Boothbay Harbor Code Enforcement Officer Geoff Smith issued a notice of violation Sept. 6 to Boothbay Harbor Waterfront Preservation concerning its east side waterfront park at 65 Atlantic Ave. The notice listed unfinished permanent stabilization of exposed ground area, structures built outside of approved project scope and work within the special flood hazard area without the appropriate permit.

The first listed violation occurred after the demolition of the Cap’n Fish’s Motel buildings when ground first became exposed. Smith said he repeatedly asked BHWP to comply with permanent stabilization which is supposed to be finished within nine months of exposure. BHWP President John O’Connell sent an email Sept. 7 saying the organization’s contractor contracted COVID-19 which offset the work schedule; however, the work would be completed that day.

O’Connell said the other violations listed would require further counsel with the park’s attorney and architect. The second one was issued due to ongoing concrete work not indicated on the approved site plan. Smith said the work must stop until BHWP obtains a permit or, alternatively, the new structures could be removed by Sept. 28. The third item identified work within the special flood hazard area which requires a permit, one which Smith said BHWP does not have. He said work was to stop until that permit was obtained.

“Your contractor had called to let me know they would complete the (stabilization) work today,” Smith said in his followup Sept. 7. “I look forward to hearing how you and your team plan to resolve the other issues identified in my NOV.”

BHWP attorney Joe Siviski sent a letter to Smith Sept. 9 stating the concrete work identified as the second violation are a retaining wall consistent with original and amended site plans. The approved elevation and grading plan should have indicated the need for a retaining wall which is why the park revised its grading and erosion control plan in November 2021, said Siviski. “(It) expressly depicts a ‘proposed retaining wall’ (approximately) 2’0” high (with a) wood guardrail. The Planning Board has therefore already reviewed and approved the concrete structures currently being poured at the property.”

Siviski said development in the special flood hazard should also be covered. With the CEO responsible for issuing such permits, he asked if Smith’s interpretation of the town’s land use ordinance has changed since the October 2020 site plan approval, September 2021 amended plan and November shoreland zoning permit; if so, how and why, he asked. Siviski also shared an exchange between Smith and BHWP board Chair Charlie Bamberg from February 2021 in which Bamberg asked what else the park needs to move forward.

Said Smith, “Assuming that the plan is to stick with the basics involved with the site plan approval, you will just need to submit building and plumbing permits for interior renovations/remodeling, plumbing work, and/or new buildings.”

Siviski said BHWP was under the impression Smith did not consider any of its site plan work falling within the flood hazard area because neither he nor the planning board advised applying for a permit for any of the work during any of the application and approval processes or since. The ordinance requires a permit for any construction or development including placement of manufactured homes or any “manmade change to improved or unimproved real estate,” Siviski said.

“Since … October 2020, there have been several man-made changes to the property, several of which may have been within areas of special flood hazard, and all of which have been depicted or described in submissions to the planning board that you have reviewed,” Siviski said.

Smith was not immediately available for comment.

BHWP abutter Joe and Jill Doyle appealed the planning board’s September and November 2021 amended site plan and shoreland zoning approvals. The former appeal was denied by Boothbay Harbor’s board of appeals and remains stayed in Lincoln County Superior Court. The latter appeal was remanded from the BOA to the planning board in January and did not appear on any planning board agendas until Sept. 14’s which was at the request of the BOA.

The Doyles’ attorney Kristin Collins sent a letter to the planning board Sept. 12 asking members to consider the magnitude of the park’s impact on the shoreland zone. She said BHWP has spent the last eight months trying to get Maine Department of Environmental Protection to drop its objections and convince the town it does not need a shoreland zone permit.

“The town on July 25, 2022 refuted BHWP’s argument … meaning that BHWP remains where it was in January of this year: it must either proceed to the planning board and then back to the board of appeals, or it must modify its project to satisfy DEP’s objections. BHWP has taken advantage of the Town’s leniency in holding the required remand hearing.”

For more, see https://www.boothbayregister.com/article/doyles-file-second-appeal-bhwp-planning-board-approval/155343