A “commentary” recently posted by Boothbay Harbor Waterfront Preservation Board of Directors contains numerous inaccuracies regarding why the Eastside Waterfront Park has been delayed.

The truth:

• There were no appeals of BHWP’s initial approval only because notice of that meeting was not properly sent to abutters.
• As the code enforcement officer and town attorney have repeatedly confirmed, BHWP’s project requires both site plan and shoreland zoning approval. These are two separate provisions of town ordinance, with two separate sets of approval standards. A developer would typically request approval under both sets of standards in one comprehensive application. BHWP requested only the site plan approval and not the shoreland approval. If it had presented a comprehensive and compliant application like most developers, there would have been no delay.
• The CEO, and not any member of the Planning Board, is in charge of determining what permits are required and when they have been violated. The CEO and town attorney have reaffirmed their position that BHWP initially failed to obtain shoreland approval, despite BHWP’s efforts to convince them otherwise.
• BHWP blatantly violated its town-approved plan by relocating its splash pad, tripling its surface area and doing all of this without a required building permit. If BHWP had built in accordance with its approved plan and applied for the required permit, there would have been no delay.
• BHWP could not have been “astonished” to see a Jan. 13, 2022 letter from Maine Department of Environmental Protection questioning the legality of its proposed parking. The same DEP official had stated the same concern in an Oct. 13, 2021 email to the CEO that was available to all during the planning board’s review, but the board nevertheless granted the shoreland approval without addressing DEP’s concerns.
• It should also be no surprise that the board of appeals found it troubling that these concerns raised by DEP – which oversees shoreland zoning – were not addressed by the planning board before approving the application. This is why the board of appeals ordered the application to be remanded to the planning board to make findings (that it has not yet made) to determine whether the parking is compliant: namely, whether the parking is new or existing, and if existing, whether it is being relocated to meet the setback to the “greatest practical extent” as required.
• The longest recent delay has been 100% attributable to BHWP. If it believes its plan can meet all the standards, it should have proceeded immediately back to the planning board eight months ago to get the additional explanation the board of appeals requested. However, BHWP has not done so. The planning board will finally take up the board of appeals’ remand in October, but only because the board of appeals questioned the delay.
• It is patently false that DEP has “acknowledged that (the park’s) parking area was properly approved.” The recent DEP email upon which BHWP puts this misplaced emphasis simply states that if the planning board finds that the parking is not new but relocated, and if it finds that it is set back to the greatest practical extent, “I do not expect the department would second guess the town’s interpretation.” But the planning board has not yet engaged in this analysis, which is exactly what the BOA is requiring it to do in October.
• BHWP is now subject to a stop-work order because it failed to acknowledge in earlier filings that its project is in a special flood zone and did not obtain the required floodplain permit. The highly regarded firm of Ransom Engineering has confirmed that the park’s pavilion and parking areas are within this special flood area. Exacerbating its problems, BHWP has now built yet another non-compliant structure that was not shown on its approved plan.

While BHWP has attributed its delays to the abutters, and more recently to the town, the truth is that avoidable errors have plagued this process from the beginning. Any delays – and the resulting administrative and legal costs to the Town – could have been avoided through closer attention by BHWP to the applicable laws and compliance with its own permits. For documents cited, please see www.bbhwaterfrontinfo.com

This commentary has been updated.