The Boothbay Harbor Appeals Board denied Sewall Maddocks Jr.’s request to overrule a decision by Code Enforcement Officer Geoff Smith involving  Maddocks’ Map 7, Lot 3 and the abutting Map 7, Lot 4-A, which Hugh and Anabelle Frazel own. Due to the layout of the parcels and the private road, Maddocks has a right of way access to his property. Maddocks said that, long after construction on the Frazels’ new home progressed, he realized the structure was almost entirely inside the setback which cuts him off from the property.

According to town code, the Frazels’ structure should be 60 feet from the center of the right of way, but it is around 30 feet, Smith said in an email. “I chose, with the advice of the town's attorney, not to pursue enforcement action, due to the lack of clarity in the ordinance.”

Attorney John Cunningham said if Smith had decided to pursue a stop-work order, the Frazels could have sued the town; and the enforcement action would likely never hold up in court due to the ambiguity of ordinance language, Cunningham said.

“If in fact a right of way is being blocked, we don't know about that, but that's not something the code enforcement officer can enforce anyway,” said Cunningham. “That's a civil dispute between the people who are blocking the right of way supposedly and the person who has the right of way. They go to court on that.”

Smith decided the ordinance was not clear enough to make an enforcement action against the Frazels, said Cunningham. He said if there is a mistake in the ordinance, the only solution is to fix it. Smith said the planning board is already working on it.

When the Frazels applied to build their home, a site plan was never submitted and was not required if Smith determined he had all the information needed. Maddocks said he feels that was unacceptable and that there was ample opportunity to make sure the planned structure was within the allowed area.

“I've lost access to that property. If you want to call it a civil issue -- I paid honest money for that property, I do not have access to it today and this is all in the development of that house which the town has permitted … what you're saying is that the town's rules aren't right, that they're hard to read, but I've been able to read them …”

Appeals board members took turns conveying their sympathy toward Maddocks, but said that if they granted the appeal, they could only exercise their duties as the administrative appeal dictates: Ordering Smith to pursue enforcement action against the Frazels. The board voted unanimously not to grant the appeal.

The board will meet at 6 p.m. Thursday, Oct. 17 for a Department of Marine Resources appeal of a code enforcement decision which denied DMR permission to build living quarters Smith considers a boardinghouse. Boardinghouses are not allowed in the district.