been nowhere more accelerated than in the last hundred years, where there are all kinds of different metallic kinds of roofs, just as there are all different kinds of asphalt roofs. [13:33] Anthony Santagati: So how were we supposed to get that information into the Historic Preservation Meeting when we didn't know that we weren't going to be approved? We wouldn't have that information. [13:50] Mike Kellis: Well, you were making an application to the Historical Preservation Commission to replace not like with like but like with unlike, and so it was your burden to prove that the use of metals in Kennebunk was metal roofs was had a historic basis, that it antedated the use of asphalt, for example, that would have been a helpful fact to establish, to identify with photographs the roofs that you were later to mention, and to identify what kind of metals those roofs consisted of, if you could. But it's not enough to come into the tribunal and say, well, you know, there's a lot of metal roofs, there are a bunch of others in the town, and then later for the first time after the proceedings before the HPC have closed to supply addresses without specifics as to what kind of metal roofs they are. I mean, basically, are you aware of any of the roofs? Let's assume that you were applying to put not an Everlast roof on, but a copper roof with seams that are raised. Do you know what I'm talking about? Crimped seams. Are those historical? And if so, what is the basis for your assertion that they are? [15:17] Speaker E (unidentified): are as [15:23] Anthony Santagati: you said roofs all evolve you know and not to make a comparison but i mean the wedding cake house is having extensive remodeling done and they're doing all their trim work and they're not using woods and you know wood anymore they're using composites similar to metal roofs do change. The basic of it still is to preserve a certain look. And I'm not an expert on metal roofs. The one we chose, we did present at the Historic Preservation Committee. We did tell them which one we were going to use. What our neighbors have at 141 Summer Street, 128 Summer Street, 130 Summer Street, 133 Summer Street, 121 Summer Street, the police department, I would have to you know I'd have to do a lot of research knocking on doors I'm not even sure the homeowners even know what type of metal roof they have on well what happens if all of those [16:26] Mike Kellis: roofs were put on last week I'm just posing a hypothetical here would you still say oh there's a historical basis for the existence of metal roofs in Kennebunk because all of these roofs that we're referring to were in place a week ago. [16:46] Anthony Santagati: Aesthetically, all these houses fit in the neighborhood, in the historic district neighborhood. Even the police departments, they all fit into that. So if they were done last week, would I say it's historic? Well, I mean, even historic homes have to be remodeled and have upkeep. [17:06] Mike Kellis: The fact of the matter is, though, Mr. Santagati, that you were asked what the basis for your preference for this roof was. And your answer to the Historical Preservation Commission at minute 1755 seconds into the hearing was aesthetics. And then you went on to say that you, in your opinion, the Everlast metal roof would look, quote, really cute. And that was at 18 minutes and 6 seconds, and that was, it wasn't a claim that metal roofs were historic and the metal roof that you were proposing was consistent with those sorts of historic roofs. It was purely aesthetic, wasn't it? [17:54] Anthony Santagati: And I was trying to match the color of what's there right now. It was a quilt on the roof. There was 7 different colors on our roof, all the patches. In the cottage, which is set back on our property, actually has an orange roof, and we were trying to match that versus the house in a garage. We used asphalt, a gray roof, but the garage had a, the cottage had a completely separate look. So aesthetically it does look as it was historically speaking. It's the colors is very similar, and we tried matching that. Well. [18:37] Mike Kellis: I don't want to dominate the debate. Here is there any questions that my colleagues have up to this point in? [18:44] Brenda Robinson: The here, yeah, I have a, I have a question on the term cottage in your application and your presentation and in the response from the HPC. It's, it's you refer to it as a cottage. Is it living quarters? Is it a residential domicile? [19:07] Anthony Santagati: No, it has its own meter, and the past owners had a bathroom in it. We're just replacing it in kind. [19:17] Brenda Robinson: So it can be used for residential use. It's not a barn. It's not a barn, no. It's not a subordinate building to the main building, so it's just part of the same structure. [Anthony Santagati: Well, it's separate.] It's a separate building, but it's the same use. [19:31] Anthony Santagati: Yeah, 17 by 17. Okay, so that was... We call it the cottage. Because when we bought the house in the driveway in the garage, there's a sign that says cottage. Okay. That's still up today. [19:42] Brenda Robinson: The other thing I wanted to clear up was in your application, you talked about requesting consideration of approval for a reddish metal roof, and yet in the HPC documents, it's called orange. When you applied the first time around, it's called orange. Is there a difference between orange and red from your point of view? I couldn't [20:02] Anthony Santagati: tell from the HPC can be reddish and they don't have an orange metal roof, so it's, it's, it's there's, there's a few different red to choose from, and we [20:13] Brenda Robinson: chose a reddish. So just in conclusion, I'll say from your testimony tonight, it is not a subordinate building, it's not a barn, it's not a shed, it's a cottage that can accommodate people living there, correct? Okay, thank you. Hopefully my [20:29] Anthony Santagati: mother, who's 87, I [20:34] Mike Kellis: thought I saw a reference somewhere in your papers, Mr. Sandy Santagati, that it was burgundy color, not orange, right? Well, it's I [20:47] Anthony Santagati: Forget what the color is. We did submit that it's it's a burgundy, reddish. Burgundy's reddish, isn't it? Okay, yeah. Yeah, burgundy's a reddish color. [20:57] Mike Kellis: But a bit more muted than orange. [20:59] Anthony Santagati: But you couldn't get an orange, so we went with the burgundy. I didn't want a red one. [21:08] Mike Kellis: Well, let me just say this, if I may. Speaking entirely for myself as one of four members here, I see some significant failures of proof on your part, and that may disturb you, but this won't disturb you. I also see actions taken by the HPC that are really not explained anywhere. The HPC basically said these roofs are not historic. That's it. Didn't say why that contention was made. They didn't say whether that conclusion was based upon anything in the guidelines that govern their activity, which they mentioned right off the bat as guidelines they had to follow under the zoning ordinance. These are guidelines of historic preservation. And speaking for myself, I'm disturbed by the apparent barrenness of the findings of fact on that particular issue, which is a fairly critical issue with respect to the denial of your application for permission to replace old, rotted asphalt with a brand-new metal roof of—what is it? Is it going to be aluminum or— [22:46] Anthony Santagati: They submitted what it is. It's an Everlast. I think it's galvanized. Galvanized? And they powder-coat it now is how they make it. Okay. [22:59] Mike Kellis: So that's what we're grappling with, the paucity of evidence that you actually put before the HPC on that particular point. But I understand that you had many requests that you were seeking approval of, seeking a certificate of appropriateness for, only one of which was the roof replacement. And so I understand why you may not have focused a lot of attention on that roof issue. But the fact is you didn't focus a lot of attention on it, and that puts us in a sticky spot even if we completely sympathize with your if you were to be frustrated by what appears to be bureaucracy, but it isn't bureaucracy, it's the power that we have, which is constrained by what the zoning ordinance says, and the zoning ordinance says we are bound by the record on appeal, and we can't reverse the HPC just because we would, if we were HPC members, disagree. That's not the issue. The issue is, there evidence in the record to support the factual conclusions that the HPC reached? And that's where I am grappling with the failure of the HPC to specify exactly what facts it was relying upon. That's my view. I wasn't as thorough. [24:27] Stephen Sayers: As Mr. Sayers, on noting time, I did listen to the tape. At one point, you said it was, you were asked why the metal roof, and your response was, it's my desire to have a metal roof. That's a quote, which I found very interesting. That particular section wasn't focused on historical issues. It was focused on your desire. And what I had in terms of paperwork, I could not find that there's a ton of planning. I did hear some things in the comments about the various kinds of roofs, the various kinds of metals. But I couldn't find much in the documentation about the metal roof and the historicness. I know there are many metal roofs here in town. But I've not heard of it being referred to as historic. Sometimes it's slate they're referring to. Sometimes it's a long-ago composite of, oh, maybe fabric, maybe felt, maybe felt mixed with other materials and overlaid with some stones or so forth but I didn't I didn't hear a con a constant referral to the historic I [26:12] Eileen McDonald: think go back to what we initially said when we presented all the materials to the Historic Preservation Commission we had a very large binder and we had multiple photos of multiple things that we were doing with lots of information and this was again maybe you know we didn't have that information because we did it consider that it wasn't going to be approved as Anthony mentioned so we really didn't put forth that information and then this was the part of the next process that we were told needed to happen in order to get some type of next step so that we could proceed putting pure legalities [26:56] Mike Kellis: aside would it be devastating to you if you were not permitted to put a metal roof on the cottage and if you were required to replace like with like in other words whatever kind of asphalt tile is there right now would be replaced by a more modern asphalt tile be a financial burden where we've already [27:19] Anthony Santagati: you know we put the cart in front of the horse when we contracted with ruck roofing from Bitterford and we had a we had a you know he told us it was a long lead time and getting it we purchased it so we own we own a metal roof materials we haven't paid for the labor on it but the materials aren't returnable and when I did say that I wanted a metal roof I mean to me I did and I still do because aesthetically I think it's it complements the historic look of our house and everything we're doing There I think complements each other. We've put a lot of time at effort and in sweat equity right now into this is we've been doing a lot of work ourselves. And I actually think this roof would complement not only the property, but the neighborhood. [28:23] Mike Kellis: But that's, if I may say so, one of the key weaknesses in your arguments. That's your opinion. [28:31] Anthony Santagati: And I feel the historic preservation solely stated their opinion, that they didn't like it. They told us about how they didn't like it. [28:40] Mike Kellis: They're the appointed representatives of the town to make decisions in the area of historic preservation. Article 12, Section 1 says there shall be a Historic Preservation Commission consisting of five members and two alternate members. The members of the commission shall have a demonstrated interest, knowledge, or training in fields closely related to historic preservation and shall be appointed by the municipal officers. All of the members of the Historic Preservation Commission have that training, have that experience. [29:10] Anthony Santagati: None of them stated why it was not historic. None of them told us why it was not, other than they didn't like metal roofs. And somebody, the biggest metal roof in the historic district, I guess, did it without taking the product. [29:24] Mike Kellis: They actually said one additional thing, and if I may draw this to your attention. They said that a metal roof would not be complementary to the property considered as a whole, because it would stand out like a sore thumb as being the sole metal roof that is on all of the structures on your property. I think you all agree that there are quite a few structures on your property. Three. Three, and all of those have asphalt roofs, right? [29:54] Anthony Santagati: Yeah, but one of them had a different color. The main house had a quilt on it. From all the years of repairs, they never did the entire roof. We've replaced the entire roof since then. The only thing we haven't replaced is the orange roof on the cottage. [30:13] Mike Kellis: Okay, well, the reason I raised that practical question as to whether it would be deleterious to your plans for the property to be confined to an asphalt roof is just think of the process. Let's say that we were to agree with you that the findings of fact made by the Historic Preservation Commission and that they aren't sufficiently specific with respect to the facts upon which those findings are based. Let's assume that. What's going to happen? It's going to get remanded to the Historic Preservation Commission with all of the delays that are attendant to that, and we can't direct the Historic Preservation necessarily to do something or not to do something. We can just remand it for further consideration, having pointed out the errors in the decision process that they made. That's going to take more time, and they could still disagree with you, and they could deny you the metal roof that you so ardently desire. In that case, what are you left with? You're left with maybe an appeal back to the zoning board of appeals again. Obviously, you would have heard what we said tonight, and you'd be in a far better position to put your case before us. We're talking months of delays here, and is that what you want? [31:42] Anthony Santagati: No, but I don't want to... [31:45] Mike Kellis: I mean, I know you're caught between a rock and a hard place. [31:46] Anthony Santagati: I don't want to eat thousands of dollars on my roof either. Exactly. And I feel like we've done everything properly, unlike some other people who have just put them on. You know, we're trying to do the correct thing here, and it is a very small roof on our property, and you only see one side of it, as it's as it's a shed roof, and you can only see one side of it, which is 17 by 10, and from one angle you can't even see the roof coming up the street when you're heading when you're you're heading westbound on Summer Street, you can't even see the cottage unless you go by a house and completely look back. Coming eastbound, you can only see it when you... I forget the name of the street right next to it. You can only see it after you pass those big trees. You can only see one side of it. And it's set back from the road 130 feet. And the other side is completely covered with trees. You can't even see the backside of it. You really only see one little section of Roof, which right now is orange. Yes, We're looking to do the right thing, we want to continue this process. No, but I Feel like we have, we're not attorneys, but I feel like we've done our due diligence to prove our case, and I feel like that, you know, we 're doing a lot to improve the history of the house, and a lot of it is aesthetics, and a lot of it is our Opinions, because it's our home. We love it, We bought this home and we love it, and we're doing everything we can to improve it and preserve drive by it just about every day [33:43] Mike Kellis: And I mean, subjectively, I can tell you that I think you've improved it vastly. Yeah. [33:51] Anthony Santagati: We have Angus out there scraping the paint because I didn't want to replace the old clapboards. I wanted to keep them. We won't use the sander on it, and Angus is out there chipping away the paint so we can get that all preserved. [34:07] Mike Kellis: Nonetheless, your principal motivation is aesthetic, and you think it would look, as you said, really cute, and in a contest where your subjective opinion comes up against the subjective opinion of the collective of the HPC, I'm afraid you're not going to be winning that. The aesthetics of it are basically the ultimate decision to approve or disapprove of that, based upon pure aesthetics, is going to be the HPC's. And so that brings us back to the other point that you were making, which is that you criticize the factual findings that were made by the HPC because they were insufficiently specific as to why the HPC uttered the apparently uncorroborated conclusion that metal roofs were not historic in Kennebunker. That may, that may be true. On the other hand, it may not be. And as the people who are the custodians of historical accuracy in the town, the least that you could expect of a historic preservation commission is a detailed explanation or conclusion that is the foundation of their decision on this issue. Would that be fair to say is the argument that you're making? [35:36] Speaker E (unidentified): You just [35:41] Stephen Sayers: Recently, while you were speaking, made a comment about some of the metal roofs are quote legal, some may not. Do you know of roofs in town, metal roofs in town, that have been placed without historic preservation commission? [36:02] Eileen McDonald: Actually, if you, sorry, if you listen to that hearing, they themselves mentioned that and they also specifically kind of went back and forth saying that they did agree or didn't agree and couldn't agree in that specific meeting. [36:20] Anthony Santagati: That is a very large one and then right next door to that one is a is a massive solar panel that's on a roof that's a whole different issue do we know [36:37] Eileen McDonald: Specifically which ones no we can't we could not but we could look into that [36:42] Anthony Santagati: Well it's in the last meetings of the minutes of the meeting on the last one [36:48] Stephen Sayers: Can you identify any roof in the historic district that has been put on without approval? [36:57] Eileen McDonald: That's the question. We would have to look into it. No. Okay. Yeah, everything's public. You can look into all the records. That's a lot of work, Eileen. [37:06] Mike Kellis: Oh, I know. That's a lot of rickles to look at. This is a lot of work. [37:11] Anthony Santagati: We don't know when. I mean, some of these roofs could be 30, 40 years old. We don't know. [37:16] Mike Kellis: But that's not what you said. Right back to the matter is that you didn't try to find out when those roofs know what I said was I repeated what was in that [37:27] Anthony Santagati: last meeting that was said by the historic Commission about a roof being [37:31] Mike Kellis: put on they stated that well not I think put at its pithiest your factual position is what I just stated, which is that the least that you can expect of the custodians of historical integrity of the town, when they're asked why a particular proposal is denied, to get a factual explanation for their conclusion that metal roofs are not historic. Anyone else have any opinions on this or any questions? [38:22] Brenda Robinson: I have a question for you quickly. You made a few minutes ago you made a comment about sticking on like a sore [38:29] Mike Kellis: thumb was that was that was my paraphrase okay [38:35] Speaker E (unidentified): should [38:38] Brenda Robinson: we as a board I don't have any questions for the applicant right now they're gonna be here anyway should we as a board go through and talk about those four areas [38:49] Mike Kellis: of possible yes but I think we should make sure that the appellants don't have anything further they want to present to us. Do you have any other arguments you want to make other than the ones that we've covered today? [39:05] Brenda Robinson: I want to reserve the ability to go back and talk to them with questions about once we get into the discussion of some of the statements they have just made in their presentation tonight. [39:19] Mike Kellis: One question I've got for you is actually just a pure matter of interest. Apparently, structures on the property burned down in 1854. Do you know whether all of those structures were burned down, and specifically the cottage? No. [39:38] Anthony Santagati: Good. No, we don't know specifically, but we do know from the remodeling work that we're doing that the timbers in the wood are still there. Inside the cottage is all charred. We only replaced the ones that had to be replaced. And the other ones are charred wood becomes you can't buy that kind of wood it's like steel so I don't know I definitely know the cottage was on fire our neighbors had mentioned that the main house was also on fire but we haven't seen those walls to know what the timber's like [40:19] Mike Kellis: Apparently the historic preservation commission did its own research to determine that the structures had burned down. The cottage was on fire. It certainly would be a reasonable supposition that the devil was in the roof and on it was destroyed in that fire. So what the roof was before 1850, the 1854, not relevant. That was before any zoning ordinance occurred. It doesn't really matter what it was. In terms of the asphalt roof itself, is there any evidence in the record which would tend to suggest what kind of asphalt roof? There are many different types of asphalt roofs. Asphalt has also been an evolving technology over the last century, I guess. [41:40] Anthony Santagati: Yeah, I mean, the biggest change in asphalt shingles is the design on the free tab [41:50] Mike Kellis: There isn't any evidence of when that actually happened. [41:53] Anthony Santagati: No, we have no idea. [41:54] Mike Kellis: Other than anecdotal evidence, which we don't really want to get into. [41:58] Anthony Santagati: We have no information on that. Any other questions? Do [42:07] Mike Kellis: you have any questions for us? We will then proceed to consideration of the four factors that are outlined. That's what we've got to determine as our job in this appeal. deal. And you're welcome to listen to our deliberations. And if you want to say anything after those deliberations, we'd be happy to hear it. [42:41] Anthony Santagati: How it would be seen, but again, I wanted to, I did point out to them during that meeting that it's not the main roof, it's not the garage, which has a big roof on it, and it's a very small area. [42:54] Mike Kellis: We've read the, or we've listened to the transcript. Yeah, and you've made those arguments, I know. Those were essentially subjective arguments representing your viewpoint, and I think it would be fair to say that the HBC disagreed with your subjective opinion. Let's take up... [43:22] Brenda Robinson: I do have one question for the applicants. When you were preparing your presentation to this board, did you have access to the recorded chair has referred to it as a transcript and actually it's just an audio recording it's an audio recording did you have access to that recording I know that it existed when you were preparing your presentation to this board so you could refer back to something other than in your recollections of being at the meeting? [43:57] Mike Kellis: Did you ask the town whether you could get a copy of the recording? [44:17] Brenda Robinson: Do we as a board know? Do we as a board? You went and searched it out. I did. It is not available online. [44:25] Mike Kellis: I think it is now. It has only become recently available. [44:29] Brenda Robinson: It was not available online when I went to look just a couple of days ago. Okay, the last audio recording on the website is 2017. That's what's listed. Three days ago is long after these people sought to present a case and they had nothing to refer to as far as the record goes from that other than the findings of fact and the minutes that were put out. Is that correct? In other words, was anything available to them other than findings? That's [45:20] Mike Kellis: Correct. I was the one that made the request to Mr. Schlageck to get hold of a copy of the recording, and he did, and it was about three days ago that it first was provided to me on a little thumb drive. I would point out, however, that it's regrettable that it was not available to you, too. Anyway, any other questions for the appellants? Right. [46:06] Brenda Robinson: I suggest we go through the four areas that you discussed earlier in the evening, beginning with the – one of the first areas you discussed was, there an error of law? [46:19] Mike Kellis: Actually, we do need to – the best way for us to proceed is applying those factors recently articulated or reaffirmed in the Brogdon case. The first one is the appellants – whether there is – whether the HPC made an error of law. Are you contesting or are you contending that the HPC made an error of law? I didn't think that you were. If you are, I'd like to know what it is, but I haven't heard it tonight. I mean, you're focusing on the factual findings and the absence of any corroboration or cited support for the conclusion that this that metal roofs are not historic, so the first the first factor has not been made out. Looking at the second factor, this is that the HPC has abused its discretion by acting outside of its lawful discretion. I'd like to ask you whether there that you are making any contention that is indeed the case here. I have to say I could not understand how the HPC would be acting outside of its lawful discretion when determinations regarding certificates of appropriateness are specifically conferred upon the HPC under Article 12. Well, the recording lasts about an hour and seven minutes, and it looked to me, speaking subjectively again,, that the members of the HPC are doing their best to grapple with the facts. [48:48] Brenda Robinson: A more direct question is, I guess, is do you do not contest the fact that the HPC may have abused their discretion? Do not contest? Neither one of you can test that? Okay, thank you. The [49:04] Mike Kellis: third factor is that the inferior tribunal's factual findings are not supported by substantial evidence in the record. And that's the essence of your, that's the target of your appeal, right? Your position, I'm paraphrasing, is that at least that you could expect if the HPC was going to be relying upon factual findings like that for them to state what the facts were upon which those findings were based. You didn't hear any, you didn't see any in the findings of fact that were approved by the HPC. Last one is the inferior tribunal has made some procedural error that denies the appellant's due process factor, but you're not claiming that there was any denial of due process here, I take it? So it's the third factor that we should be looking at, that the inferior tribunal's factual findings are not supported by substantial evidence in the record. I'd like to solicit the views of each member of the... [50:37] Brenda Robinson: There's been a lot of use of the word tossed around, historic. I could not find anywhere in the documents that they're required to use, reviews, which is the 2002 criteria for their review of questions before them. Or in the 1983 or any of the other updated Department of Interior guidelines, that though the Department of Interior guidelines goes into greater detail about what it considers is historic and how history or historic things pieces may have evolved and still be considered historic unfortunately there's no definition of historic in our documents and our zoning ordinance anywhere certainly the references to roofs in the Kennebunk historic preservation overlay district guidelines that I'm reading From page 38 and page 55 and 56, there is no mention at all about metal roofs in there at all, even though clearly metal roofs existed in 2002 or just prior to that when this guideline was adopted. And as a side note, I grew up in a house built in the 1700s which had a metal roof over the original wood shingle sheathing. And spent summers at my grandmother's house, which had a metal roof over wood shingles. So we know the evolution there was the wood shingles original, the metal roof came after that. The question is, what makes it historic? I guess that's what gets in my head is if the town and the HPC did not get into the meat of what is historic, how do they know that it's not historic other than a subjective point of view from the three members who ended up voting on this? And they, from what you have said, and I didn't have the opportunity to read the audio, to listen to the audio, So they did not provide any background, and maybe you can elucidate us on both of you who have listened to this can say, yes, they did, or yes, they did not back up their assertion that metal roofs are not historic. That seems to be the quote, and it was also documented in their minutes that we received. It was not metal roofs are not historic, but they didn't say why. Or they didn't say when they were not historic, because clearly on the evolution of roofing, metal was a part of roofing at some point, whether it was historically documented or whether it was historically, meaning documented in the guidelines, which I didn't find anywhere, or whether it was just a passing, I can't call it a fad, because it was a fact of how roofing was done for a long time, still done that way. So it's a question of they spend a lot of time talking about slate. The first introduction to roof says today most of the roof material, I'm quoting from the guidelines, today most of the roof material in district consists of asphalt shingles and shades of black gray brown and green. A few original slate roofs remain. Several structures have new wood shingled roofs. Nothing in here about metal roofs, and yet we know that metal roofs exist in town in different places, perhaps not in the historic district, and if that's all that this is intended to cover, then you know, maybe that's, maybe that's, it was, it was a minor, a minute area that they chose not to cover, but they covered a lot of other things in detail, so I find it odd that they didn't cover metal roofing. So that was my, that was my observation was that in reference to item number three that we're talking about, I guess, is findings of fact supported by evidence, and if you can either, if either one of you can, you know, give us a little more detail on what was said during those discussions, that I welcome that input from [55:10] Stephen Sayers: the tape. There is nothing that defines that but metal roofs. There is no definition in any of our documents, the town of Kennebunk's documents. I got online, you all know I love research. I could find nothing in the national guidelines. I went through national guidelines. There is no definition of what's historic. And if you are an ancient history person,, metal roofs existed way before this country was founded. I think this is a judgment call, but I think that makes it historic. If China and India had metal roofs before this country was founded, it would make sense that it is historic, regardless. But as a town of Kennebunk, we do not have a definition. [56:19] Mike Kellis: Looking over the comments that were made by the Historic Preservation Commission, the HPC basically stated that it was obliged to adopt the Secretary of the Interior's guidelines and standards for rehabilitation, the 1983 document they refer to as its own guidelines, as well as the document entitled Kennebunk Historic Preservation Overlay District Guidelines, the 2002 documents. No one from the HPC cited any provision of those documents that dealt with metal roofs, let alone cited such a provision as support for the conclusion that metal roofs are historic. [57:03] Brenda Robinson: Did they discuss metal roofing? Yes. [57:06] Mike Kellis: They discussed it at minute where it's hard to understand because everyone was talking at once, but they basically said metal roofs exist, but this is where you made the observation, Mr. Santagati, that metal roofs exist, but you didn't know what the address is. Minute 58, 25 seconds in. Historically, metal roofs were used on barns in Maine. Minute 58, 46 seconds in. Metal roofs were used as far back as the 1840s. That would seem to indicate that there's some anecdotal basis from the HPC that recognized that metal roofs have been used back as far as the 1840s, and therefore the conclusion would seem to be inescapable that there's a basis for asserting that metal roofs are historic, not that they are not. And even though we can't consider additional evidence that was not contained in the record, as an academic exercise, I took a look at whether it would be easy or hard to research the history of asphalt roofs and metal roofs in the United States generally and Maine in particular. And I found plenty of source materials that could have been used and could have been cited, but that can't be considered in this appeal. It's just anecdotal for purposes of what we're about today. But the long and the short of it is, I couldn't see one specific fact that the HPC cited for its conclusion that metal roofs were not historic in Kennebunk. Everything that was said seemed to indicate the reverse. And I think that in fairness to the people who are making the request for what appears to be a fair use of their property, they're entitled at the very minimum to an explanation why that request for fair use was denied. Are [59:43] Stephen Sayers: you suggesting that the applicants go back and ask for that at this point? [59:48] Mike Kellis: No, I'm suggesting that if there's no further discussion on this matter, we should make a decision. The conclusion of the HPC is based upon findings of fact that are wholly inadequate, and that we should remand this case to the HPC to do their jobs, which is to do the historical research necessary to come up with the conclusion that metal roofs are not historic minimum that you are entitled to expect how insufficient detail to enable this tribunal or the Superior Court to review it to determine and whether factor three of the Brogdon test has been met. [1:00:37] Stephen Sayers: Well, I agree that all of that needs to be done. What does that do to the issue on the table at the moment? [1:00:46] Speaker E (unidentified): We have to vote on it. Yes. [1:00:48] Mike Kellis: We do, and I'll make that motion. So [1:01:00] Brenda Robinson: I have to disclose that I guess I should disclose that I've been a builder for more than 50 years, and I put on all kinds of roofing. Asphalt rubber and metal so it's all while it is historic from my point of view it is historic as I've seen a lot of old roofs it is still being used today and in fact metal is probably becoming making one of the bigger comebacks than it has for a few decades so I don't believe that prejudices me in any way but I just want to make sure the rest of you understand that I come from a background of I'm not a roofer but I have done a lot of roofing so if [1:02:04] Mike Kellis: This gets remanded to the HPC I would suspect that you'd have the opportunity to make that point proper historical research and introduce that research into evidence in the on the record you have a motion on item number three yes I make a motion that the findings of fact by the Historic Preservation Commission are wholly inadequate and that this case should be remanded for further proceedings before the Historic Preservation Commission and the application made for a certificate of Appropriateness to replace an old asphalt shingle roof with a new metallic roof was denied and should be denied if it is going to be denied. [1:02:58] Stephen Sayers: I hear two motions there. Okay. I hear a motion on their application and a motion to the HPC that they do all of the things that you have suggested, which is after the fact. [1:03:17] Mike Kellis: I think I may have made the motion overly complicated. Let me see if I can simplify. Okay. I move that we remand this case to the Historic Preservation Commission. Supply factually sufficient findings of fact findings of fact that are contained in the document signed by the HPC are wholly inadequate to explain to the applicants why all the [1:03:52] Brenda Robinson: metal roof was denied no I understand your motion it's It's confined strictly to the metal roof question, not anything else in the decision or the certificate of appropriateness. [1:04:09] Stephen Sayers: No, it doesn't make it any more clear to me. [1:04:13] Mike Kellis: Then why don't you reformulate it? [1:04:15] Stephen Sayers: Because I really think it's two motions. If it has to meet this, our documents, their rejection is not supported in the record because there is no historic record. So that's one question. And then the other question is the rest of what you said that the Historic Preservation Commission has to attend to this matter. All of it. Does that make sense? Yes, it does. Okay. [1:04:50] Brenda Robinson: So, do you want to hold your motion for a moment? [1:04:55] Mike Kellis: I'll withdraw that motion. And I think that the first one should reflect the exact wording of the Brogdon decision, which is addressed as substantial evidence in the record. [1:05:19] Brenda Robinson: That's the second part, though. [1:05:20] Mike Kellis: We should reverse the decision because there is no substantial evidence. [1:05:25] Brenda Robinson: Okay, so that's going to be the meat of the motion, Jim. Yes. We're going to reverse, we're going to support the applicant's position that there was not, I mean the applicants have stated that they are contesting, factual findings were not supported. [1:05:45] Mike Kellis: Yes, there are factual findings, specifically factual findings 1, 2, 3, and 9. The motion is that the HPC's decision on July the 8th, 2026. Does anyone have a copy of the actual findings? Here they are. I move to reverse the findings of fact 1, 2, 3, and 9 of the Historic Preservation Commission because those factual findings are not supported by substantial evidence in the record as to the broad brush conclusion that metal roofs are not historic the [1:07:15] Brenda Robinson: discussion of that motion I just make sure Jim has got it as [1:07:24] Mike Kellis: okay so that the [1:07:33] Brenda Robinson: four the four votes under this under the article six then we can reverse it by those four votes yes I just want to be clear as we're operating under our [1:07:47] Mike Kellis: article 6 section 1e the second motion we need to grapple with not the first preservation commission that we've had the decision, that we've had the obligation to review, not the first one where findings of fact have been inadequate. We need to send a very clear message to the HPC that they've got to do a better job in substantial evidence in the record to support their legal conclusion. Failure to do so will, every time, result in a reversal. And we don't expect to see remands of cases or decisions that have broad-brush findings of fact like this. If they're going to make findings of fact, make findings of fact. Don't just try to disguise a broad-brush conclusion as a finding of fact. Any [1:09:07] Brenda Robinson: observations? MR. I want to know which approval – I know you said it before, but the approval criteria that we are directing them to review is one where they said it where they said it's not historic yeah okay one two three where the same conclusions [1:09:23] Mike Kellis: are articulated and nine two [1:09:28] Brenda Robinson: three and nine right we're all for example [1:09:32] Mike Kellis: nine only says the proposed metal roof for the cottage is not approved right okay why that's a clear statement right but there's no facts of cited to support that I'll [1:09:49] Stephen Sayers: second the motion well there's no motion yeah well I thought [1:09:53] Brenda Robinson: you were making a motion I mean I heard I heard the term substantial evidence in the record to support their decisions right that I think that's a clear statement and if you want to add their decisions regarding approval criteria one two three and nine that I think that's a that's a reasonable motion to send it back to them with direction on which approval criteria they should be looking at. [1:10:17] Mike Kellis: Okay. Then I move to remand this case to the Historic Preservation Commission as to approval criteria 1, 2, 3, and 9, with specific instructions to make specific findings of fact that are based upon substantial evidence in the record rather than broad brush conclusions. [1:10:45] Stephen Sayers: for a second. I'll still second it. Any [1:10:49] Mike Kellis: further discussion on the motion? All in favor of that motion? Thank you very much, Mr. Santagati. [1:10:59] Brenda Robinson: I want to do a little housekeeping before we send them away. Just to clarify, for the record, they have shown to be the owners of property 86 Summer Street because that they have provided us a receipt seat where they paid the town clerk for this. So it's timely. And it's done timely, correct. Okay, so is there anything else we need to house keep to make sure it's in the record? No, I think we should [1:11:30] Mike Kellis: basically say that the ZBA has found A, that the appeal was timely filed. B, that we have jurisdiction over this case. C, that there's a proper quorum because the reversal is involved in this case and it requires a quorum of four, and we have a quorum of four, and that the appellants have standing because they're the owners of record of the property of issue. [Speaker E (unidentified): All in] favor of making those statements of fact? [1:12:06] Speaker E (unidentified): Part of the record. Yes. I [1:12:13] Stephen Sayers: Might make a suggestion, not a motion, but that the all three motions or comments that you have made, including the last one, be forwarded to the HPC because I'm not sure that they are aware of the complexity of what we have to deal with and the positions we have to take. [1:12:39] Mike Kellis: Well, the ultimate test of the adequacy of factual findings is whether they explain the precise basis, based upon substantial evidence in the record, for the legal conclusion. [Speaker E (unidentified): And I] have to say that the conclusion that quote, the proposed metal roof for the cottage is not approved, unquote, is entirely inadequate to give us any notion of why the HPC did what it did. [1:13:10] Stephen Sayers: I think that's true, Steve, and I would refer that to the second motion. I'm not sure that they know that we have to address things before items. Is there an error of law? Are they acting? I'm not sure that they understand that- [1:13:27] Brenda Robinson: They don't know the appeals process. [1:13:28] Stephen Sayers: They, no,. The appeals process and what it's limited to. [1:13:37] Mike Kellis: Holding in this case, I think that situation is We [1:13:44] Brenda Robinson: clear in the motion that we were discussing I know it was clear in the record, but were we clear in the motion that we were discussing We did So if that's in there, then that's four items that we were looking at Three is the only one that was contested by the applicant And the other three That's okay [1:14:16] Mike Kellis: Senator Gatti and Ms. McDonnell, I trust that you feel as if you've had a fair hearing. You can't ask for more than that, and nor can we. Thank you very much indeed. [1:14:29] Brenda Robinson: So just, you know, for the record, you need to go back to HPC. Is that clear? But also because of the decision we make, a party to this action may appeal our decision to the Superior Court in 45 days. days, that party would likely be the town of Kennebock as a body, not just the HPC. [1:15:12] Mike Kellis: Just looking at the worst-case scenario and the best-case scenario for you. The worst-case scenario is that there's going to be a 45-day period in which our decision remains subject to a further appeal to the Superior Court. It could be filed on behalf of the HPC by the town, or it could be the town. But there's going to be a delay of at least 45 days before that situation is clarified. Is there going to be an appeal? [1:15:51] Brenda Robinson: Or it could be that you go back to the HPC and they review the case and come up with another decision. But then that 45-day period, then that puts you back on the block for making the next move. [1:16:13] Mike Kellis: No, you have to go back to the commission. In the interim, you folks quite obviously have the capability of doing the research that we've done. The research is there. It's easy to do, and I think that you don't need to put too much time and effort into it, but I don't think you're going to have the slightest difficulty establishing that metal roofs are historic. There is a basis for historic roofs in Kennebunk. Thank you so much. Appreciate it. Yeah. So that brings us to the question of minutes. The last hearing, we had some changes to be made, and I think we've got five sets of approved minutes now. Could you just read into the record, Jim, the dates of the minutes that I'm going to ask the board to authorize me to sign, okay? [1:17:54] Speaker E (unidentified): I can read off the dates if you want. January the [1:18:13] Mike Kellis: 21st, 2026, March the 16th, 2026, April the 21st, 2026. So [1:18:40] Speaker E (unidentified): all [1:18:47] Brenda Robinson: right [1:18:58] Mike Kellis: Let's take it one step at a time. For the minutes of January the 21st, 2026, March the 16th, 2026, April the 21st, 2026, have all of the changes submitted by the individual members been incorporated into these? All right, can we take a vote on whether I'm authorized to sign these on behalf of the board? Seconded by Mr. Berry. All in favor? For zero. So I will now proceed to sign these minutes. I'm [1:19:32] Stephen Sayers: going to make it, I'm going to ask a question. I should have made it sooner. I think it's the secretary who signs them, but, yeah. [1:19:46] Speaker E (unidentified): That's true. That was easy for you, wasn't it? [1:19:50] Stephen Sayers: We'll clarify that before the next meeting. [1:19:55] Mike Kellis: Let's have a friendly amendment to the previous motion that we authorize the secretary, Mr. Berry, to sign these minutes on behalf of the board as opposed to the chair. Is there a second? Second. All in favor? [1:20:15] Stephen Sayers: That comes from site plan review law. [1:20:18] Brenda Robinson: I will have these signed and to you before we leave, Jeff. [1:20:23] Mike Kellis: And, by the way, I would be remiss if I did not bring to everyone's attention the heroic efforts made by Mr. Schlageck in bringing these minutes together, most particularly the minutes of the September the 10th meeting, which I've reviewed and given in my comments on. They are extremely well done. And we would be at a serious disadvantage if we were to be deprived of his services. We're almost caught up. Almost. [1:20:52] Stephen Sayers: I'll second that. [1:20:55] Brenda Robinson: I'll third that. Fourth that. [1:20:59] Mike Kellis: I don't know how you do it. [1:21:01] Stephen Sayers: That's unanimous, Jim. That's a unanimous vote, Jim. [1:21:07] Anthony Santagati: He's ignoring. I don't know when you want to do this. [1:21:10] Mike Kellis: These that I read along, there's five sets now. [1:21:14] Brenda Robinson: You've already had this, but you haven't approved it. Correct. [1:21:20] Mike Kellis: So do you propose to do that at the next hearing that we have? I suggest that we address those right now because those have been circulated to us for some time. Is there any member of the board? I've, I've reviewed them again and I made some additional typographical suggestions because I can't resist fiddling with things when they give an unlimited opportunity to do so, but I've done that here. Does anybody have any additional edits that they want to make to those five, six sets of minutes that you rattled off? [1:22:03] Stephen Sayers: September 10th, I haven't either, but I do have a couple of others. They're very small and I'll give you the post-it. Okay, right, correct, I just found a couple today and they're just typos. I [1:22:38] Mike Kellis: suggest we wait until the next meeting. [1:22:45] Speaker E (unidentified): What's the, what's the outstanding issue, Great Hill Road, that [1:23:01] Mike Kellis: that was sent back? Have there been any appeals noted of the decisions that we've been pumping out? I [1:23:14] Brenda Robinson: suggest that we take up these minutes, do that, we talk about the bylaws that Mike and Doug Frazier have worked on. So I agree that we perhaps should look at the application form that we give to everybody, make some changes, suggestions, some improvements to it that will make it easier for anyone who comes in front of us from wherever they have to come from, that they have a better understanding of what they need to give to us to present to us so that we can do our job better than we've been able to do it without the hours and hours that particularly the chair has put in researching the documents that could have been, should have been provided to this board by the applicants, provided they're available, which again is another issue about, and it's nothing to do with Jim, it's just got to do with how the boards create their final decisions, with findings of fact or minutes or whatever they use. It's just difficult for us to sit up here. I find it difficult for us to sit up here and try to make judgments when you've got little to work with. [1:25:00] Stephen Sayers: I agree, and I did do the research that I promised you, at least half of it. There is nothing in Maine law that refers to withholding the findings of fact from an appellate board. And Chris Osterreiter said, yes, you can't put it in. [1:25:18] Mike Kellis: Well, you can. How can you not? Oftentimes, we as an appeal board are asked to adjudicate. [1:25:27] Stephen Sayers: But you can't do those four items without having absolutely no [1:25:32] Brenda Robinson: From my point of view, it becomes a matter of due process. Yes, if the board that's being appealed is not following through on there and what they're supposed to be doing, then who is denied due process? Is the appellant denied due process, or is it merely a glitch in the system that it doesn't allow us to get the information? We have had such a change in, you know, Jim was great. He was here a long time. He decided to retire. And then we had a whole bunch of other things in the middle that a lot of stuff didn't happen, and now Jim is back. So he's, I mean, the worst case is Jim's trying to catch up, right? And the Herculean job, I have to say, is just trying to figure out what went on, never mind trying to catch up, just trying to figure out what went on. But at the same time, the records that Jim has available to him are not sufficient for him to present us with anything. And I'm not even sure he should be the one presenting. I think the document should be coming from wherever it comes from. From the appellant. Well, no, those documents should be available to the appellant, but if they're not available, then... [1:26:45] Mike Kellis: Well, just consider what happened tonight. Exactly. Not having the recording available deprives them, really, of the ability to cite to us specific evidence in the record which might have supported their position, and they were deprived of the opportunity of doing that because they didn't have the recording. Anyway, I would say the current application form for a public hearing by the Kennebunk Zoning Board of Appeals is woefully inadequate because it omits a seventh item, which is absolutely key, all written decisions and related findings of fact that are relevant to this appeal. That's at a minimum what should be in there. And then when you look at the reverse side of this document, just consider this, my colleagues. Administrative appeal from another board. I hereby request a hearing before the Kennebunk Zoning Board of Appeals in accordance with Article 6, Section 2D. Well, a 2D appeal is an appellate proceeding. It's not an administrative appeal in any sense whatsoever. So I think that this shouldn't be titled an administrative appeal from another board. There should be two forms. One should say, they should both say notice of appeal, and that way we don't have to go flying through multiple documents to figure out what the trigger date actually is. We can just count 30 days or 45 days from that date, and we're good. But there should be two types of appeal. There are administrative appeals, which are of the Code Enforcement Office's decision, and on variances. And there are 2D appeals, which are appeals from another board. And those two documents should be kept separate and not mixed and matched like they currently are. [1:28:47] Brenda Robinson: Well, I mean, that was the simplest way to do it, so it sort of covered everything, but it really doesn't cover the things it should cover. And my biggest concern is for the people who come in front of us is that how many times have we heard is they really don't know what they're supposed to be bringing. [1:29:02] Mike Kellis: Don't they're not prepared, and that means we're not prepared because we don't have things that we absolutely need and are entitled to have as a predicate to considering the appeal that [1:29:23] Brenda Robinson: was [1:30:03] Speaker E (unidentified): the 19th of October, right, the point [1:30:28] Mike Kellis: was made in that last hearing that the code enforcement officer, my way of thinking, does that make sense, is that really what the zoning ordinance really, it is, it is, why I kind [1:30:49] Brenda Robinson: of interpreted it that he really only needed to be here when his exactly his decisions were being questioned, but that's not what it says, right, but that's what it says, right, and I think we should [1:30:59] Mike Kellis: suggest to the town perhaps that 's certainly one provision of the zoning ordinance which should be amended it should say in all administrative appeals under the relevant section the code enforcement officer should be present if his decisions are the validity of his decisions are at issue the [1:31:23] Brenda Robinson: code office has no part in this latest decision we were discussing unless they've already pulled a permit, but again, but they haven't. But they did pull a permit for the final rule. [1:31:32] Mike Kellis: They can't do the work without a permit, and they can't get a permit without clearing the Certificate of Appropriateness. [1:31:40] Brenda Robinson: So whatever the code office could add probably is nothing. [1:31:44] Stephen Sayers: Right, zero. But let me go back to the tape. If they have no permit... [1:31:53] Brenda Robinson: The painting only covered colors. It says in there if there's a change in materials or colors... [1:32:16] Mike Kellis: They seem, frankly, to me, to be doing quite a bit of stuff that should be the subject of a certificate. [1:32:24] Brenda Robinson: But we don't know if they got a permit or not. I don't know. [1:32:27] Stephen Sayers: And to get the permit, they'd have to go to the code. This is why I think a code enforcement officer... [1:32:36] Mike Kellis: That seems to be a tremendous imposition on the code enforcement officer's part, working every hour that God sends right now, and we're asking him to add a few more hours into the bargain. [1:32:50] Brenda Robinson: Would you be satisfied, Brenda, if we just had a memo from the code enforcement officer that states their position, they either have a permit, they don't have a permit, they're not involved? [1:33:00] Mike Kellis: That's not what the ordinance says. No, I know, I know. [1:33:04] Brenda Robinson: I would be very happy to have it. They would be here in spirit with their memo and document. [1:33:12] Stephen Sayers: I would be very happy. [1:33:21] Mike Kellis: I mean, I asked the appellants in the, I can't say that he necessarily would, but he's required to be here. Okay, well, what are you going to ask him? I can't say. [1:33:43] Stephen Sayers: Oh, the details are a lot. So if there [1:34:21] Brenda Robinson: are questions on that memo, we can say, sorry, you need to be there to answer questions. Yes. They still only have two people. [1:34:33] Mike Kellis: Well, there should be one person, isn't it? Just Frank Kunkel. That's it. [1:34:37] Brenda Robinson: No, there's a second person. [1:34:39] Mike Kellis: But this is he actually an officer or in a system [1:35:01] Brenda Robinson: So many times when I come into these meetings, I feel like we're operating blind. You have to provide [1:35:12] Stephen Sayers: But among the board members here [1:35:20] Brenda Robinson: we're required to get into those details. Yes, we didn't, we would be remiss in our [1:35:27] Anthony Santagati: job. Michael want to go home, is there [1:35:42] Brenda Robinson: anything else do we need to cover? No, [1:35:45] Mike Kellis: you go. No, there is one notice of decision, and the decision I would like to move that I be authorized to submit to Jim Schlageck the, because I'm such a terrible typist, the documents memorializing the notice and the decision. And that I be authorized to sign it on behalf of the speculate drafts of the to sign those decisions. Occasionally, that's caused a few time problems. [Stephen Sayers: favor] hey I think that concludes by mr. Kellis all in favor adjourned at 8 10 p.m. on the 21st of September thank you all for coming thank you now could I have my computer back there, Mr. Schlageck.