The room was packed and emotions were high July 8 at Boothbay Harbor planning board’s public merit review hearing for Boothbay Harbor Waterfront Preservation’s (BBHWP) East Side Park amended site plan application. 

 

First, the board unanimously deemed BBHWP’s amended application complete. May 13, the plan was approved on the condition that a 2020 letter from BBHWP’s consultant, Water Doctors of Maine, on which its Natural Resources Protection Act approval was based, was provided. A printed version of Plan L4 was also requested since details were not clear in the electronic copy. Both conditions were met.

 

The board also approved adopting a 26-page script to loosely guide proceedings, with the consent of BBHWP and the abutter’s counsel. The ordinance provisions under the hearing’s review were buffering and screening, lighting and glare, parking standards, septic waste disposal, stormwater runoff and any conditions attached to site plan approvals.

 

Mitch Rasor of Rasor Landscape Architect, who handles BBHWP’s permitting, presented the amendments to the 2020 site plan. They were: Changing the splashpad’s location and size, changing the plaza’s dimensions and materials, removing 14 overflow parking spaces in the north lawn, removing two residential uses and two of the four residential parking spaces, updating the impervious surface from 28.87% to about 32%, and adding a landscape stormwater buffer.

 

On the splashpad issue, Rasor said BBHWP was approved for a plan amendment in 2021, but this was overruled due to a failure to properly notify abutters.

 

While not in the current amended plan, BBHWP President John O’Connell said Hodgdon House will likely be replaced with a smaller building, and a community grocery store will not be opened. The abutters' lawyer, Kristin Collins, praised the changes as they reduce the amount of park use and the flow of traffic. When those changes occur, a formal application will be submitted to the planning board.

 

In her opening statement, Collins questioned the board's decision to separate the shoreland permit and site plan review, suggesting the process would go more smoothly if they were combined; this would ensure they fit into each other's standards and prevent possible piecemeal appeals, which cause delays.

 

In addition, due to the highly technical nature of the plan that is being disputed, Collins said it is standard practice to get a peer reviewer to clarify inconsistencies. She was formally requesting one. Collins said she would send the request to the board in writing.

The floor was then opened to public comment. Many spoke in favor of the park, citing the increased docking, parking and green space it has provided. Statements were often followed by applause. At times, Chair Merritt Blakeslee had to remind the crowd not to boo or heckle.

 

BBHWP board member David Flanagan of Boothbay Harbor emphasized the park’s community-focused goals, saying, “There are people now docking their short-term ties ... We've given that. We've given the fishermen on the docks a space to take their catch in. We've done that. We provided an area for ghost traps (that are) being retrieved during the winter months (to clean up the harbor). We've done that. We've tried to put in new grass. We're continuing to try and improve that. We're only held still because of appeal after appeal after appeal.”

 

Others, including abutter Joe Doyle, expressed frustration over plan inconsistency and the number of uses planned for the space. He advocated for a simpler park. “(It was) quite a surprise to find out we were going to be living next to a commercial development, and now the splashpad has turned into an amphitheater. I would just ask you to visit and see,” said Doyle.

 

James Dilley of Boothbay Harbor shared a similar sentiment, saying he was in favor of BBHWP’s goal to increase public access to the waterfront. “What I'm not in favor of is a Disneyland or a water park, or stores. I want a park, just a plain park.”

 

Based on a petition from the abutters that BBHWP’s shoreland zoning permit and 2020 site plan review had both expired, the board then considered the status of the permit/review. Members welcomed counsel and public comment on whether it was within the board’s purview to deem them expired or not. They were not determining expiration.

 

On the shoreland zoning permit, town ordinance (170-101.11(F)) states that a permit will expire one year from the issue date if a substantial start has not been made in construction or property use. If a substantial start has occurred, the applicant has two additional years to complete the project, at which point the permit shall expire.

 

On Dec. 5, 2025, the Superior Court instructed the Boothbay Harbor board of appeals to uphold the planning board’s approval of BBHWP’s shoreland zoning application, according to the meeting script. The decision was appealed to the Law Court, and a decision is pending.

 

Muri argued that expiration was not in the board’s jurisdiction, and that it was the abutters' burden to take the issue before a court. “(The abutters) cannot have that issue determined here where there is no right to compel attendance, no right to cross-examination, none of the rules of evidence apply, so it's just not the right place to determine something as important as property interest.”

 

Collins said the board did have the authority, as the issue is related to the scope of its own review. “If the original shoreland permit is still in place, then you’re only reviewing those elements of the plan that have changed. If those permits have expired, you are reviewing the entire thing.”

 

Town Attorney Dan Stockard did not see where determining expiration fell under the board’s powers or duties outlined in the ordinance. The board voted unanimously that the possible expiration required no decision from them at this time.

 

As for the 2020 site plan review, ordinance (170-66 (A)(9)) says that approval will expire three years after the issue date if substantial development, as determined by the Code Enforcement Officer (CEO), has not begun or five years after the issue date if development is not complete.

 

Muri reiterated that a ruling went beyond the board’s duties. He added that if BBHWP goes to the court for a permit extension, then the abutters will have a chance to counterclaim that they’re expired.

 

Collins felt the board had the needed information to decide, saying that if one compares the approved 2020 plan and what has been developed, then the 2020 plan was never constructed. “Therefore, it cannot meet the substantial starter, substantial completion,” she said.

 

BBHWP counsel and some community members disagreed, saying the park is largely operational.

 

The board voted unanimously that the possible expiration was relevant to the hearing and, since it was outside its authority, requested that Code Enforcement Officer Dan Feeney convey a ruling within 30 days. Blakeslee asked that Feeney be in regular contact with the town lawyer to ensure ex parte communication does not occur as he gathers information from both parties. Feeney agreed.