Variance requests are rare for the Boothbay Harbor Board of Appeals. The board met March 5 for the first time in three years and the first time for members Merritt Blakeslee, Richard Burt, Lawrence Rebel and first alternate Rosemary Bourette. Scott See was reelected chair and Blakeslee was raised to vice chair. In member Robert Hilscher’s absence, Bourette participated as a voting member.

Katama Acquisitions LLC, represented by Meegan Burbank of Berry and Burbank Law Firm, was seeking a variance to allow its Sprucewold Lodge property at 4 Nahanada Road to continue its current uses which are at odds with the special residential zone it sits in.

Burbank noted the board granted such a variance to the property’s former owner in May 2016, but a recordable certificate was never issued and thus never filed with the registry of deeds.

The board voted to proceed with the new application ignoring the former application with the understanding the process would be much easier. However, the board hit some snags.

See said the board would have to vote on each of four criteria presented in the application: that the land cannot yield a reasonable return, need is due to unique circumstances, approval will not alter the character of the neighborhood and hardship is not self-made.

The second and third criteria were easily accepted by all members, but the first and fourth did not pass Blakeslee's legal eye without some issues.

“I do believe there is always in any variance a very high hurdle to get over on reasonable use and because in my understanding this could be sold as residential property, I am not convinced the applicant can get over criteria one,” said Blakeslee.

Burt said despite the property having a history of selling off parcels for residential uses, the facility could not be used for anything else without a variance.

“The only thing that could happen is if you take the facility down and sell it as single family homes … I think the key element here is unless we as a board think the only value is (doing that), then this item one is pretty clearly met,” said Burt noting the building’s status on the National Register of Historic Places.

The board voted 4-1, Blakeslee dissenting, that the applicant met the first criterion.

As the second and third criteria passed unanimously, Blakeslee interpreted the fourth criterion – that hardship is not the result of the owner or previous owner’s action – is not met because the owner never recorded the approval.

“I don't see any way that I can vote to find that this criterion is satisfied as much as I wish I could do otherwise.”

Code Enforcement Officer Geoff Smith reminded the board the previous owner was never given a certification to record, but Blakeslee said a proper response at the time would have been to come before the board of appeals again to request the paperwork.

Burbank said the board’s requirement by statute is to provide certification after approval and that it could not possibly be the fault of the applicant.

“The hardship that's created is the actual need for the variance in itself. Neither this property owner nor the previous property owner nor any property owner ever created the situation where a variance from the ordinance needed to be created. The ordinance was created after the property was already built.”

After some back and forth, the board voted unanimously in favor of the fourth and final criteria with the note that a variance had previously been approved on the same grounds with no changes to the property since, but was never issued or recorded.

The board followed the item by item vote with a master vote unanimously approving the variance request.