Memorandum To:
Joseph and Jill Doyle
From: Scott D. Anderson Date: February 4, 2022 Re:
Summary of Procedural and Substantive Violations by Boothbay Harbor Waterfront Preservation and the Town of Boothbay Harbor Overview
Boothbay Harbor Waterfront Preservation (“BHWP”) is currently seeking permits from the Town to develop a property on the site previously occupied by Captain Fish’s hotel and restaurant. BHWP’s planning, design, and permitting process has been repeatedly subject to misinformation, lack of notice, plan changes, lack of transparency, and repeated violations of state laws and local ordinances. Further, in processing BHWP’s applications, the Town of Boothbay Harbor has repeatedly made mistakes in processing and issuing permits for the proposed development, including a habitual failure to provide notice to abutters, the failure to require issuance of all necessary permits (including DEP) prior to construction, and by repeatedly ignoring Maine Department of Environmental Protection (“DEP”) communications that the proposed project violates Maine law. Timeline May 2020:
BHWP submits application for site plan review with Planning Board; Neither the Town nor the developer provide notice to the Doyles, an immediate abutter to the project;
October 14, 2020:
Planning Board issues a site plan review permit for marina and public park; as shown on the 10/14/20 site plan, it does not grant approval for a grocery store, restaurant, apartments, or any other use; the Town again does not notify the Doyles of the Planning Board meeting, as it has an outdated address on file. BHWP does not apply for or receive a shoreland zoning
permit even though the entire development is within the shoreland zone; May 2021:
DEP issues a NRPA permit for work within the NRPA setback from the harbor; Also during this time, the DEP concludes that BHWP does not need a permit to discharge wastewater from the splash pad to the harbor based on misrepresentations from BHWP that the discharge would be only clean “town water”; Doyles win Town permission to install a shared dock; A BHWP representative calls the Town and has the Doyles’ permit revoked. Over the next few months, Doyles spend significant time and money having their shared dock permit reissued; BHWP sues the Town for having issued a permit for the dock; over the next few months, the Doyles spend considerable time and money in the legal system validating the original issuance of the permit. BHWP withdraws its court case trying to prevent the Doyles from having a shared dock; BHWP begins construction on its property;
June 2021:
Doyles return to their home on Atlantic Avenue and realize that the splash pad is about twice the size as initially planned and that BHWP constructed it in the wrong place—immediately adjacent to the Doyles’ home; Doyles repeatedly attempt to contact BHWP for copies of plans, permits, or information about the project; BHWP ignores the Doyles;
August 2021:
Doyles attorney reviews Town permitting record for the project; he discovers BHWP is committing clear on-site violations of the permitted plan and the organization is proceeding to work without a required shoreland zoning permit;
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August 13, 2021:
Doyles notify the Town’s Code Enforcement Officer, Geoff Smith, that the construction is proceeding in violation of existing permits and without a shoreland zoning approval;
August 13-23, 2021:
At no point during this period did Geoff Smith respond to the Doyles’ August 13th letter or contact them in any way; instead, he apparently notified BHWP that their construction was not in compliance with the existing site plan permit, and that a retroactive amendment was necessary;
August 23, 2021:
BHWP filed a retroactive site plan application for approval of a much larger splash pad footprint, relocated immediately adjacent to the Doyles home; BHWP once again did not provide notice to the Doyles of their filing, even though it was the Doyles that had identified the need for a retroactive permit; Geoff Smith does not contact the Doyles to inform them of the filing nor does he contact the Doyles’ attorney, who had repeatedly requested a response to the August 13th letter; Instead, Geoff Smith sent the Doyles formal notice of the filing of the application to an address the Doyles had repeatedly told the Town was incorrect;
September 8, 2021:
The Planning Board holds a hearing and approves BHWP’s retroactive amendment to its site plan; again, Geoff Smith did not contact the Doyles or the Doyles’ attorney of this meeting, even though he understood that the Doyles had serious concerns about the status of the project;
September 9, 2021:
Having heard nothing from Geoff Smith, the Doyles’ attorney emails Mr. Smith again for update; Geoff Smith never responds to this email inquiry;
September 14, 2021:
In a discussion with the town attorney on another matter, the Doyles’ attorney learns of the September 8th Planning Board meeting for the first time; The Doyles provide Mr. Smith, again, with their correct address and also note that there was no notice of the 3
Planning Board’s September 8th meeting ever posted on the Town’s website; The Doyles, again, remind Mr. Smith that the project still does not have a shoreland zoning permit; After receiving the Doyles’ September 14th letter, Geoff Smith ignores the lack of a shoreland zoning permit and allows construction to continue at the site; September 23, 2021:
Having heard nothing from the Town, and given that construction continues without a shoreland zoning permit, the Doyles’ attorney sends a letter to Geoff Smith demanding he issue a stop work order until BHWP obtains a shoreland zoning permit;
September 27, 2021:
With no notice to the Doyles or their attorney, BHWP files an application for a shoreland zoning permit; Geoff Smith, again, fails to notify the Doyles of the filing;
October 1, 2021:
Having heard nothing from Geoff Smith; the Doyles’ attorney emails Mr. Smith for a response to the demand for the stop work order; Town attorney responds, stating that BHWP had stopped construction and that an application for retroactive permission has been filed which will be reviewed by the Planning Board on October 13, 2021;
October 5, 2021:
Doyles file an appeal of the Planning Board’s September 8th decision with the Board of Appeals;
October 12, 2021:
Having reviewed the application, the Doyles submit comments raising numerous concerns about violations of the shoreland zoning standards, including the fact that the new asphalt parking lot is a structure and must be located outside the 75-foot setback;
October 13, 2021:
Colin Clark of the Maine DEP informs Geoff Smith that the application filed by BHWP is in violation of the shoreland zoning standards, in part, because the new asphalt parking lot must be located outside the 75-foot setback. 4
BHWP withdraws its shoreland zoning application and they are removed from the October 13th agenda; October 25, 2021:
BHWP refiles it shoreland zoning application but does not comply with the DEP’s requirement to move the new asphalt parking lot outside the 75-foot setback;
October 28, 2021:
Board of Appeals holds hearing on the Doyles appeal of the September 8th site plan review permit; In the Doyles’ favor, Board of Appeals remands the decision to the Planning Board because it fails to contain any findings in support of the Planning Board’s decision approving the relocated splash pad;
November 10, 2021:
Planning Board holds hearing on shoreland zoning application; DEP objection to new asphalt parking lot is read into the record. Planning Board, code officer, and town attorney ignore the issue; over the objection of the Doyles, the Planning Board votes to approve the application prior to allowing any public comment in the hearing; The Doyles’ attorney has no opportunity to speak on the matter.
November 16, 2021:
Planning Board meets to finalize its decision to issue the shoreland zoning permit for the project; The Planning Board does not permit the public or the Doyles’ attorney to speak; Planning Board also responded to the Board of Appeals remand order and issued a written decision re-approving the September 8th site plan review permit; Planning Board bases its approval on its finding that the new splash pad is only 26 feet wide. In fact, it is almost double that size; Planning Board ignores the fact that the pad was relocated immediately adjacent to the Doyles’ home, and that BHWP misrepresented the location of the Doyles’ home on the plan; The Planning Board ignores concerns about the impact of this recreational feature and does not require fencing, buffering, or any mitigation of any kind; again, the Planning Board prohibits any public comment; 5
December 16, 2021:
Board of Appeals meets to review the Planning Board’s September 8th decision on remand; One member notes that the impacts of the larger and relocated splash pad were of some concern, but no further discussion about that issue takes place and the Board of Appeals voted to uphold the Planning Board’s September 8th decision. Essentially, five months after construction, this is a retroactive permit; At no point did the Planning Board or Board of Appeals require BHWP to install a vegetative buffer, even though this is required by the Ordinance; Both the Planning Board and Board of Appeals also ignored the fact that the splash pad, the park’s principal structure; is far less than 100 feet from the Doyles’ home, as required by the Ordinance; On this day the Doyles also filed an appeal of the Planning Board’s shoreland zoning permit with the Board of Appeals;
January 13, 2022:
The Maine DEP, again, sent correspondence to the Town that the new asphalt parking lot proposed by BHWP had to be moved outside of the 75-foot setback; this was transmitted by letter to the Board of Appeals; BHWP responds by suggesting that the Board of Appeals ignore the DEP and uphold the Planning Board’s shoreland zoning approval; in direct contradiction to the DEP’s position, BHWP continues to claim that its development plan is legal; That evening, the Board of Appeals holds a hearing on the Doyles’ appeal of the shoreland zoning permit; Board of Appeals refuses to review the January 13th DEP letter provided to the Board that day; Counsel for the Doyles notes that the contents of the January 13th letter are not new, and were communicated to the Planning Board three months prior, that the DEP email is in the permitting record, and that the Planning Board ignored it; 6
Board of Appeals again remands the Planning Board’s decision as it failed to contain adequate findings on the asphalt parking lot question and did not even discuss the DEP’s legal objection to the project; Board of Appeals also concerned that there is no evidence BHWP has obtained required state and federal permits for its project; Finally, the Maine DEP sends an email to the Town warning that a new “pavilion” proposed by BHWP cannot be located on the pier in the location of the former restaurant, and that it must be moved back as far as possible; The Maine DEP also determined that, due to misinformation provided by BHWP, it was revisiting its determination that the splash pad could discharge wastewater to the Harbor without a DEP license; State makes initial determination that splash pad should be treated like an outdoor shower, and that unlicensed discharges to the Harbor are prohibited; February 9, 2022:
Planning Board scheduled to take up remand order from Board of Appeals on shoreland zoning permit; Summary
For almost a two-year period, BHWP and the Town have repeatedly violated basic principles of due process and have committed numerous violations of the Boothbay Land Use Ordinance and the State’s Shoreland Zoning statue and regulations, including: •
Failure to provide adequate notice to the Doyles of permitting hearings, as required by the Ordinance, notwithstanding repeated instances of the Doyles providing their correct mailing address to the Town;
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Failure of the Town to require BHWP to obtain a shoreland zoning permit prior to construction;
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BHWP violating its initial Planning Board approval with no corrective action by the Town (until the Doyles’ persistent inquiries required action);
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•
Repeated instances of the Town refusing to respond to written notices from the Doyles that BHWP was acting in violation of its permits and the Town’s Ordinance;
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Planning Board decisions that fail to contain legally required findings;
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Planning Board ignoring express written notice from the DEP that the proposed project is unlawful;
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Failure by the code enforcement officer or town attorney to advise the Planning Board of the significance of the DEP’s position;
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BHWP’s inconsistent and contradictory application submissions, each including different proposed uses;
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BHWP’s failure to provide any objective data on traffic impacts and parking associated with proposed uses;
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BHWP’s apparent refusal to disclose to the Town, and abutters, its full plans for the site: will there be a store and apartments; are they proposing to construct a pavilion; how will wastewater from the splash pad be treated? These questions remain outstanding: *********
BHWP claims that it is developing the property for the benefit of residents and visitors to Boothbay Harbor, restoring it from its prior use as a motel and restaurant. Instead, it has proposed, and then withdrawn, and proposed again, a “park” that includes a store, apartment building, marina, boat sales, private and public events, and a 50 foot-wide “splash pad,” with none of these uses necessary for a “park,” and all of them proposed for simultaneous operation on a lot too small to handle this level of commercial and institutional activity. Only now is the public learning that the pier is unsafe, that BHWP will discharge wastewater into the Harbor, that the development’s 51-60% impervious surface exceeds the local 20% standard to an unreasonable degree, and that the project, sitting entirely within the shorefront zone, sought to avoid shoreland zoning requirements. During this process, BHWP has refused to meet, talk to, or listen to the Doyles, even though their home is 30 feet from the splash pad, and they will be impacted more than any other resident of Boothbay Harbor;
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Certain Town officials have helped BHWP take advantage by ignoring legal requirements, allowing development to proceed without the proper permits, selectively ignoring concerns raised by the DEP, and taking minimum enforcement actions only after repeated alerts by the Doyles of unlawful activity.
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