Boothbay Harbor business owner Tom Myette and neighbor Chandler Wright are appealing a code enforcement decision on abutter Dennis Hilton and his business Harbor Crossing at 14 Todd Ave. Myette and Wright have filed a complaint in Lincoln County Superior Court. On Nov. 19, the town board of appeals denied Myette’s and Wright’s Oct. 22 appeal over Code Enforcement Officer Geoff Smith’s decision to lift a stop work order on Hilton’s construction.

Myette’s and Wright’s attorney Kristin Collins of PretiFlaherty filed the complaint Dec. 9 calling for the court to decide if the stop work order’s lifting was, as the complaint contends, a “de facto new building permit” which would send the project back to the planning board for site plan review.

The complaint details the construction which began with a March 26 building permit for basic renovations issued June 2 by Smith. On June 5, Hilton applied for a new permit asking to demolish the 20 by 20-foot building, rebuild at 22 by 22 feet and to raise the height to 16 feet at a new pitch.

Smith issued the permit June 8, but did not provide notice to Myette or Wright, according to the complaint and, “The Town did not publish notice of either building permit application as required under ... the Land Use Code.”

Myette believed Hilton was making basic renovations or replacing his building until early September when it became apparent to him the new building looked different. Myette complained to Smith the building looked larger and Smith issued a stop work order Sept. 17 which required submission of new plans. Hilton’s new plans showed a new height of over 23 feet with a dormer, expansion of the main part of the building to 22-foot by 24-foot and expansion of an ell portion from 18 by 10 feet to 18 by 12 feet, one inch. Smith lifted the order Sept. 25 saying the submitted information sufficed and did not issue a new permit requiring the planning board to conduct a new site plan review.

Said the complaint, “The structure as constructed was so significantly different from the structure permitted under building permit 20-41 that the Code Enforcement Officer should have required a new building permit … and erred in releasing the Stop Work Order because it authorized a new commercial building for which site plan review by the Planning Board should have been required pursuant to ... the Land Use Ordinance …”

Count 1 of the complaint, a rule 80B appeal, cites several points in the land use ordinance and argues Smith erred in releasing the stop work order, not issuing a new building permit, not requiring site plan review by the planning board, and using correspondence rather than a building permit which would have allowed plaintiffs the chance to appeal.

Count 2 argues the current building is a new structure requiring planning board approval, that lifting the stop work order does not mean site plan review is not required, and that Hilton is not to continue work on the building until the project has site plan approval.

A court date has not yet been set, according to Myette. Neither Hilton nor Smith immediately returned messages.

“I think the complaint speaks for itself,” said Myette. “ Given the fact that the builder waited over 30 days after he got the June permit to start building – that closed any window on appeal irregularly.”