Letter to Planning Board, Nov. '21

SCOTT D. ANDERSON PARTNER sanderson@verrill-law.com 207-253-4540

Verrill Dana LLP One Portland Square Portland, Maine 04101-4054 Main 207-774-4000

November 9, 2021 Via Electronic Mail and Hand Delivery Boothbay Harbor Planning Board c/o Geoff Smith, Code Enforcement Officer Town of Boothbay Harbor 11 Howard St. Boothbay Harbor, ME 04538 Re:

Boothbay Harbor Waterfront Preservation Eastside Waterfront Park/Map 16, Lot 24 Shoreland Zoning Application

Dear Members of the Board: On behalf of Joseph and Jill Doyle, direct abutters to the above-referenced project, I provide the following comments on the October 25, 2021 application and November 8, 2021 supplement (the “Application”) submitted by Boothbay Harbor Waterfront Preservation (“BHWP”) for a “waterfront park, marina, residential dwellings, and neighborhood grocery store.” For the following reasons the proposed project does not comply with the Town’s shoreland zoning ordinance requirements and the application should be denied.1 As an initial matter I should clarify that my clients are supporters of this waterfront park and, in fact, have donated funds to BHWP for the project. They also support public access to the waterfront for commercial fishing, green open space, and safe public access, and are grateful that a developer is interested and committed to renovating and restoring this site. We are concerned, however, that the current proposal fails to comply with Town ordinance standards. Further, the project has been characterized as a not-for-profit park, when in fact BHWP intends to operate a private marina, including renting space for luxury yacht sales, a commercial grocery store, and an apartment building, all of which are commercial, profit-making enterprises. We respectfully request that Planning Board treat this largely commercial, multi-use development as such, and evaluate the impacts of all proposed uses, including traffic and parking, to this area of Boothbay

1

The October 25th application is the same as the application filed back in September with the Planning Board. This prior application was withdrawn by BHWP after the Maine Department of Environmental Protection (“ME DEP”) determined that the project did not comply with the Town’s shoreland zoning standards. BHWP has not amended its project and, for the reasons set forth herein, it remains in violation of the Town’s ordinance requirements.

November 9, 2021 Page 2 Harbor. Finally, concerns have been raised regarding the safety of the pier structure, which should be addressed by the applicant prior to the issuance of any further permits.

Background and Planning Board History As the Board is aware, in October of 2020, the Planning Board approved a site plan application for construction of a waterfront park and other improvement at the Site. At that time, the project included retaining the existing residential and pier structures and the construction of a “splash pad” water feature, new parking, and brick paver pathways, among other improvements.

BHWP also proposed a “turf overflow parking” area to be located between the splash pad and Atlantic Avenue and they intended to retain an “existing historic home” in one of the existing structures. As such, BHWP sought approval for two land uses: a public park, and a single residential dwelling. Notably, the October, 2020 site plan did not include a store or any additional proposed uses.2 The October, 2020 site plan included a “75’ setback” line which was clearly incorrect (with no corresponding reference to the high tide line under the pier), and the splash pad was to be constructed immediately outside of this setback. The splash pad, which included the pad and surrounding wall, was proposed at 25 feet in diameter, and to be located approximately forty (40) feet behind the Doyles’ residence (shown to the north on the site plan). On October 14, 2020, the Planning Board approved the project, and issued a decision setting forth the Board’s votes on the Town’s site plan review standards. The Planning Board did not review the project under the Town’s shoreland zoning standards.

The Doyles did not receive notice of the Planning Board’s October, 2020, meeting and were not aware that the project was proceeding. When they arrived at their home in May of 2021, they noticed the construction of a much larger splash pad, located immediately adjacent to their home. BHWP refused repeated requests to provide copies of their construction plans or permits, and after contacting the Town several times, counsel for the Doyles was able to review the permitting file in August of 2021. At that time the Doyles realized that the splash pad was larger than permitted by the Planning Board and it had been moved approximately 40 feet back from the water, and immediately adjacent to their home. This new location will significantly increase the impacts of this recreational feature on the use and enjoyment of an abutting residential use, and no measures were required for buffering or other mitigation. The Doyles also noted that the project was located entirely within the shoreland overlay zone and yet BHWP had not sought, and the Planning Board had not granted, any permit under the Town’s shoreland zoning standards.

The Doyles raised these concerns with the code officer in a letter dated August 13, 2021.

In their correspondence, they noted that the change in size and location of the splash pad was significant as it increased the impacts on the abutting residential property.3 In response to the Doyles letter, the Town contacted BHWP regarding the violations identified by the Doyles, and,

2

The October 2020 site plan discussed by BHWP is attached at Exhibit “A.”

3

A copy of the Doyles’ August 13th letter is attached at Exhibit “B.”

November 9, 2021 Page 3 in response, BHWP filed an “after-the-fact” amendment application (“Amendment Application”) with the Planning Board on August 23, 2021.

The August, 2021 site plan differed from the original plan in several ways. First, the size of the splash pad was increased to 34 feet in diameter and the details of a granite retaining wall were included, bringing the total diameter of the splash pad to approximately 50 feet, nearly a 100% increase in its original size. The splash pad was also moved back on the lot, and was proposed to be located immediately adjacent to the Doyle’s property. No fencing, buffering or other mitigation was proposed. Second, BHWP doubled the number of residential dwellings, noting that the existing home was now to be used as two apartments. BHWP also added a “neighborhood grocery store” to the structure. In its Amendment Application, BHWP noted that the total impervious coverage equaled 29.47% of the lot. Although BHWP allegedly sought approval for a grocery store, no information was provided in the Amended Application regarding the size of the store, hours of operation, signage, lighting, anticipated traffic impacts, parking requirements or any other details to allow the Board to evaluate such a use for compliance with the Ordinance requirements.

Again, the Doyles did not receive notice of the filing of the application or of the Board’s September 8th meeting. Following its review of the Amended Application, the Planning Board acted on the application, again reviewing the project only under the Town’s site plan review standards, with no review regarding compliance with the shoreland zoning requirements.4 After reviewing the September 8th Planning Board decision the Doyles, again, noted to the Town that BHWP still had not applied for approval under the shoreland zoning ordinance.5 BHWP then filed its first shoreland zoning application with the Planning Board on September 27, 2021, which application was supplemented on October 12, 2021. On the day the Planning Board intended to review BHWP’s application, the Town’s Code Officer received an email from Colin Clark, the Shoreland Zoning Coordinator for the ME DEP. Mr. Clark determined that the two proposed apartments would need to meet the dimensional requirements under the Ordinance, and that the new parking lot needed to comply with the 75 foot setback.

Mr. Clark also noted that further ME DEP review and approval under the Natural Resources Protection Act (“NRPA”) was required.6 As such, the ME DEP just determined that BHWP’s project, which has not changed in the submittal before you, violated the Town’s shoreland zoning standards. As such, BHWP withdrew its application. BHWP has not made any changes to its application in response to the ME DEP’s notice that this project is unlawful and, therefore, the Application should be rejected 4

On October 5th the Doyles filed an appeal of the September 8th decision with the Board of Appeals. As the Planning Board is aware, the Board of Appeals has remanded the September 8th decision to the Planning Board.

5

Even after BHWP was informed by the Town that its project required a shoreland zoning permit, construction on site continued within the shoreland zone, in violation of the Town’s ordinance. The Doyles informed the Code Enforcement Officer that unpermitted construction was continuing, and Mr. Smith notified BHWP to stop work until the Planning Board could review the pending application.

6

A copy of Mr. Clark’s October 13th email is attached at Exhibit “C.”

November 9, 2021 Page 4 as it still does not comply with the Town’s standards for development in the shoreland zone.

Legal Issues Regarding Application of Shoreland Zoning Regulations I will first respond to the three arguments made by BHWP in its submission yesterday, November 8th, and then will address other concerns with BHWP’s Application.

1.

All Structures Related to the Park Are Subject to the 75-foot Setback.

BHWP argues that the proposed park is a “functionally water-dependent use” and, therefore, none of its structures must comply with the 75-foot setback from the high water mark.

If that was the case, then BHWP could have located the splash pad within the setback. It did not do so, however, because both the Town and the ME DEP have concluded that all structures associated with the park must be located outside the setback.

This is the case because when the ordinance says that a water-dependent use may be located within the setback it means those structures that, …require, for their primary purpose, location on submerged lands or that require direct access to, or location in, coastal or inland waters and cannot be located away from these waters.7 This definition applies to docks, piers, rock steps, and other structures that must be in the setback because they exist to provide access to the water. It is true that “uses that primarily provide general public access to coastal waters” are included, but not every aspect of the park.

The term “functionally water-dependent uses” exists to identify those structures related to public access that must be located on or over the water in order to allow physical access to the water— again, a dock, pier or other structure.

Neither the splash pad nor the parking area must be located “on submerged lands” in order for them to function. As such, while the dock and pier system may be located within the setback, the splash pad and parking area are structures that must comply with the setback.8 The ME DEP agrees that the parking lot must comply with the setback, with Mr. Clark stating in his email, The other issue at hand is the creation of the new parking lot which Mr. Anderson points out needs to meet the setback which I agree with since it is a new item on the lot [and] it would need to meet the setback.

7

Ordinance § 170-101.12 Nor is the parking lot primarily for the park. In response to parking questions raised by the Planning Board in 2020, BHWP noted that the lot would be used by the residents of the apartments. To the extent the Planning Board approves a grocery store in the shoreland zone the parking lot will also be used for that use. Neither the store nor the apartments are “functionally water-dependent uses,” so for many reasons the new parking lot must be located outside the 75-foot setback.

8

November 9, 2021 Page 5 As the parking lot is still located within the 75-foot setback the Planning Board should reject the Application.

2.

The Parking Lot is New and is Subject to the Setback

As noted by the ME DEP, the proposed parking lot is a “new item on the lot” and must comply with the 75-foot setback. BHWP ignores this, and argues that the lot is a “relocated nonconforming structure” as it “replaces” the prior parking lot. This argument fails, because the prior use of the site for a hotel has been permanently discontinued. BHWP is not “relocating or replacing” a hotel parking lot. Instead, is has completely removed all structures associated with the prior use and has constructed a new parking lot to serve a new development.

This is why the ME DEP has concluded the parking lot must comply with the setback and the Planning Board should reject the Application.

3.

All New Structures Must Comply with the 20% Lot Coverage Cap.

BHWP argues that it is merely continuing a “legally nonconforming condition” and thus this lot can permanently violate the 20% lot coverage cap, even at the prior 86%, for all time, for all property owners, and for all developments. This is not how grandfathering works under shoreland zoning or any zoning ordinance.9 It is the “purpose” of shoreland zoning “to promote land use conformities.”10 The objective of the Town’s shoreland zoning regulations, as with all zoning, is “to abolish nonconformities as speedily as justice will permit.”11 A grandfather clause exists only to allow the “limited continuance of nonconformities” in order to avoid a constitutional takings claim and zoning provisions that allow nonconformities are “strictly” interpreted to limit their application.12 Thus, the Town’s grandfathering/nonconformance provisions exist to ensure that the former owner could continue to maintain its hotel, restaurant, and other uses, including repairing or replacing its structures over time. These provisions do not exist to allow a new owner to completely redevelop this site with new uses while continuing to violate the Town’s shoreland zoning requirements.

Further, there is no general catch-all provision that applies to nonconforming “conditions.” Either you have a nonconforming use, lot or structure, and different rules apply to each different “condition.” “Structure” is defined broadly to include “anything built for the 9

As an initial matter, BHWP’s claim that lot coverage has been reduced to 29.47% is wrong by its own admission. Please see the recent flyer circulated by BHWP, attached at Exhibit “D,” stating that impermeable surfaces will be “less than 50”%. Our calculation is that 50% may be low, but even according to BHWP at least ½ of this site will generate stormwater runoff—and this development is supposed to be a “park.”

10

Ordinance §170-101.7(A).

11

Day v. Town of Phippsburg, 2015 ME 13, ¶ 15, 110 A.3d 645, 649.

12

Id.

November 9, 2021 Page 6 support…of…property of any kind” together with anything constructed with a fixed location on the ground.13 This includes parking areas. “Nonconforming structure” is defined as a structure that does not meet applicable dimensional requirements, including setbacks or lot coverage.14 Thus, the prior development exceeded lot coverage, due to the hotel, parking areas, and other structures located on the lot.

The problem for BHWP is that the Town’s Ordinance limits what you can do with nonconforming structures. Nonconforming structures may be repaired, expanded, relocated, or may be used for another purpose. BHWP is not, however, proposing to repair, retain, relocate or reuse any of the prior nonconforming structures. The Ordinance also permits, under certain conditions, the reconstruction or replacement of nonconforming structures.15 Thus, had the former hotel been damaged or destroyed by a hurricane or fire, the prior owner could have reconstructed or replaced the hotel and parking lot even though those were nonconforming structures.

None of these provisions, however, allow a property owner to remove multiple nonconforming structures associated with a prior development that is not continuing, and then install new nonconforming structures associated with a completely new and different use. Upon removal of the hotel/restaurant and associated parking areas, BHWP cannot replace these nonconforming structures with a nonconforming parking lot and other nonconforming structures that exceed the 20% lot coverage cap.

4.

The Project Must Comply with the Minimum Lot Standards.

The minimum lot area for a residential use, per dwelling unit, is 30,000 square feet when located adjacent to tidal areas. The park is a public recreational facility, which requires a minimum lot size of 40,000 square feet. The proposed store, which is not tied to any commercial fishing or maritime use, requires 40,000 square feet. Further, the Ordinance provides that, If more than one residential dwelling unit, principle governmental, institutional, commercial or industrial structure or use, or combination thereof, is constructed or established on a single parcel, all dimensional requirements shall be met for each additional dwelling unit, or principle structure, or use.16 As such, the minimum lot requirements must be added together, and for two residential dwellings, a commercial store, and a public recreational facility, BHWP’s lot must be 140,000 square feet, or more than 3 acres in size. The lot is only 38,000 square feet and, therefore, does not even meet the minimum lot size requirements for anything except the marina (which is not

13 14 15 16

Ordinance §170-101.12.

Ordinance §170-101.12.

Ordinance §170-101.7(C)(3). §170-101.10(A)(5).

November 9, 2021 Page 7 subject to this provision) and a single residential dwelling unit.17 Previously, BHWP has argued that there were five prior uses on this site and, therefore, it may replace those prior uses with new uses that are not subject to the minimum lot size requirements. There are two problems with this argument. First, as noted in the quoted language above, these minimum lot size requirements apply to each “dwelling unit, or principle structure” associated with each use. Thus, as noted above, the grandfathering provisions do not allow BHWP to remove prior nonconforming structures and replace them with new, and unrelated, nonconforming structures. The prior use of the upland area (other than the marina, which is not subject to the minimum lot size requirement) as a hotel and restaurant has been permanently discontinued. This is a new development and it must comply with the lot size requirement.

Second, even if the Board were to accept BHWP’s argument that it can violate the lot size requirements so long as it does not exceed the prior number of uses, the current application violates this interpretation. As noted previously by the ME DEP, there were four prior uses on this site: marina, hotel, restaurant, and a single residential dwelling unit in the house.18 Currently, BHWP is proposing five new uses: marina, park, grocery store, and two apartments (which apartments the ME DEP counts as two uses).

This is why the ME DEP, in Mr. Clark’s October 13th email, informed Geoff Smith that the second apartment was prohibited as it needed to comply with the minimum lot size requirement. Given this, the application as submitted does not comply with the Town’s or DEP’s requirements and should be rejected.

Further, BHWP has indicated that it wishes to operate a restaurant on the site in the future, which the ME DEP has concluded is another separate use. As the marina, park, grocery store and a single dwelling unit are all that is permitted on this lot—even if we accept BHWP’s argument that it can match the number of prior uses and violate the minimum lot size requirement—it cannot develop this lot with any additional uses, and the Planning Board should be clear, if it approves any use on this site, that BHWP cannot add a restaurant or any other use to this site in the future.

5.

No Further Clearing of Vegetation is Permitted.

The Ordinance provides that, In no event shall cleared openings for any purpose, including but not limited to, principal and accessory structures, driveways, lawns and sewage disposal areas, exceed in the aggregate, 25% of the lot 17

BHWP’s comment that minimum lot size requirements do not apply in the Limited Commercial/Maritime District is incorrect as that is not what the Ordinance says. The Ordinance exempts “commercial fisheries and maritime activities” from the lot size requirements when permitted in the applicable zoning district, but neither the park nor the grocery store are “commercial fisheries or maritime activities.” This exemption exists to encourage a working waterfront, and that is why the marina is not subject to minimum lot size requirements.

18

Please see the ME DEP site visit notes attached at Exhibit “E.”

November 9, 2021 Page 8 area within the Shoreland Zone or 10,000 square feet, whichever is greater, including land previously cleared.19 The entire lot is within the shoreland zone and thus BHWP may not remove any existing vegetation. The Planning Board should confirm that no vegetation has been removed.

6.

Pier Safety.

Section 170-101.11(D)(3)(a) of the Ordinance requires the Planning Board to find that the proposed development “will maintain safe and healthful conditions.” In 2018, the owners of the property obtained a quote from Prock Marine Company to replace the existing pier structure (attached at Exhibit “F”). It is our understanding from discussions with the prior engineers that the existing pier is structurally unsound, and there are questions regarding whether it can be safely used by the public. As the applicant seeks approval to operate a public park, it should be required to submit a structural assessment of the pier system. If improvements are required to make the pier safe that should be part of this application, as it might impact erosion and sedimentation controls, and the Board will need to evaluate any change in the size or orientation of the pier.

Missing Information Prior to taking any action on the application, the Planning Board should require BHWP to submit the following information: Erosion and Sedimentation Control (§170-101.10(Q)) All activities which involve filling, grading, excavation, or other similar activities must provide a written soil erosion and sedimentation control plan. No such plan has been submitted with the Shoreland Zoning Application and thus the Planning Board should take no action on the application until the application is complete.

Location of High Water Line Although the submitted plans include the alleged location of the 75-foot setback from the high water line, the location of the high water line is not shown on the plans. The “clean curved” setback line does not appear to conform to a naturally-occurring water line, and given the importance of confirming the location of the splash pad and other structures subject to this setback the Planning Board should require the applicant to show the location of the high water line.

Traffic and Parking BHWP has never provided the Planning Board with traffic estimates associated with these proposed uses or estimated parking requirements. As the DEP has concluded the new parking lot must be moved outside the setback it does not appear that this lot is feasible given the location of the existing home. BHWP should be required to amend its plan to comply with the 19

Ordinance §170-101.10(P)(4).

November 9, 2021 Page 9 structure setback and provide data to the Planning Board showing that existing parking is sufficient to support all proposed uses.

NRPA Permit from DEP BHWP has submitted its initial, 2020, NRPA permit, as part of its Application. As noted

by Colin Clark in his October 13th email, BHWP needs to obtain an amended NRPA permit from the ME DEP, and the Planning Board should not take action on the Application until the DEP has reviewed this site plan.

Conclusion For the foregoing reasons we respectfully request that the Planning Board: 1.

Require the applicant to submit an erosion and sedimentation control plan;

2.

Require the applicant to submit a structural assessment of the existing pier;

3.

Require the applicant to submit plans showing the location of the high water line;

4.

When the application is complete, submit the application to a third-party engineer for confirmation with applicable standards, including but not limited to the location of the 75 foot setback and the extent of non-vegetated areas;

5.

Deny the project, as currently proposed, for failure to comply with the Town’s shoreland zoning standards.

Thank you, and we will be available for questions on November 10th.

Sincerely,

Scott D. Anderson SDA/mtt cc:

(via electronic mail) Joseph Doyle BHWP John Cunningham, Esq.

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