The Boothbay Appeals Board upheld eight of 11 violations issued against a Barters Island Road resident for exceeding allowable maintenance in the shoreland zone. The board voted unanimously May 21 that Gene and Judith Molinelli violated the local land use regulations. The Molinellis own property at 66 Barters Island Road and assert a view easement on the property across the road, 65 Barters Island Road, owned by Peter and Kathryn Wagner.

The Wagners and Molinellis disagree on whether or not a view easement exists.

In November 2017, the Molinellis hired a professional licensed forester to perform a vegetative maintenance clearing of the view easement. The Molinellis maintained their view easement without notifying or receiving  the Wagners’ permission. During the hearing, the Molinellis’ lawyer  Jon Pottle reported the two families disagree about each other’s responsibility on the view easement maintenance. In 2015, the Molinellis’ attempted vegetative clearance resulted in a notice of violation issued by the local code enforcement officer. 

Last November, the Molinellis made another attempt at maintaining their view easement. They had earlier submitted a vegetative maintenance plan to Code Enforcement Officer Art Dunlap who reviewed the document, but didn’t issue an permit. Pottle reported when the Molinellis didn’t hear from Dunlap, they proceeded with the plan thinking the town approved it.

After the maintenance was completed, Code Enforcement Officer Jason Lorrain received a complaint.  He invited Maine Department of Environmental Protection Agency Shoreland Zoning Coordinator Colin Clark to inspect the property. The inspection resulted in a notice of violation issued to the Molinellis and Wagners.

According to Lorrain, he and Clark agreed the vegetative clearance resulted in 11 land use violations. The notice was issued to both the Wagners and Molinellis. Lorrain negotiated a March 16 deadline for the two parties to produce a replanting plan. The two couldn’t agree on a mutual licensed professional forester and, ultimately, couldn’t agree on a plan. The Wagners submitted a plan approved by the town and, on May 9, entered into a consent agreement with the town.

The Molinellis didn’t submit a plan prior to the deadline. They appealed Lorrain’s notice of violation. The hearing was delayed in hopes both parties would reach a mutual resolution. On May 9, the Molinellis requested selectmen postpone entering into a consent agreement  with the Wagners. The Molinellis submitted a replanting plan this month and Pottle told selectmen he believed the parties “weren’t far apart” in reaching a mutual resolution. “It’s a couple shrubs and trees is all that separates us. My clients didn’t want to replant trees which would end up encroaching on their view easement,” he said.

But selectmen declined to delay an agreement leaving the Molinellis to appeal the November notice of violation.

During the May 21 hearing, Pottle asked the five-person board to “modify the notice.” He characterized nine alleged violations as not being applicable because no trees were cut in the shoreland zone. “There are two technical, minor violations that can be easily addressed so this is why we are asking for a modification,” Pottle said.

The Molinellis hired license professional logger Steve Pelletier who affirmed Pottle’s declaration that no trees were cut during the vegetative clearance. “We are really not that far apart (on the Wagner and Molinelli replanting plans) and the fix should be simple,” Pelletier said about remedying two violations his clients agreed happened during the clearance.

The lawyer also asked appeals board members to judge his clients’ action in the context of past history. Pottle reported the previous landowner (Lewis) properly maintained the view easement, but his client began having problems with the new owners (Wagners). He described how the Molinellis  submitted to local code enforcement  officials an approved vegetative maintenance plan. “I’m asking you to look at the history before 2017. My clients worked in collaboration with the town and presented a plan approved by Dan Bryer (former CEO) and Clark. Then in September 2015, a new CEO was hired, and we believed our emails about our plan were also approved by Art Dunlap.”

But Boothbay attorney Sally Daggett painted a different picture of the circumstances surrounding the notice of violation. She told board members that Lorrain and Clark witnessed 10-15 trees cut in the shoreland zone. She also indicated a permit was never issued for the vegetative maintenance. “No permit was ever issued. Not by Dan Bryer. Not by Art Dunlap. Not by Jason Lorrain. Just because somebody received an email, and didn’t respond doesn’t mean approval,” Daggett said.

After testimony concluded, board member Jeanne Fuller said: “It’s like hearing two different stories.” This resulted in a 45-minute recess so the board could perform a site review. When the board returned, it began deliberations. The five members – Dick Perkins, James Tonon, Fuller and alternates David Steinmetz and Martin Page unanimously upheld eight violations.

After the hearing, Pottle said his clients would consider their options prior to deciding their next course of action. The board will reconvene at 5 p.m. Tuesday, May 29 to sign a draft copy of its decision.