Site plan appeal 2021

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

October 5, 2021 Via Electronic Mail and Hand Delivery Boothbay Harbor Zoning Board of Appeals c/o Geoff Smith, Code Enforcement Officer Town of Boothbay Harbor 11 Howard Street Boothbay Harbor, ME 04538 Re:

Administrative Appeal Eastside Waterfront Park Map 16, Lot 24

Dear Members of the Board: On behalf of my clients, Joseph and Jill Doyle, enclosed please find a Board of Appeals Application and filing fee for an administrative appeal of a decision by the Boothbay Harbor Planning Board approving an application to amend an existing site plan approval (“Amendment Application”) by Boothbay Harbor Waterfront Preservation (“BHWP”) regarding the construction of certain improvements on its property located at 65 Atlantic Avenue (the “Site”).

Background In October of 2020, the Planning Board approved a site plan application for construction of a waterfront park and other improvement at the Site.1 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.

The site plan included a “75’ setback” line which was clearly incorrect given the location of the high water line shown on the plan, 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).

1

A copy of the Planning Board’s October 14, 2020, decision and approved site plan are attached at Exhibit “A.”

October 5, 2021 Page 2 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 adjacent to their home.

The Doyles raised these concerns with the code officer in a letter dated August 13, 2021.2 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. The Doyles received no response to their August 13th letter.

The Town, however, apparently contacted BHWP regarding the violations identified by the Doyles, and, in response, BHWP filed an “after-the-fact” Amendment Application with the Planning Board on August 23, 2021. The Doyles were not provided notice of the August 23rd filing.

Amendment Application The Amendment Application states that it includes “[r]evisions to the approved Site Plan dated 10.14.20.”3 The amendments include: 1.

A reduction in the area of the brick paver gathering area and walkway by 670 square feet;

2.

An increase in the diameter of the splash pad from 25 feet to 41 feet (an 80% increase in the size of the structure, including the surrounding wall); and

3.

Relocation of the splash pad “uphill” from the approved location.

Although BHWP had the burden of showing that the amended site plan complied with the site plan review standards, it did not provide any narrative or other such explanation. Although the splash pad nearly doubled in size, and was moved immediately adjacent to an existing residential structure, the applicant failed to increase any buffering or other measures to address the impact on the abutting property.

Planning Board’s September 8th Decision As with the October, 2020 meeting, the Doyles did not receive notice of the Planning Board’s review of the amendment application.4 Following review of the Amendment 2

A copy of the August 13, 2021 letter is attached at Exhibit “B.” A copy of the Amendment Application is attached at Exhibit “C.” 4 After realizing that they had not received notice of the October, 2020, Planning Board meeting due to the fact that the Town had not updated the Doyle’s address, the Doyles had provided the Town with their corrected address, but this correction was not made to the Town’s records, and the notice of the 3

October 5, 2021 Page 3 Application, the Planning Board voted to approve the application.

In its September 8th decision (attached at Exhibit “D”), the Board did not include any written findings in support of its approval. The decision document does not evaluate the additional impacts on the Doyle’s property due to the change in size and location of the splash pad. Further, the revised plan purports to include a “neighborhood grocery store” within the existing structure housing the “two apartments.” The narrative portion of the Amendment Application does not mention a grocery store nor does the September 8th decision discuss the impacts of such a use, including for parking, traffic, hours of operation, or any other details relevant to the site plan review standards.

Notice of the Planning Board’s September 8th meeting and decision was obtained only because the Doyles followed up on their August 13th letter. For the reasons set forth below, the Board of Appeals should grant the Doyles’ appeal and vacate the Planning Board’s September 8th decision.5 Jurisdiction Under Section 170-108(D)(2)(a), the Board of Appeals has jurisdiction to hear appeals from decisions of the Planning Board. The Board of Appeals acts in an appellate capacity in such appeals.

Standing The Doyles are direct abutters to the Site and the proposed project. As such, they are “persons aggrieved” as that term is used in the Ordinance.6 Allegation of Error and Request for Relief The Planning Board approved the Amended Application under the Town’s site plan review ordinance, and the purpose of site plan review is to ensure that any proposed nonresidential development, among other things, will not “adversely impact” adjacent properties.7 Under Section 170-72(D), any change from previously approved plans requires review and approval by the Planning Board under the Ordinance—meaning a full review to ensure that any changes to the proposed development comply with the site plan review standards.

With these requirements in mind, the following are our allegations of error in the September 8th decision:

September 8th Planning Board meeting was sent to the wrong address. Nor did the Town’s website include notice of the September 8th meeting.

5 This appeal has been filed within 30 days of the action complained of, in accordance with Section 170109(A)(1) of the Ordinance.

6 In accordance with Section 170-109(A)(3)(c) of the Ordinance, an abutters list is attached at Exhibit “E.” 7 Ordinance § 170-60.

October 5, 2021 Page 4 1.

Incomplete Application

Section 170-66 of the Ordinance requires applicants to provide details of the proposed development sufficient to permit the Board to find that the project complies with the applicable standards. These submission requirements apply to all applications, including applications to amend existing permits, unless waived by the Planning Board. BHWP’s application is incomplete as it has not provided topographical information, the direction of surface water flow, the location and dimension of signs, location of proposed lighting and the 75 foot setback from the high water mark is incorrect. No data is provided regarding final grading, including grading around the new splash pad location, nor has BHWP submitted information regarding handling of solid waste, the size and type of all proposed plantings, a schedule of construction, the location of equipment that will generate noise at the property line, and traffic estimates including daily and peak use. These are all mandatory application requirements.

Further, unless the Planning Board issues a written finding that the following information is not necessary, BHWP was required to provide a stormwater plan, information regarding erosion and sedimentation controls, a planting plan, cross sections and other details of all sidewalks and the cost of construction, including financial capacity. No such findings exist in the Planning Board’s decision waiving these application requirements.

Finally, the revised plan shows “two apartments” and a “neighborhood grocery store” where previously the plan showed an “existing historic home.” If BHWP intended to obtain site plan review approval for a new grocery store it has provided no information to the Planning Board regarding the impacts of such a new use, including, but not limited to, parking and traffic impacts.

These are substantive errors. The application requirements exist to ensure the Planning Board has all the information necessary to evaluate the proposed project for compliance with the performance standards. Without this information it is not possible for the Planning Board to confirm that the project will not adversely impact abutting properties.

Given this, the Board of Appeals should remand this matter to the Planning Board with instructions to require the applicant to submit a complete application, or to issue findings on each application requirement waived by the Planning Board.

2.

Inadequate Findings

The Planning Board’s decision merely recites the applicable standards and then indicates the vote tally on each standard. It does not provide any findings in support of its determination that BHWP’s proposed revised project complies with the applicable standards. Such findings are legally required in order to permit the Board of Appeals to review the decision and for adequate judicial review.8 As there are no findings to permit the Board of Appeals to engage in any meaningful appellate review, the decision should be remanded to the Planning Board with instructions to issue adequate findings.9 8 9

See Chapel Road Associates, LLC v. Town of Wells, 2001 ME 178, ¶ 12, 787 A.2d 137, 140-41.

See id. 2001 ME 178, ¶ 13, 787 A.2d at 141.

October 5, 2021 Page 5 3.

Errors in Approving the Amended Application

In addition to the errors cited above, the Planning Board’s September 8th decision should be vacated for the following reasons: First, the revisions include a significant increase in the size of the splash pad, which is a public recreational feature that will generate significant noise and other impacts. Increasing its size and relocating it immediately adjacent to an existing residential structure will lead to unreasonable adverse impacts to existing uses. Nor is their sufficient buffering or setbacks to ensure this larger feature complies with the site plan review standards.

Second, the Amended Application also purports to propose a new store on site. Existing and proposed parking is inadequate to support such a use, and the Planning Board was not provided with any information regarding the type of store, hours of operation, lighting or security, or traffic and parking. The Planning Board cannot approve such a use without detailed information regarding the proposed operations for the store and without findings setting forth how such a new use complies with the Ordinance standards.

Third, this project is located entirely within the shoreland zoning district and it requires review and approval by the Planning Board under the Town’s shoreland zoning standards. This has not occurred, and thus the Planning Board erred by only issuing a decision under the site plan review section of the Ordinance. Further, BHWP has indicated in its Amendment Application that its project exceeds the 20% cap on non-vegetated surfaces, which violates the Town’s Ordinance requirements. It is also unclear whether the lot is sufficiently large for BHWP to meet the collective minimum lot size requirement for the numerous uses it has proposed.10 For these reasons, we respectfully request that the Board of Appeals vacate the Planning Board’s September 8th decision. As proposed, this project will result in an unreasonable adverse impact to the Doyles use and enjoyment of their property, and it violates numerous requirements in the Town’s Ordinance.

Thank you for your attention to this matter and we look forward to answering any questions you may have.

Sincerely,

Scott D. Anderson

10

The Ordinance requires 40,000 square feet of lot area for a public/private recreational facility and 30,000 square feet for each residential dwelling unit. A grocery store requires an additional 40,000 square feet. Ordinance § 170-101.10(A)(1). For the uses shown on the plan (setting aside future plans for a restaurant and setting aside the marina) this lot must be at least 140,000 square feet, and it measures only 38,000 square feet. At this size even the park and two residential dwelling units exceed what is permitted on this site.

October 5, 2021 Page 6 SDA/mtt Enclosures cc:

(via electronic mail) John O’Connell, Boothbay Harbor Waterfront Preservation Mitchell Rasor, MRLD Principal John Cunningham, Esq.

15289389_1

TOWN OF BOOTHBAY HARBOR 11 Howard Street, Boothbay Harbor, ME (207) 633-3671

04538

Board of Appeals Application Please Type or Print Applicant’s Name: Joseph and Jill Doyle Phone# 207-253-4540 Applicant’s Mailing Address: c/o Scott Anderson, Verrill, One Portland Square, Portland, ME 04101 Street/P O B

State

Zip

Applicant’s Interest in Property: Abutters Property Owner’s Name: Boothbay Harbor Waterfront Preservation

Map # 16

Lot # 24

Property Location: 65 Atlantic Ave. If property is part of a subdivision, give subdivision name and date: n/a Zoning District: Ltd Commercial/Maritime Give the Code Reference, Chapter: 170

Present Use: commercial , Article: X , Section: 108 , Subsection: D(2)(a) , Page #:

Administrative Appeal Is this an administrative appeal or a request for a variance?__________________________________________ Give the reason why you are making this request and any other important facts: Please see the attached.

NOTICE: The Board of Appeals will require a minimum of 72-hours, in which to review and compare any additional material or correspondences submitted by the applicant(s) or a representative of the applicant(s). Materials submitted at a meeting will cause a minimum 72-hour delay of any decision.

Fee is $250.00 (+$

for each abutter x

,) = $

Date Approved/Denied:

.

Date of Public Notice: 1st:

, 2nd:

, Abt.’s

--Form continues on the reverse side--

board-of-appeals-application-2020 (1) 2/23/2021

Page 1 of 2

Bd.

VARIANCE REQUEST JUSTIFICATION OF A VARIANCE: In order for a variance to be granted, the applicant must demonstrate to the Board of Appeals that the strict application of the terms of the zoning codes would cause undue hardship.

There are four criteria which must be met before the Board of Appeals can find that a hardship exists. Please explain how your situation meets each of these criteria listed below: The land in question cannot yield a reasonable return unless the variance is granted: n/a

The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood:

n/a

The granting of a variance will not alter the essential character of the locality: n/a

The hardship is not the result of action taken by the applicant or a prior owner: n/a

I certify that the information contained in this application is true and correct.

Joseph Doyle

Digitally signed by: Joseph Doyle DN: CN = Joseph Doyle email = joed32082@gmail.com C = US Date: 2021.10.05 10:28:40 -04'00'

Applicant’s Signature and Date board-of-appeals-application-2020 (1) 2/23/2021

Page 2 of 2

EXHIBIT A

EXHIBIT B

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

August 13, 2021 Via Electronic Mail Geoff Smith, Code Enforcement Officer Town of Boothbay Harbor 11 Howard St. Boothbay Harbor, ME 04538 Re:

Eastside Waterfront Park

Dear Geoff, Thank you for your letter dated August 3rd. I have reviewed the permitting file and, again, thank you for providing that information. As I noted in my initial filing with the Board of Appeals we are attempting to move expeditiously to identify any questions or errors with the Planning Board’s prior review of the development proposal by the developers of the Eastside Waterfront Park and I have the following questions and raise a few items of concern.

As an initial matter I should clarify that my clients are supporters of this waterfront park and, in fact, have donated funds to Boothbay Harbor Waterfront Preservation (“BHWP”) for the project. They also support public access to the waterfront for commercial fishing and are grateful that a developer is interested and committed to renovating and restoring this site. For some reason, however, my clients did not receive notice of the Planning Board’s review last year and BHWP has not responded to repeated requests for information about its actual plans. We are concerned that the current construction is proceeding in a manner inconsistent with what the Town approved and we are simply seeking clarity regarding what has been authorized and what aspects of the operation and use of this site are still subject to Town review and permitting/licensing.

1.

October 14, 2020 Planning Board Decision

In its application and as noted on its website, BHWP proposes numerous uses for its property, including a pier/dock/wharf structure for commercial fishing, marina, retail establishment, multi-family residential, and a public recreation park. In its permitting decision, the Board voted in the affirmative that the proposed development met the site plan review standards in §170-61, although there are no findings included in the decision document explaining how the project complies with these standards.

August 13, 2021 Page 2 Our concern is that neither the application nor the Planning Board’s decision discusses how BHWP’s proposal complies with the zoning requirements to accommodate all of these uses in terms of parking, ingress and egress, lot size, traffic, pedestrian use, and other standards. As one example, in its application BHWP claimed it is “grandfathered for traffic” which, of course, is not true. BHWP is redeveloping the entire site and adding new uses and it does not appear that a traffic study was submitted, nor a waiver granted.

Regarding the retail store, no information is included regarding what type of store (such that the Town can assess whether it is a permitted use in this zone), hours of operation, parking requirements, etc. Is the “marina” for short-term transient day use or will it be a more formal commercial operation? Will commercial fishing operations be open or will BHWP be leasing space or otherwise restricting access? Without this information, and in the absence of any written findings, it is unclear what the Planning Board approved last October.

Given this, it would be helpful to understand the Town’s position on what BHWP is permitted to do pursuant to the October, 2020 Planning Board decision. I assume the Board has only authorized the construction of the physical improvements shown on the October 14th site plan, and that BHWP will be required to return to the Planning Board for site plan approval of any specific retail operation, marina operation, restaurant or commercial fishing activity. It would also be helpful if the Town could confirm that, prior to hosting any events on site, BHWP will be required to obtain a license under Chapter 124 of the Town’s code.

2.

Compliance With October, 2020 Planning Board Decision

The final site plan shows the so-called “splash pad” located more than 100 feet from Atlantic Avenue and approximately 40 feet behind the abutting residential structure to the North (partially shown at the top of the plan). Although I have not been on BHWP’s property to measure this structure, I have viewed the construction from the street, and the splash pad is clearly larger than the 25 feet in diameter proposed by BHWP and shown on the plan, and is located closer to Atlantic Avenue.

As I appreciate you know, Section 170-72(D) provides that the Planning Board’s October, 2020 approval is “dependent upon and limited to the proposals and plans contained in the application and supporting documents submitted and affirmed by the applicant.” We respectfully request that you investigate whether BHWP is proceeding in a manner inconsistent with the submitted plans and require either the reduction in size and relocation of this structure or require the applicant to return to the Planning Board for an amendment.1 3.

Shoreland Zoning

Although the Board voted that the proposed project complied with the Town’s site plan review standards, I did not see any reference to compliance with the shoreland zoning standards 1

The change in size and location of the splash pad are not “minor” changes necessary to address field conditions, and moving this recreational feature closer to an abutting residential property will result in significant increased impacts and would require review and assessment by the Planning Board. Also, does this feature operate with recirculating water or is there a discharge to the harbor? If the latter, we are wondering whether this issue was evaluated by the Planning Board.

August 13, 2021 Page 3 set forth in Section 170-101.10. If the Board issued a separate permit under shoreland zoning I would appreciate a copy of that permit. If the Board has not reviewed BHWP’s plans under the shoreland zoning standards I assume this is an oversight and BHWP will be directed to cease construction unless and until it obtains such approval.

Assuming BHWP obtained a shoreland zoning permit, I have some concern that the proposed development may not comply with several shoreland zoning standards. First, the socalled “Splash Pad” meets the definition of “structure” and must be 75 feet from the high water line. No setback is shown on the site plan submitted with the application. The new parking area is also subject to the 75 foot setback, and does not appear to comply with that requirement.

Second, as noted above, BHWP proposes numerous uses for its property, including a pier/dock/wharf structure for commercial fishing, marina, retail establishment, multi-family residential, and a public recreation park. BHWP’s lot is less than an acre and has about 141 feet of water frontage. Section 170-101.10(A)(1) requires 30,000 square feet of lot area per residential dwelling unit and 40,000 square feet for public/private recreational facilities. Section 170-101.10 (A)(5) provides that if more than one use will operate on a lot, all dimensional requirements shall be met for each use. Even if all proposed commercial uses are tied to commercial fisheries or maritime activities (which is not clear) this lot must be at least 130,000 square feet to accommodate the park and three dwelling units. Similarly, the lot has insufficient frontage to maintain all uses proposed by BHWP. Third, lot coverage is capped at 20% and based on a rough calculation from the site plan the parking area/driveway, house, splash pad and brick walkway appear to exceed this figure.

Fourth, and finally, multi-unit residential use is not permitted in the LC/M district and so we are hoping to obtain clarification that any such use was not discontinued for a year or more. * * * * * * * * * * Given this we respectfully request: A. Confirmation that the October, 2020 Planning Board decision authorizes only the construction of the physical improvements shown on the final October 14, 2020, site plan, and further Planning Board review and approval will be required prior to operation of any retail, marina, restaurant, commercial fishing operations, or any other specific use on site; B. Confirmation that the “splash pad” is not larger in size than proposed by BHWP and is located as shown on the final site plan; and C. Confirmation that BHWP has received approval by the Planning Board under the Town’s shoreland zoning ordinance provisions and that the site and proposed uses comply with the requirements set forth in Article VIII of the Land Use Ordinance.

With this information we will be able to assess whether to proceed with our July 28th appeal with the Board of Appeals.

August 13, 2021 Page 4 Thank you.

Sincerely,

Scott D. Anderson

SDA/mtt cc: Joseph Doyle

15199824_1

EXHIBIT C

EXHIBIT D

EXHIBIT E

Exhibit E/Abutters List Boothbay Harbor Waterfront Preservation PO Box 55 Boothbay Harbor, ME 04538 (Map 16, Lot 24; Map 16, Lot 118, 119) Donna Piggott 62 Atlantic Ave. Boothbay Harbor, ME 04538 (Map 16, Lot 117) PGC8 LLC PO Box 757 Boothbay Harbor, ME 04538 (Map 16, Lot 116) Town of Boothbay Harbor 11 Howard Street Boothbay Harbor, ME 04538 (Map 16, Lot 23)