RAYMOND – The town of Frye Island has appealed a recent Raymond Planning Board decision rejecting its application to construct a park-and-ride facility on Raymond Cape.

Frye Island submitted an application to the Planning Board in mid-2012 to build a 43-car parking lot. The proposed parking lot and ring road was designed to reduce traffic backup on Cape Road during busy periods such as holiday weekends, when island residents and visitors form queues on Cape Road waiting for the ferry. Construction of the proposed project was to occur on 25 acres of undeveloped land across from Ferry Landing Road that Frye Island purchased in 2005 for $260,000.

On March 19, following nearly two years of deliberation, the board voted 4-1-1 to deny Frye Island’s application on the grounds that the proposed four-way intersection with Cape Road and Ferry Landing Road was unsafe and that the proposed parking lot was too small.

Following the decision, Frye Island was allowed 30 days to appeal. On April 17, Frye Island’s attorney, Natalie Burns of Portland-based Jensen Baird Gardner & Henry, submitted a legal complaint requesting that the Cumberland County Superior Court vacate the decision and instruct the board to approve the town’s site plan and shoreland zoning applications.

“The decision of the board to deny the town of Frye Island’s site plan and shoreland zoning applications constitutes an error of law, is not supported by substantial evidence in the record, and constitutes an abuse of discretion,” Burns wrote.

Burns’ complaint focuses on an incident at the board’s Feb. 12 meeting, when one of the members “stated that he had independently conducted online research concerning the safety of intersections and provided the remainder of the board with a description of his research.”

In the complaint, Burns does not identify the board member’s name. According to board member Greg Foster and Danielle Loring, Raymond’s code enforcement office administrative assistant, Burns was likely referring to board member Steve Linne. Burns could not be reached for further comment. Calls to Linne and Raymond’s attorney Mary Costigan, of Bernstein Shur, were not returned before deadline.

According to Burns’ complaint, the board member “who had done the online research stated that he had to rely upon his online research in reaching a decision concerning the safety of the project.” Burns wrote that the online research was not provided to Frye Island officials who attended the meeting and they “were not allowed to respond to the statements of the member concerning his independent research.”

“While the town planner and the town attorney advised the board that it could not consider this evidence as it was not in the record, no further curative action was taken by the board as to this member’s conduct,” Burns wrote.

“The presentation of online research by one of the members of the board, his statement that he would rely upon the testimony in his decision, the board’s refusal to allow the town of Frye Island to review and respond to the evidence, and the failure to take a substantial step to cure the improper conduct was a further abuse of the board’s discretion and is not harmless error,” Burns concluded.

According to Foster, at the Feb. 12 meeting Linne presented information indicating that the proposed four-way intersection could cause an increase in accidents. To Foster, the only board member to vote in favor of Frye Island’s application, Linne’s presentation did not significantly sway any of his fellow board members.

“I have a sense they felt that the intersection was not safe enough anyway, even though Steve added that,” Foster said. “My sense is they were already there anyway.”

“I didn’t use any of that in my decision,” Foster added, referring to Linne’s research.

Foster said that Burns’ account of Linne’s presentation was otherwise accurate.

“I can certainly understand why Frye Island would file that,” Foster added.

Burns also wrote that the board had ignored studies, plans and reports submitted by Frye Island’s consulting and traffic engineers. The board also “improperly” required Frye Island to survey Frye Island property owners about whether they would use the proposed parking lot. Although most Frye Island residents did not respond to the survey, Burns wrote, “the board improperly utilized the results of the survey to establish a parking requirement that it used as the basis for part of the denial of the project.”

According to Town Manager Wayne Fournier, the Frye Island Board of Selectmen came to a “consensus” to file the appeal, but did not formally vote on the issue.

“You’re required to file an appeal within 30 days of the decision, and so the selectmen decided to file that appeal in hopes that we can have some dialogue with the town of Raymond,” Fournier said.

In March 2013, the Friends of Raymond Cape, a citizens’ group that opposes the Frye Island application, filed a lawsuit demanding that the Raymond selectmen issue a warrant for a moratorium on all pending applications for major site plan review within the town’s shoreland rural and recreational zones for at least 180 days. The moratorium, according to the suit, would last until the town had issued a warrant to amend those zones, and bring them into compliance with their interpretation of the town’s comprehensive plan.

The Superior Court dismissed the Friend of Raymond Cape’s complaint, and the group then appealed the decision. On March 6, the Maine Supreme Court dismissed the appeal, but also rejected a joint motion from the towns of Raymond and Frye Island that the Friends of Raymond Cape, having filed a “frivolous” appeal, provide the towns with funds for legal fees and other costs.

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