Chairman recuses himself from vote, meeting postponed
Owls Head — At the Aug. 13 Owls Head Planning Board meeting, public opinion suggested the chairman of the board recuse himself from voting on whether to accept the findings of fact for a renovation project, because he took the applicants sailing the day before the meeting.
Chairman Robert Pratt recused himself although he said they did not discuss the application, and the board voted to accept his recommendation after several members of the public said they felt the trip created an appearance of bias. Pratt is a commercial boat captain.
Attorney for the applicants, Paul Gibbons, said he saw no reason for Pratt to recuse himself as he had no financial interest in the property.
The board was to vote on whether to accept the findings of fact and give final approval for a permit to renovate a structure at 5 Castlewood Lane that was recently deemed a risk due to its disrepair, and is currently the subject of complaint filed in court.
With Pratt unable to vote, there was not a quorum, so the review of the findings of fact was postponed to next month's meeting. Gibbons said the delay is unfair to his clients.
The owners of the shorefront lot, Doug and Leah Johnson of Andover, Mass., acting as Osprey Realty Trust, filed a complaint in Knox County Superior Court in July, seeking an overturn of the zoning board of appeals decision to nix the permit to allow the building to be set back 15 feet from its original location. The appeal board concluded the structure could be moved farther back on the property.
The building is a deck house of an old World War II ship, and is a grandfathered structure and does not conform to current ordinances because it existed at the site before zoning. The structure sits 44 feet from the shore. New buildings are to be set back 75 feet from the high-tide water mark, per existing ordinances.
On July 9, while the complaint was still active, the Johnsons received initial approval from the planning board in a separate application to renovate the structure.
Neighbors of the property said Aug. 13 they are frustrated the board has not seen the property as a group. New board member Ken Wexler said he would like to see the property, and suggested the board go to the site.
Gibbons, the Johnsons and board member Dale Martin said as the board has already voted to allow the renovation, the board cannot allow new evidence to be admitted. Leah Johnson said as she and her husband have been back and forth from Massachusetts for meetings and the permit has been in limbo for eight months, it is time to resolve the issue.
Code Enforcement Officer Scott Bickford said the board has the option to reconsider accepting the permit as it has not signed the application. The suggestion to review the property as a board was not accepted.
Resident and attorney for a neighbor of the property, David Jenny, said it was a joke to call the ship deck a structure.
"It is tethered to trees to hold it up," he said.
Neighbor Claire Perry agreed, and told the board the building is derelict, and added the community is appalled at what is happening.
Colin Clark, of the Shoreland Zoning Bureau of the Department of Environmental Protection said by phone Aug. 13 he has reviewed photographs of the property and the building, and in his opinion, more than 50 percent of the value of the structure has deteriorated, which would require the structure to go under a greatest practical extent review in order to determine how far back the building should be moved from the water's edge.
Clark said the structure should not be as close to the ocean as it presently sits in its condition.
He added the structure could be moved back to at least the 75-foot limit, and the wetland area could be built on with a Natural Resources Protection Act permit.
Clark said that from complaints he has received, and what he has seen through photographs, he is certain the ordinance is not being applied correctly. Clark sent an email to the town requesting documents from the application to be sent to him to review.
Gibbons said the case in court may be dropped if the new permit is issued and not contested to the zoning board of appeals.
The Johnsons, who bought the property in 2010 for $80,000, are now asking to leave the building at its current location and renovate it, without an addition. In that year, Johnson sent a letter to the tax assessor seeking a tax abatement for the property, and stated in that letter that the structure was falling down and would soon be removed.
Bickford said before the meeting that if the findings of fact and permit is given final approval the decision will likely be appealed again, and, in his opinion, the appeals board will again reject the decision.
"The purpose of shoreland zoning is to eliminate non-conformance," Bickford said. The state recognizes non-conforming properties have rights, to be painted, polished and expanded within certain limits. Personally, Bickford said, he does not believe this application for the Castlewood Lane property is within those limits.
He said the planning board has not heeded his recommendations, such as consulting with the Department of Environmental Protection about the lot.
In testimony given to the board in June and July, Peter Yates, the Johnson's carpenter, and engineer William Gartley told the board the construction is a renovation, and too much of the building will be be preserved to call the work a reconstruction or a rebuilding.
Yates said the second floor is stable, and said renovations will not be significant. Structurally, Gartley said, the renovation will not include rebuilding the structure. Much of the original building will remain, he said, according to June and July meetings that discussed findings of fact.
Jenny asserted in July the building would then need to be moved back 75 feet from the high tide mark, as it is being renovated. The board disagreed, and said that is only an issue when there is sudden damage, a structure loses 50 percent of its fair market value, and then the owner would need to acquire a permit within one year to rebuild.
The board said the damage to the structure is from lack of maintenance from a long period of time, not, for example, a hurricane, and so the owner would not necessarily know when to get the appropriate permit within a year's time.
Bickford said the Johnsons are planning to build a foundation under the building, and if so, it must be moved back 75 feet from tide mark. He said the language is very clear in the ordinance, and said the board is not reading it correctly in allowing the work, if including a foundation, to be completed where the structure stands now.
Gibbons said although his clients asked for a foundation in the permit application, they may not build one as the area is rocky.
In the first permit granted to the Johnsons in March,which is pending in court, they were given permission by the planning board to move the dilapidated structure back from the shore, when they then planned to add an addition.
The Johnsons contended 15 feet was the farthest the structure could be moved, so as not to impact a wetland zone behind where the building is. The planning board agreed and decided 15 feet was the greatest practical extent the structure could be moved without affecting either resource, the shoreland and the wetland. The Johnsons had requested approval to build a 945-square-foot addition once the structure was moved back.
The zoning board of appeals disagreed with the planning board, and said the board was not following the ordinance correctly and that the structure could be moved farther back from the shore as the DEP concluded the wetland area, was in fact, not a wetland.
The defendants in the complaint are listed as the town of Owls Head, Perry and Delaney.