Boothbay Harbor property owners Tom Myette and Chandler Wright prevailed June 28 in an appeal to Maine Supreme Judicial Court concerning the town’s handling of a new structure at the abutting Harbor Crossing property at 14 Todd Ave. The ruling vacates Lincoln County Superior Court’s August 2021 judgment affirming Boothbay Harbor Board of Appeals’ decision that Code Enforcement Officer Geoff Smith was within his right to lift a stop-work order for Harbor Crossing’s construction of a new building.

Harbor Crossing owner Dennis Hilton’s original plan in March 2020 was to renovate a building for a real estate branch; the planning board approved it in May 2020. In June 2020, Harbor Crossing reported to Smith the building was in such poor shape, they wanted to demolish and rebuild, extending the 20’ x 22’ footprint to 22’x 22’, changing the pitch of the roof and elevating the height from 15’ to 16’. They submitted a new application which was approved by Smith, but did not undergo site plan review by the planning board and no public notice was published or given to abutters, according to court documents and Boothbay Register files.

Smith issued the stop-work order in September 2020 after receiving a complaint. The order was on the grounds that the work being done did not match the approved plan. Harbor Crossing submitted new building plans a week later and Smith lifted the order, but no new building permit was issued.

“It is inexplicable to us how the town code enforcement office allowed Mr. Hilton’s company to build almost the exact building that the planning board denied to the prior tenant who wanted to purchase the building himself. Every property owner should live by the rules, not just the few that play by them.”

Myette and Wright appealed the lifting of the order in October 2020 arguing it constituted a new permit by default. The Board of Appeals ruled in favor of Smith’s decision the following month, and Myette and Wright appealed to Superior Court in December 2020.

The Supreme Judicial Court’s decision initiates a chain of remands back through Superior Court, Boothbay Harbor Board of Appeals and Smith for appropriate proceedings. That includes evidence to be identified and recorded, opportunity for all concerned parties to submit and rebut evidence and for Smith’s decision to include findings of fact and conclusions of law.

Myette and Wright’s attorney Kristin Collins said the court’s decision holds that Smith did fail to publish notice for the June 2020 permit and by lifting the stop-work order, he triggered a separate right to appeal. “Harbor Crossing violated its permit and in doing so evaded site plan review, resulting in a building with drainage and lighting problems the planning board could have addressed.”

Myette said the court criticized a lack of transparency, lack of detail and recognized appellants could not possibly “box at shadows.” The proceedings have also cost all parties significant legal fees including Boothbay Harbor taxpayers, he said.

“The courts recognized that the code enforcement officer is not a prince, but an administrator of those rules. This ruling forces this permitting back into the light of day and we intend to take advantage of due process that was denied us before.”

The Boothbay Register reached out to Hilton, Boothbay Harbor Town Manager Julia Latter and Smith for comment. Hilton said he must continue to decline comment on the pending matter. Latter and Smith said they intend to comment after conferring with legal counsel.