Boothbay Harbor selectmen approved PGC8 LLC’s wharves and weirs application, postponed and tabled since Nov. 12. The project is for a new layout of floats on the waterfront of the 49 Atlantic Ave. business, Boothbay Harbor Oceanside Golf Resort; the installations include an 8' x 100’ float, two 8’ x 80’ floats, one 8’ x 90’ float and one 8’ x 20’ float. Floats would be secured with five three-piling dolphins.
The onsite hearing was held Nov. 12 and the public hearing was scheduled to meet that night, but was postponed by PGC8 LLC. Selectmen’s Chair Mike Tomko recapped the Nov. 25 meeting in which the town tabled the application review due to town attorney John Cunningham's suggestion a lack of consent on the part of the owners and lender would render the application incomplete.
Tomko noted a letter the board received Dec. 5 from PGC8 LLC's attorney, Joanna Tourangeau. It outlined her legal opinion on the Wharves and Weirs Act concerning obstruction of navigation and abutters' consent. The letter argued that because the application included reviews by Maine's Bureau of Parks and Lands, Department of Environmental Protection, and U.S. Army Corps of Engineers, it would suggest no obstruction of navigation. A letter from the U.S. Coast Guard base in Boothbay Harbor also confirmed this, said Tourangeau.
Tourangeau noted that the definition of an abutter, according to town ordinance, specifies those listed in the tax assessment. “It does not list any mortgagors, it does not list First Federal … Even if their consent is not obtained, it can still be approved as a project if it does not interfere with their rights … In that letter, (Captain George Haynes) states that he 'does not object' to the project. He also uses … the phrase 'we do not object to the project.'”
Cunningham said he was not convinced the letter of consent would stand up if the Haynes decided to appeal. He added, he is troubled that the letter of consent begins with: “I have been asked by PGC8 LLC to write a letter of consent … Instead I have provided a letter of concern …”
“The word 'instead' means 'I am not doing what I was asked, I'm doing something else,'” Cunningham said.
Cunningham said an expression of no objection is not the same as consent, and he compared it to a board member perhaps abstaining from a vote rather than voting in the negative. He said board should consider the possibility Haynes may reserve the right to bring the issue back up by saying he only ever remained neutral, and the fact that George's wife Judith never signed the letter, renders the “we” moot. Cunningham added, Maine's Mechanics Lien Statute defines mortgage holders to be owners of a property. “Their consent is necessary … That is in part because in Maine law, mortgage holders are not lien holders, a mortgage deed actually conveys the property, conveys legal title to the lender.”
The lender's consent should be obtained, Judith Haynes' consent must be obtained and the board should ask George Haynes to clarify his letter, Cunningham concluded.
Tourangeau said the board's consideration of needing consent from an abutter's lender would call into question years of the board’s decisions. “I think that to aggregate your customary practice and to not use your own town definition and instead look to a separate tax lien-like statute in order to decide who is an abutter would be highly irregular.”
Selectmen said because the project involves structures within an abutter's waterfront, the application is unlike anything they have dealt with in the recent past. Selectmen agreed the several technicalities made it difficult to consider ruling on the application, so Tomko asked Cunningham to review their options. Those would be to vote and likely deny the application causing PGC8 LLC to appeal or reapply; or vote to approve, table, or approve with conditions.
Selectmen unanimously approved the application with the conditions that George Haynes clarifies his letter, Judith Haynes provides a letter of consent, the lender provides a letter of consent, vessels cannot protrude into the navigation channel and all docks and floats have reflectors.
Selectmen unanimously approved Janet Hamblen’s 347 Lakeside Drive application for one 6'x25' pier, one seasonal 30'x3' ramp, one 10'x20' float and two 30-foot skids to be anchored to the ledge.