Boothbay Harbor Board of Appeals

Waterfront park revision sent back to planning board

Sat, 10/30/2021 - 8:45am

The Boothbay Harbor board of appeals bounced a Sept. 8 planning decision back Oct. 28 for clearer findings of facts. Homeowners Joseph and Jill Doyle appealed abutter Boothbay Harbor Waterfront Preservation’s 65 Atlantic Ave. site plan revisions. Those included a 670-square-foot reduction of brick paver gathering area and walkway and a one-foot-diameter increase of a previously approved splash-pad.

Scott Anderson of Portland law firm Verrill Dana represented the Doyles who felt the project's scope has become bigger than what was passed in the planning board’s October 2020 approval of BHWP’s plans for a public and commercial access waterfront park. “What was initially a park now seems like a park, two apartments, a grocery store, there were some discussions … about a restaurant. The marina use is appropriate given the location, but I'm concerned about the way your ordinance is structured. You need to have a certain amount of lot space because there are certain requirements for … each use.”

BHWP’s attorney Joe Saviski of Portland firm Perkins Thompson said even though the 2020 decision is not up for appeal, the scope of the project – which does include a splash pad, grocery store and apartments – has always been on record and is what the planning board approved. The main point of the Sept. 8 decision is the diametric increase and additional cement and stonework on the splash-pad, Saviski said. The change was to create an Americans With Disabilities Act-compliant area which would remain dry for safe access of the pad.

Siviski said the pad was moved up slightly from the water and while it may be closer to the Doyles’  property than in the plans, the park is in the limited commercial maritime district and not a residential district. “There are a lot of small, legally nonconforming lots. The Doyles’ property is probably one of them. They probably knew this when they bought the property.”

Anderson said the Doyles are concerned the Sept. 8 decision was not backed up with specific findings from planning board members proving positive findings of facts, and that that does not allow the appeals board to do its job. “Right now we have a decision that has a few very basic factual findings up front just identifying the developer and then the rest of the decision is kind of a cut-and-paste of the standards from the ordinance and then the vote tally is down below. In the absence in the findings of why the board voted that each one of the standards were met puts the board of appeals in a very difficult position.”

Anderson also argued the planning board's approval was on site plan only and not shoreland zoning which makes the revision half done. Siviski said that is debatable, but acknowledged it does not appear to be reflected in the decision which is why BHWP will be going back to the planning board next month. He also said BHWP would be agreeable to the board remanding the matter back to the planning board for more specific findings as Anderson submitted.

The appeals board agreed unanimously to send the issue back to the planning board for review. Once the planning board has acted, the appeals board will reconvene to decide whether or not to grant the appeal.