An attorney for a neighbor of a Castlewood Lane structure, whose owners received initial approval for a renovation permit by the town's planning board, is asking the board to reconsider its July decision, citing the application does not abide by the town ordinance.

In a letter to the board, Attorney David Jenny objects to the proposed findings of fact of the property, and asks the board reconsider their decision to grant Osprey Realty Trust a permit to renovate a structure at its current location. Jenny is also a neighbor of the property.

The board is set to review the findings of fact for the property Wednesday, Sept. 10.

In August, the board was set to review the findings, but did have a quorum to vote as the chairman, Robert Pratt, recused himself after the public suggested he not vote as he had taken the applicants out sailing the day before. Pratt is a commercial boat captain.

The applicants, Doug and Leah Johnson, acting as Osprey Realty Trust, bought the property in 2010 for $80,000. They are asking to renovate the structure at its current location.

The lot contains the deckhouse 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. Jenny contends the structure is so dilapidated that it cannot be renovated, but rather, the application is seeking the deckhouse to be rebuilt. In that case, the structure would have to be moved back from the shoreline.

Jenny also requests new planning board member, Ken Wexler, be allowed to participate in the consideration of the request, and further matters concerning the lot if he reviews the minutes of previous meetings. Wexler asked to see the property in August, but the  Johnsons said they did not want him voting on the project as he missed months of meetings.

Jenny's reasoning for the reconsideration includes the board never made an official site visit to the property, which Jenny said is necessary to clarify the condition of the structure, and further contends the approval violates the town's Shoreland Zoning Ordinance because the structure is so dilapidated.

At the Aug. 13 planning board meeting, property owners said they feel as though the application process has been rushed.

Jenny said at the meeting it was a joke to call the ship deck a structure. The structure was recently deemed a risk due to its disrepair, and is currently the subject of complaint filed in court.

"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.

In 2010, Johnson sent a letter to the tax assessor seeking an abatement for the property, and stated in the letter that the structure was falling down and would soon be removed.

Code Enforcement Officer Scott Bickford, and The Department of Environmental Protection also have questions as to whether the initial approval for the property is legal in reference to the Shoreland Zone Ordinance.

Bickford said the planning board has not heeded his recommendations, such as consulting with the Department of Environmental Protection about the lot.

Colin Clark, of the Shoreland Zoning Bureau of the Department of Environmental Protection, said 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, the Johnsons and board member Dale Martin said in August 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.

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.

Court complaint

The owners of the 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 appeals board concluded the structure could be moved farther back on the property.

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.

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.

Gibbons said the complaint could be dropped if the new permit is approved.

The defendants in the complaint are listed as the town of Owls Head, Claire Perry and Jill Delaney.

Courier Publications' reporter Juliette Laaka can be reached at 594-4401 ext. 118 or via email at jlaaka@villagesoup.com.