Westport Island Board of Appeals Chairman Neil Cavanaugh was the tie breaking vote that denied the appeal of Diane Roberts and Deidre Dunlop requesting the withdrawal of a building permit issued to George "Chuck" Richardson, at the board of appeals hearing October 28.

After a two hour public hearing, Board of Appeals Board member Arthur Ballard made a motion to withdraw the building permit; the motion failed. Charles Howe made a motion to deny the appeal and allow Richardson to continue building his house; two members voted in favor, and two members were opposed.

Cavanaugh, holding the deciding vote, told the board that in his opinion Roberts and Dunlops had not proven their case. "We must decide this appeal on the information that has been presented tonight. Therefore I vote in favor of denying the appeal."

Roberts, who lives in Alabama had requested a conference call to participate in the meeting. Cavanaugh had tentatively agreed to allow it. However, Richardson said he objected and called for a point of order, referring to the procedures for public hearing of the board of appeals.

After a brief review of the policies governing the board, the board voted unanimously to reject Roberts’ request for the conference call.

Teresa Dunlap, Roberts’ niece, presented a letter to the board from Roberts giving her full authority to act on Roberts’ behalf.

The public hearing began with arguments made by Attorney Jessica Avery, on behalf of the Dunlops and Roberts, as to why the board of appeals should grant the appeal and revoke the building permit issued to Richardson.

Avery told the board that Richardson did not own two acres of land necessary to build his house because land below the normal high-water line, or roads, could not be included in the total acreage. Avery argued that Jewett Cove Road was a road, not a driveway, and should not be included in Richardson’s total acreage.

"A driveway is defined as a vehicle access-way serving two single family dwellings or one two family dwelling, according to your ordinances," Avery said. "Jewett Cove Road serves three family dwellings and a commercial wharf and should not be considered a driveway."

Richardson presented a letter from Maine Certified Assessor Eugene Huskins, indicating Richardson has 2.04 acres of land, according to a recent preliminary survey Huskins had reviewed.

Richardson was asked by a member of the board, "What is a preliminary survey?" Richardson told the board that the field work on the survey was completed, but the office work was not done.

Alternate Board of Appeals member Ben Crehore, and board member Arthur Ballard both indicated they would like to see a survey of the land before making a decision.

"We do not have the authority to ask for a survey," Cavanaugh said. "It is the plaintiff’s responsibility to prove that Mr. Richardson doesn’t have two acres of land."

Kathy Fuller, an alternate member of the board, pointed out that the information that was being used by Roberts and Dunlap was a 1990 survey, nearly 20 years old. On the issue of Dewey Cove Road being a road and not a driveway, Fuller also agreed with Richardson, and the town’s deputy code enforcement officer, who issued the permit, that since Richardson was paying taxes on the portion of Dewey Cove Road a the beginning of his property line, it should be considered his land.

Board of Appeals member Charles Howe also agreed, saying he knew Teresa Richardson, the mother of Dunlap and Roberts, never wanted Dewey Cove Road to become a road, and that it was only a driveway into the land owned by family members.

Fuller pointed out a statement in the deed which transferred the parcel of land to Richardson from his grandmother which said, "Excepting and reserving to Teresa S. Richardson, her heirs, and assigns, the right to relocate the above-granted assements and rights of way to locations which she may designate, provided that said new locations shall be at least as convenient to the grantees as the existing."

"She (Richardson) and her heirs maintain the right to relocate the right of way and easement on her property. It should not be considered a road," Fuller said.

The board agreed that the portion of Dewey Cove Road currently owned by Chuck Richardson is a driveway with the right of way to others to go to the wharf.

The Dunlops and Roberts have 30 days to ask the board to reconsider their decision and 45 days to appeal their decision to Superior Court.

In the meanwhile Richardson continues to build his four bedroom house on Dewey Cove Road.