Unintended consequences of voting down a Motion to Reconsider
Mon, 05/08/2023 - 5:15pm
Floats waiting to be installed. Bob McKay photo
Eastside Waterfront south working pier. Bob McKay photo
The Eastside Waterfront Park has just taken delivery of eight new floats to replace a single working waterfront float as recently approved by the Select Board. Thirty-five Carter’s Wharf fishermen need the floats and a new hoist while their pier is being rebuilt. The floats will not be installed because, after an 18-month process, the Board of Appeals (BOA) has rescinded the park and marina building permit.
The Planning Board (PB) informed the BOA twice that the Park’s 12-spot parking area was set back to the “greatest practical extent.” While the BOA did not find that conclusion to be untrue, they did find that the evidence the PB provided was insufficient to make that determination. The ordinance spells out a clear path for the BOA in such a scenario.
If the Board of Appeals determines that the record of the Planning Board proceedings is inadequate, the Board of Appeals may remand the matter to the Planning Board for additional fact-finding.
Instead of requesting additional fact finding regarding the specific parking area “greatest practical extent” factors from the PB, the BOA chose to scrutinize the PB’s judgement. This was unfortunate. A simple remand to the PB to review evidence and make additional findings regarding the parking area would have resolved the matter a long time ago. The BOA found that all of the other grounds advanced by Doyle’s appeal other than parking were without merit.
The Code Enforcement Officer has informed Board members that park permitting must now start over because the BOA chose to vacate the entire permit rather than resolve the parking area dispute issue and allow the project to move forward. This is an unreasonable outcome, particularly given that more than 50 parking spots were removed from the site and that 8 of the 12 disputed spots are located where 8 spots pre-existed. We will be asking the Superior Court to hear Waterfront Preservation’s appeal on an expedited basis.
The BOA is not allowed to substitute its judgement for that of the PB. The Waterfront Preservation Board believes that the BOA did precisely that when deciding that the evidence the PB relied upon was insufficient. It is our hope that, in the event the court’s decision does not reverse the BOA, it will do what the BOA chose not to to do: remand the matter to the PB for additional fact finding on the greatest practical extent factors. That issue should be easily addressed, given the PB’s prior findings and the BOA’s rejection of ALL of Doyle’s other appeal issues.
Forgotten in all of this, is that the parking area is clearly set back to “greatest practical extent” as it minimizes lot coverage and curb cuts while maximizing park visitor safety. Sadly, 18 months of pointless legal maneuvering by the park abutter is now adversely affecting local fishermen.
