By Gail Geraghty

Staff Writer

SOUTH PARIS — The Oxford County Board of Assessment Review on Tuesday denied the latest request for a tax abatement in the ongoing battle over gun noise from the Waterford Fish and Game Association.

But, while the town may have won that battle, the bigger war is just beginning.

The Waterford Noise Abatement Coalition served written notice that it will sue the town on April 1 for failing to uphold its Site Plan Review Ordinance by allowing the club to expand its operations without undergoing site plan review.

Voters approved $40,000 in legal expenses to fight the lawsuit at the March 1 Town Meeting. Selectman Chairman Randy Lessard said Tuesday the board has placed the matter in the hands of Town Attorney William Plouffe, and is awaiting the formal filing of the lawsuit before taking further action.

The OXBAR hearing

OXBAR members, in denying Virginia Howe’s appeal to have 7.5% of her 2012 and 2013 taxes abated because of gun noise, concluded that she knew about gun noise from the club’s nearby practice range when she bought the property for $139,900 in February of 2012. They also agreed with Selectman Chairman Randy Lessard’s argument that her $106,030 assessment was $33,000 less than the purchase price, and was within 10% of the town’s average sales value ratio of 91 properties from 2007 to 2013.

Howe’s father, John Howe, said Wednesday he will be appealing Tuesday’s decision in Maine Superior Court. John and Debbie Howe own the property in joint tenancy with their daughter.

OXBAR members criticized Waterford’s handling of her appeal, saying the town should have given Howe written notice they were denying her abatement. They also questioned why the gun noise wasn’t factored into the assessment. John Howe won a similar abatement request in June 2012 for his property at 298 McIntire Road, and over a dozen people signed a petition to the town seeking relief from the noise.

Virginia Howe said she was aware of the gun noise when she bought the property, but didn’t think it would bother her, having moved from a more populated area in Fryeburg Village. She said the property, originally marketed at three times the price, had remained unsold for years, possibly because of the gun noise, “and the low price was too good to pass up.”

Once she moved in, however, she said the “invasion of noise” became intolerable, forcing her to stay inside with the windows closed and to wear noise-cancelling headphones.

“You don’t really understand (how bad the noise is) until you live here,” she told the OXBAR board. In her written statement, Howe said, “I cannot understand how the town of Waterford allowed the 2006-2009 major development and new construction to take place (at the gun range) while the Site Plan Review Ordinance was completely circumvented. The solution of enclosures would have been so simple, and now the town of Waterford has asked for $40,000 to fight a potential lawsuit rather than resolve the problem.”

John and Debbie Howe appealed to the Planning Board two years ago to retroactively order the gun range expansion to undergo site plan review, but the board ruled, based on aerial photos showing before-and-after conditions at the gun range, that “there was not enough work done by the club to trigger site plan review.”

Lessard told OXBAR members the town plans to conduct a town-wide revaluation this coming year, but at present there are no provisions in assessment reviews to account for noise. The only mitigating circumstances taken into account in assessments are wasteland and nonbuildable lots. “There are other sources of noise in town,” Lessard said. “Route 117 is very, very noisy. There’s a lot of logging operations going on.”

OXBAR Chairman Wade Rainey said the range of hilly terrain separating the range on Route 118 and land along McIntire Road can serve to block noise, but it also can serve to “push it over,” magnifying the sounds of gun noise.

Lessard confirmed that two other residents besides Howe have applied for abatements this year due to gun noise. One, by Arthur Traficonte, was denied, and another one is pending. “The point is, look at our sales data,” he said, passing around a graph showing average sales value ratio by map. “We’re falling lower than our certified ratio.”

OXBAR member Fred Packard said that while it seems clear that “noise pollution” from the gun range has gotten “considerably worse” since 2006, “there’s not enough data to prove one way or another whether it’s an issue” in terms of lowering property values. “The larger issue has got to be determined.”

Sheila Delameter, OXBAR’s REALTOR^® member, told Howe, “You purchased the property knowing full well there was a problem” with gun noise. If Howe had owned the property prior to the onset of the gun noise issue, the outcome might have been different, as with her parents’ abatement appeal, which was approved. Delameter agreed, however, that Howe was “being bombarded by noise that is terrible,” and added, “I don’t think this is going away for the town anytime soon.”

OXBAR member Bob Everett told Lessard, “The problem is acoustic — it’s an aspect of the topography of the land.” As assessors, he told Lessard, “That might be something I’d want to look at. That might need to be addressed.” However, he added, “I don’t see anything wrong that the town has done” with regard to Howe’s assessment.

The lawsuit

Peter Drum of Damariscotta is representing the Waterford Noise Abatement Coalition in its notice of claim. He told selectmen in a letter that the town’s failure to require a site plan review for WFAGA’s “radically expanded use” of its Route 118 property, by constructing two new pistol ranges, additional firing lines and a storage building, places both the board and the code enforcement officer in violation of state law and its own ordinance.

Waterford’s Site Plan Review Ordinance requires review and approval for “new or substantial enlargements of commercial, retail, industrial, institutional and recreational building(s), structure(s) and uses,” Drum wrote, adding, “The increase in use and traffic since 2005 is tremendous.”

Drum said the Planning Board should not have relied on aerial photos alone to determine new uses of existing buildings. “It is well-known in Waterford that when a gun club was closed in Auburn, the entire operation was moved to Waterford. What had been a sportsman’s club that had been used a few times a year in the fall for Waterford residents to site-in hunting rifles for deer season has become a daily cacophony resulting in the misery of the neighbors of the gun club and severe impacts to property owners at some distance from the shooting. This is exactly the sort of increasing use in existing facilities the ordinance envisions.”

Drum also said that the range’s close proximity to Route 118 violates the National Rifle Association’s manual for gun club siting and placement, posing a safety threat to travelers. He noted that while Lessard attempted to broker a solution between affected property owners and the club, “As usual, with regard to WFAGA, no compromise is good enough and the gun club agreed to nothing that would actually reduce the noise pollution by their radically expanded use.”

WFAGA, founded in the mid-1940s, allows shooting from 8 a.m. until a half hour after sunset seven days a week, but has made several changes over the years in response to concerns over gun noise. According to Club President John Conti, the club prohibits police departments from qualifying officers on weekends, installed a fence with locked gates, requires suppressors on automatic firearm shooting on Sundays, and no shooting while there is a funeral in process at the nearby Pulpit Rock Cemetery or an outdoor wedding at the nearby Waterford Inn.

In addition, they built a sound-absorbing eyebrow on their rifle range in September of 2012, and plan to do the same for their pistol ranges.

The Waterford Noise Abatement Coalition’s position is that if the town conducts a retroactive site plan review hearing for the gun range and it is denied, the gun club should be required to demolish all expanded uses or have the range condemned and taken by the town, with compensation paid to the club.