Joseph and Jill Doyle stayed their Lincoln County Superior Court appeal against Boothbay Harbor concerning abutter Boothbay Harbor Waterfront Preservation. The action, which deals with a Sept. 8, 2021 site plan amendment, happened months ago as the board of appeals awaits a remand decision from the planning board on the Doyles’ appeal for BHWP’s park and marina permit issued Nov. 17, 2021.
BHWP was scheduled to appear before the planning board July 13 for testimony supporting the project and the board’s approval. However, BHWP withdrew from the meeting July 12 saying shoreland zoning criteria were reviewed in the Oct. 14, 2020 site plan approval and that the Nov. 17 permit may not have been necessary.
“This ‘park and marina building permit’ amounts to a second site plan review,” said BHWP President John O’Connell in an interview July 13. “We already received the park and marina site plan (approval) in 2020, so that entitles us to go get specific permits from the code enforcement officer. We don't understand how this is any different from our site plan approval. We don't think it gives us the right to do anything that our site plan doesn't already give us.”
For BHWP to move forward with its plans, it needed site plan approval and, as part of that, an SLZ review. For the planning board to review the application, BHWP needed approvals from Maine’s Departments of Transportation and Environmental Protection and the U.S. Army Corps of Engineers. To date, BHWP has obtained all necessary approvals, but not without misgivings conveyed in letters from DEP.
The Boothbay Register found via a February freedom of access request that an Oct. 13, 2021 letter from DEP’s Colin Clark to CEO Geoff Smith, said legally existing nonconformities can continue so long as they are not made more nonconforming. However, the proposed parking lot should be considered new under Boothbay Harbor ordinances and therefore subject to DEP’s 75-foot high water-line setback which was not reflected in the plans, Clark said. He also said two apartments, which O’Connell said have since been removed from plans, would not be allowed.
In an interview on July 12, the Doyles and their attorney Kristin Collins of Preti Flaherty said they were hopeful BHWP would submit new plans or an amendment addressing DEP concerns. The Doyles’ concerns are primarily with SLZ review, lot coverage, plans for nonconforming parking, structural integrity of the commercial and public piers, and a splash pad which received retroactive approval from the planning board via site plan amendments Sept. 8.
“On four separate occasions, from day one, we never received an abutter's letter about any construction … We've got a couple residences here, so it's not hard to find us. They were approved for a splash pad … 25' in diameter further south on the lot (taking) it further away from my house … (Instead), they built this massive landing pad over 50' right off of my house and they didn't have any permit. They quietly went back to the town in September five or six months after the pad was built and asked for a retroactive permit and didn't tell the abutters. That would be us. It doesn't seem very ethical or up front or transparent, does it?”
In their Oct. 5 appeal of the Sept. 8 decision, the Doyles’ aired concern that SLZ approval was not pursued or granted. However, planning board member Bill Hamblen sent notes to Smith and planning board members Oct. 15 stating SLZ permits do not exist, that SLZ review is part of a site plan review and the 2020 approval contained SLZ review. The Sept. 8 approval for changes to the site plan also included SLZ review of those changes, he said. O’Connell said Smith asked BHWP Oct. 25 to apply for a park and marina building permit for the planning board’s consideration.
In the Nov. 17 planning board meeting, Chair Tom Churchill said the permit was the first of its kind to his knowledge, O’Connell recounted. In the same meeting, the board approved the permit, SLZ criteria checked out and, separately, that its Sept. 8 decision was sound. The Doyles appealed the park and marina building permit approval Dec. 16 and the appeals board remanded it back to the planning board Jan. 13. On Dec. 20, the appeals board denied the Doyles’ Sept. 8 appeal.
Clark reiterated his position in a letter on the morning of Jan. 13 for the appeals board’s consideration as it reviewed the park and marina building approval. However, Clark clarified his comments on the parking lot in a letter to BHWP on June 22. Clark said if the town determines the parking is not new and is viewed as a relocation or reconstruction of an existing nonconforming structure per the town’s ordinance, it would be an alternative interpretation not likely to be challenged by DEP.
“In light of the lack of clarity, I do not expect the Department would second guess the town’s interpretation of its ordinance. If the town interprets the nonconforming structure provisions as applying, evaluation of whether the proposed parking conforms to all the setback requirements to the greatest practical extent would be an important part of the town’s evaluation.”
Collins said the Doyles stayed the court appeal with the park and marina building permit appeal still in progress. “From January until now, essentially what everybody including the town has been waiting for is for the park to make revisions to its plan and present that as an amendment.”
O’Connell said BHWP has been waiting for DEP to explain why rescinding its opposition took nine months and for the town to explain why the park and marina building permit is necessary. BHWP has no intention of appearing before the planning board until it has answers, he said.
While BHWP maintains the parking lot should be allowed as relocation of an existing nonconforming accessory structure, the Doyles say the parking lot cannot be grandfathered since its accessory use was not for a park, residence, grocery store or anything else but for a motel that no longer exists. Joe Doyle also said BHWP owns parking on the lot across the road which, he said, should provide more than enough parking for park visitors and which keeps the park area greener.
After demolition of the former Cap’n Fish’s buildings, the Doyles expected plans for 80% or more greenspace across the park as required by DEP. Collins said plans show 62% coverage; BHWP claimed just under 30% coverage in its application, passed by the planning board which acknowledged the coverage as a greatest practical extent considering the site’s layout.
The Doyles also question the safety of the property’s commercial and public access piers. Joe Doyle said much of the traffic will be large trucks coming and going and parking on a regular basis and that both piers will have large gatherings during seasonal events. There has been no confirmation the piers are structurally sound, he said. However, O’Connell said BHWP’s north pier has had over 40 damaged pilings replaced. He said, “No further work is planned at this point.”
Litigation against the town and an appeals board remand to the planning board sit in limbo as BHWP considers its next move. O’Connell said there would be no “next move” except for continuing with the project should the park and marina building permit be unnecessary. Otherwise, all approvals are in hand to allow work to move forward and for building permits to be applied for, he said. The Doyles said they expect BHWP and the town to address the SLZ approval process, DEP concerns, noncompliant structures and failures to notify abutters throughout the permitting process.
Said Doyle, “It's just beginning to feel a bit like a commercial development rather than some greenspace. 'Safe and green' … If we could get to 'safe' which I think is a cinch with independent engineering study (of the piers), and if we could get to 'green' … something that's park-like or something close to that, it would be great … Jill and I have given thousands and thousands of dollars to the park. We really want a park.”
The Boothbay Register reached out to Smith; he was not immediately available.
A timeline for BHWP East Side Waterfront Park
February 2019 – https://boothbayregister.com/article/bhwp-plans-east-side-public-park/114346 – BHWP announces plans for a waterfront park.
Oct. 31, 2019 – https://boothbayregister.com/article/eastside-waterfront-park-reality/126521 – BHWP announces purchase of Cap’n Fish’s property.
April 8, 2020 – https://boothbayregister.com/article/east-side-waterfront-park-continues-gain-momentum/132989 – Preapplication talks continue.
May 13, 2020 – https://boothbayregister.com/article/east-side-park-proceed-full-application/134110 – MRLD Landscape Architecture + Urbanism Principal Mitchell Rasor continues preapplication talks. Announces full application to be submitted June 10.
June 2, 2020 – https://boothbayregister.com/article/cap-n-fish-s-motel-buildings-come-down/134697 – Cap’n Fish’s motels demolished
June 10, 2020 – https://boothbayregister.com/article/waterfront-park-plans-tabled-footbridge-brewery-gets-outside-seating/135056 – Conditional approval requested due to pending state approvals. Denied until state approvals in hand.
Oct. 14, 2020 – https://boothbayregister.com/article/waterfront-park-gets-nod/139783 – The planning board approves BHWP’s site plan after months of back-and-forth.
July, 2021 – Splash pad work progresses
Aug. 13, 2021 – Doyles send a letter of concern to Code Enforcement Officer Geoff Smith detailing the expansion of the splash pad and move about 40’ east and closer to their home. Other concerns included the project’s lack of SLZ approval and no notice to the project’s abutters. The Doyles said the splash pad’s expansion brought the entire project to about a 50-foot diameter counting the pad’s increase from 25’ to 26’ diameter, a four-foot apron around the perimeter and a granite retaining wall.
Aug. 23, 2021 – BHWP files an amendment to the Oct. 14 site plan approval. Doyles allege no notice to abutters was received and plans for a neighborhood grocery store did not have requisite details, the application noted two residential dwellings instead of the original single dwelling, and there was still no SLZ approval.
Sept. 8, 2021 – Planning board approves site plan amendment.
Oct. 5, 2021 – Doyles appeal Sept. 8 decision.
Oct. 28, 2021 – BHWP applies for a park and marina building permit.
Oct. 30, 2021 – https://boothbayregister.com/article/waterfront-park-revision-sent-back-planning-board/153568 – Board of Appeals remands decision back to planning board.
Nov. 17, 2021 – https://boothbayregister.com/article/planning-board-reaffirms-sept-8-bhwp-approvals-more-findings/154253 – Planning board approves park and marina building permit application, reaffirms Sept. 8 decision.
Dec. 16, 2021 – https://boothbayregister.com/article/doyles-file-second-appeal-bhwp-planning-board-approval/155343 – Doyles appeal planning board’s Nov. 17 park and marina building permit approval. Request the board require BHWP obtain structural assessment of its piers, location of high water linem an amended National Resources Protection Act (NRPA) permit for impacts of a splash-pad structure and a third-party engineer confirm town ordinance compliance.
Dec. 20, 2021 – https://boothbayregister.com/article/appeals-board-upholds-planning-board-approval-bhwp-site-plan-revisions/155200 – BOA upholds Sept. 8 planning board decision.
Jan. 13 – BOA remands park and marina building decision back to planning board.
Jan. 26 – https://boothbayregister.com/article/doyles-appeal-sept-8-decision-lincoln-county-superior-court/157112 – Doyles appeal BOA Dec. 20, 2021 ruling in the planning board’s favor. Request reversal of the Sept. 8 decision claiming it and the remand decision contained errors, inadequate findings, and non-compliance with ordinance standards.