Boothbay Harbor's appeals board ruled against Boothbay Harbor Waterfront Preservation (BHWP) July 17 in a split vote that upheld a decision by Code Enforcement Officer (CEO) Geoff Smith. Smith's decision required the organization to apply for a flood hazard development permit to make repairs at 65 Atlantic Ave.  

Representing BHWP, attorney Anthony Muri said the question was whether the organization is obligated to get a flood hazard development permit to repair or replace siding, roof shingles, doors and other items on a building. According to him, ordinances allow limited repair work without a permit. He argued that the two relevant, and somewhat conflicting, town ordinances could be harmonized by allowing BHWP to proceed without one.  

However, town attorney Dan Stockburn argued the board does not have jurisdiction because Smith did not deny an application or take enforcement action. “I think it's troubling that any time the CEO tells someone they need a permit, it would end up before this board,” he said.  

Stockburn also said the work falls within floodplain management rules, which require separate permitting. He said floodplain requirements extend beyond the municipal level, and ruling in favor of the appellant could lead to complications with state regulations or the town's participation in the National Flood Insurance Program.  

Abutter attorney Kristin Collins said the second someone removes and replaces components, it triggers floodplain and shoreland approval. She added some issues seem small but, for example, there is a 22-page FEMA technical service bulletin on what kind of siding can be used in floodplains. She said it may seem absurd to require permitting for minor repairs, "but it is that granular that they care exactly what that door is made of. They care exactly what that siding is made of. And that's the kind of questions that (Smith) has to answer when he is looking at a floodplain permit."

Board member Bill Hamblen said their job is to consider municipal code rather than think about larger issues. However, he said code allows for some repairs without a permit, while development and construction are different. His motion to vacate the CEO’s decision was supported by Trish Fallon, but failed.

Chair Wendy Wolf then moved to affirm the decision, which passed with yeas from her, Rosemary Bourette and William Prince. "There's been compelling argument that the floodplain zone, from a legal standpoint, is clear that there is the expectation that anything that is even minor construction will be guided by a permit. And that seems to be unambiguous," Wolf said. 

BHWP representative John O'Connell told the Register the organization is considering options. The options include filing for a permit and court action. 

Despite the ruling, Wolf raised concerns about the need for a permit and said the error is with town ordinances. She said the board wants residents to be able to complete minor repairs and projects without having to go through the town. “Logically, we feel the town should be pretty hands-off when it comes to replacing shingles,” Wolf said.

The board briefly discussed that the town should consider reviewing ordinances to address issues around permitting conflict and clarity.