Town of Boothbay
Appeals board upholds DEP challenge to resource protection zone ruling
Mon, 03/21/2022 - 1:15pm
Summer resident Brian Cresta testifies on his sister’s behalf March 15 regarding the DEP appealing a planning board approval of a development within a resource protection zone. BILL PEARSON/Boothbay Register
The Boothbay Planning Board is being asked to revisit a Dec. 19 approval of a development in a resource protection zone. In February, Maine Department of Environmental Protection requested another look for Heidi Cresta’s and Virginia Guerriero’s application to allow selective tree-cutting, installation of a driveway, septic system and well, and construction of a one-family home. Their property is at 4 Waterfront Road North in the Highland Estates subdivision.
On Feb. 18, Colin A. Clark of DEP’s Bureau of Land Resources submitted an appeal based on “an error in the approval of the permit.” In a letter, Clark expressed concerns the board’s decision violated the local ordinance. In reviewing the planning board’s decision, Clark concluded the proposed home should be located outside the resource protection district. “Considering the board’s decision violates the town’s ordinance requirements, the state’s shoreline zoning standards in Chapter 1000 and state statutes, the department strongly requests the board reconsider its decision, if legally possible, or revoke the decision and hear it, again,” Clark wrote.
The state attorney general’s office also sent a letter seeking another look. Both letters stated the planning board’s approval of Cresta’s and Guerriero’s application violated municipal and state ordinances. The DEP also filed an appeal and a hearing was set for March 15. But town officials contend they followed both local and state rules in approving the development. On Jan. 19, the planning board considered a different location. But it was in a wetland. Town officials reported the DEP’s proposed alternate location is the same wetland previously rejected. The application also needed to abide by several ordinance conditions for developing in a resource protection zone.
Despite a difference of opinion, the town and state agreed on remanding the application back to the planning board. Attorney Sally Daggett spoke on the planning board’s behalf during the March 15 appeals board hearing. “If the DEP has an issue with the application, then the planning board is the best party to deal with it,” she said. “If the board missed something, or if DEP just has a bad map, then let the planning board take a fresh look.”
The appeals board agreed with Daggett’s argument. A unanimous vote resulted in remanding the application back for a second review. The appeals board reached its conclusion after listening to arguments presented by Daggett, the applicants’ lawyer Sean Turley, and Brian Cresta, Heidi Cresta’s brother. Nobody represented DEP or the attorney general’s office.
Besides the question of whether Cresta’s and Guerrero’s application met state and local rules, two other questions were debated. Turley claimed the appeal should be dismissed. He claimed the state had no standing because neither agency participated in the original planning board decision. Turley also claimed DEP missed the filing date. The DEP sent an appeals application at 4:36 p.m. Friday, March 19. This was six minutes after the town office closed. “They missed the deadline,” Turley said. “Because of the Monday holiday, code officials didn’t receive the application until Feb. 22 which is four days afterwards.”
But town officials believed the deadline was met. Code Enforcement Officer Jason Lorrain testified DEP contacted the office two days prior by email stating its intention to appeal. Daggett also countered Turley’s claim the state agencies had no standing. She refuted Turley’s claim regarding a state Supreme Court case. Turley argued in 1998 the court ruled in favor of the town of Otis, 3-2, that the DEP didn’t have standing in an appeals hearing. “That was a shocking decision for many of us,” she said. “The statute has since changed, and I don’t think that decision would now hold.”
Daggett also believed a DEP email regarding a potential tributary stream’s location showed the agency participated in the original planning board decision. She also added one more piece of information. “The DEP has an overarching authority under state law for enforcing and administering shoreland zoning. So sure, they have standing here,” she said.
Brian Cresta spoke on the property owners’ behalf. He challenged the assertion an email was used to show the DEP had participated in the planning board decision. He reported the email received by Boothbay wasn’t sent by the DEP. Cresta explained the applicants sent an email to the code office regarding a tributary stream which played no role in their application. He also was baffled why the DEP appealed after Clark made a statement last summer in front of six witnesses.
Cresta described the party stopping at the proposed development, and Clark making a statement. “He (Clark) pointed to the ground, and said ‘This is the only spot where this development can go.’ His alternate location is in a wetland. So this is all very confusing to me,” he said.
Appeals board member Martin Page was equally confused. He asked why Clark wasn’t at the hearing to answer questions. “It makes it difficult to make a decision when the DEP isn’t here,” he said.
On March 18, the Boothbay Register reached Clark by phone. He referred questions to DEP Deputy Commissioner David Madore, but he did answer a question regarding his statement last summer in front of six witnesses. “I did say that, but he (Cresta) left out the four sentences preceding that,” Clark said.
On March 18, town officials reported Clark was being invited to the April 20 planning board meeting. “Either he or another DEP representative will attend,” Town Manager Dan Bryer said. DEP Deputy Commissioner David Madore reported Clark couldn’t attend due to a “recent medical procedure” and would respond later in the week regarding who may attend the planning board review.
