Tom Myette and Chandler Wright of 29 and 35 McKown St., Boothbay Harbor lost their Nov. 19 appeal of Code Enforcement Officer Geoff Smith's lifting of a stop work order on abutter Dennis Hilton's 14 Todd Ave. construction. The order was issued Sept. 17, lifted on Sept. 25 and the appeal was filed Oct. 22. Kristin Collins of PretiFlaherty represented Myette and Wright at the hearing; Mary Costigan of Bernstein Shur represented Smith; Jim Katsiaficas of Perkins Thompson represented the appeals board; and Linda Yarmosh represented Hilton.

Hilton’s first permit was issued in March for renovations to the original building. The dimensions – 15-foot height, 20-foot by 22-foot main building, 18-foot by 10-foot back end (620 square feet) – did not change. In June, Hilton requested demolition and reconstruction with expansion: a new foundation, a roof pitch increase (from 15 feet to 16 feet) and 22 feet by 22 feet (644 square feet total) for the main part of the building. When Smith issued his order, he requested new plans illustrating apparent changes from the June permit.

The structure departs so much from the original in square footage, height, footprint, style and orientation, it should be considered a new build, Collins argued: A new height of about 23’, a 90-degree rotated roof with a dormer, expansion of the main part of the building to 23 feet, six inches by 25 feet, seven inches (601 square feet) and of the back end to 18 feet by 12 feet, one inch (217 square feet) for a total of 819 square feet.

Collins cited town code §170-61 A. and B., on the basis for applications to go to a site plan review with the planning board: construction of new commercial, office, industrial, recreational or institutional uses and expansions of 25% or greater for a nonresidential building. Collins argued either could be considered breached and Smith, by lifting the stop work order, effectively granted a new building permit by allowing the new plans his office requested of Hilton on Sept. 17 to move forward.

Smith said he issued the order to determine if Hilton planned to install a second level in the reconstruction which would have been a violation. “There was no second floor area created … What we are seeing are ceiling joists which were decked over for use of roof construction …”

The appellants’ math showing over 25% expansion was incorrect, Smith added. The figures amount to the square footage of the original building only and the new building's square footage including overhangs. Comparing square footage without overhangs – approximately 624 square feet versus 724 square feet – would bring the expansion to just under 14%, not over 30%, Smith continued. “It was the same footprint I permitted, it was the same expansion that I permitted, it was the same square footage and the only difference was this increased height which … is well below our building limitation … and was simply a de minimis change that frequently happens with many construction projects … Seeing the building conformed to the code and conformed to my building permit, I (lifted) the stop work order …”

Costigan said the June permit amounted to demolition of a building and reconstruction at an expansion well under the 25% limit. She said if the abutters wanted to appeal the decision, it should have been within the 30-day requirement from issuance of the permit.

“This really is an attempt to appeal the issuance of a building permit in June out of time. That's really where we are … You may as a board think that building permit should have first gone to the planning board. It is too late to talk about that or make any changes.”

Collins said based on the completely different look of the building, the obvious course would be to kick the project back to the planning board, especially considering the eight-foot height increase, 90-degree rotated roof and dormer. “They did not take an existing building and build onto it … That is building a new building (and) that stop work order should not have been lifted without a new building permit in place.”

Board chair Merritt Blakeslee said the board had to consider the record as it applies to the lifting and why the order was issued: obtaining new plans ensuring there is no construction of a second floor. “So, my inclination based on what we heard tonight is that the code enforcement officer's decision should not be overruled.”

All board members agreed. Member David Racicot said if an appeal of the June building permit had been issued, the board might have recognized the need for the project to go back to the planning board. “But at this point since we're not asked to look at that, I agree that the facts in the record support the lifting of the stop work order.”

The board voted 5-0 to uphold the lifting. With seven days to issue a written decision, members agreed to reconvene for a vote at 3 p.m. Nov. 24 to approve the findings of fact and conclusions of law.

Shortly after the hearing, Myette commented to the Boothbay Register: “I only realized a mistake had been made when I saw the huge scale of the new building and was prompted to pull the town's file … It is remedied by going to superior court – we will appeal,” he said.