The Newcastle Board of Appeals met Dec. 22 to hear an appeal by Stetson House, LLC of the Newcastle Planning Board decision to grant conditional approval to the Newcastle Harbor House project.
Damariscotta attorney David Levesque, representing Stetson House, and Bob Martin, Chief Operating Officer (COO) of Mattson Development, the company behind the Harbor House project, began the meeting with 10-minute presentations.
Levesque, in his presentation, rehashed his three-page, Nov. 22 letter to the Board of Appeals that cites nine reasons for the appeal. (See “Appeal of Harbor House permit cites nine grievances,” in the Dec. 23 edition of The Lincoln County News).
According to Levesque, the project includes a “proposed building… of unknown size, use and design” at the south end of the Harbor House site at 75 Main Street.
“The Planning Board did not request any information about that building,” Levesque said. “[The applicant] didn’t disclose any dimensions as required by the code.”
“Were you aware that the ‘unknown structure’ is actually a prior permitted use?” said Newcastle town attorney Peter Drum.
According to town officials, the proposed structure is a small boathouse or shack previously approved as part of a plan for the nearby marina.
Levesque said Mattson Development did not present a deed or a legal opinion to prove ownership of the site.
“That’s not in the ordinance,” Drum said. “There’s no requirement.”
Levesque said a Newcastle ordinance requires “approximately 43 spaces” for parking at the Harbor House site.
Drum, however, said the ordinance in question “references special exception standards” and does not impact restaurants.
Levesque argued that Newcastle did not afford due process to abutters of the site, including Stetson House. “They need to know if their rights are going to be affected by the planning board,” he said.
“I determined all the abutters within 500 feet,” Newcastle Town Administrator Ron Grenier replied. “They all got certified letters.”
Drum held up a receipt of a certified letter sent to Stetson House and the members of the Board of Appeals passed it around despite Levesque’s objections.
According to Drum, Ralph Doering, the owner of Stetson House, attended multiple meetings of the Newcastle Planning Board during the application process.
Levesque, in turn, said Doering was not his client. “My client is an entity,” he said, referring to Stetson House. “I don’t know who owns my client.”
Martin followed Levesque with a presentation on behalf of Mattson Development.
“[The Newcastle] Planning Board did an extraordinary job of making sure there was more than adequate opportunity for public comment,” Martin said. “It did an extraordinary job in fulfilling its responsibilities.”
“The Stetson House has engaged in litigation against this project” since July 15, 2004 – a period of more than six years, Martin said. At one point during the process, “The proceedings of the Newcastle Planning Board were upheld… in [the] Maine Supreme Court,” he said.
Martin proceeded to address the Stetson House appeal, point by point.
According to Levesque, Stetson House owns the driveway Mattson Development proposes to use for the Harbor House.
The applicant already uses the driveway in question to access the marina, Martin said, calling into question Stetson House’s sole ownership of the driveway.
According to Levesque, the height of the proposed, three-story Harbor House, at 52 feet, exceeds the maximum height allowable under the Newcastle Land Use Ordinance.
Mattson Development previously began construction of a residential building at the site. Although the project stalled, a foundation and concrete elevator shaft remain at the site. “We have vested rights to complete that, so the issue of height is not germane at this time,” Martin said.
“The Maine Supreme Court said the Planning Board had the ability to allow a building of that height,” Drum said.
The “unknown structure” Levesque objected to was approved at the time the marina was approved, Martin said. “The door for that objection was closed long ago.”
According to Levesque, “The Planning Board erred in finding that the proposed use will not impose undue burdens on the capacity of the sewers.”
Martin, referring to a letter from the Great Salt Bay Sanitary District (GSBSD), scoffed at Levesque’s argument regarding sewer impacts. “If anyone in town is an expert on the demands of the water and sewer systems, I would suspect it is Great Salt Bay [Sanitary District],” he said. “To allege that there is an increased demand on the water and sewer systems in the town is inaccurate.”
According to a July 28, 2010 letter from LeeAnna Hutchings, Wastewater Division Manager for GSBSD, the applicant must pay an impact fee of $2467. Hutchings did not, however, indicate that the project would impose “undue burdens” on the system.
Martin responded to Levesque’s questioning of Mattson Development’s financial ability to complete the project.
According to Levesque, “The Planning Board inappropriately granted [Code Enforcement Officer Stanley Waltz] the discretion to assess Applicant’s financial capacity… the Town is aware that Applicant has failed to pay its real estate taxes for the last two years and that the Town has a tax lien on the property.”
“It was very clear what the Code Enforcement Officer was supposed to do,” Martin said.
To meet one of the conditions of approval, Mattson Development must provide an irrevocable letter of credit that will allow the town to complete the project or demolish any incomplete structure if the developer fails to finish the project within a time frame agreed on by both parties.
Representatives of Newcastle, Mattson Development and The First, a local bank, have been negotiating the terms of the letter of credit.
“The taxes have, in fact, been paid on the property,” Martin said.
Grenier has confirmed that Mattson Development paid their 2009 tax bill of “approximately $13,000,” lifting the lien on the property.
“The ordinance does not require that the taxes be paid,” Martin said. “Interestingly enough, [Levesque] argues that we don’t have title and that we didn’t pay taxes on property we don’t own,” Martin said.
Martin, echoing Drum, said Doering “was present at [Planning Board] hearings along with his wife.” Martin said Mattson Development, with phone calls to Doering, reinforced the town’s efforts to provide adequate notification. Martin said he discussed the project with Doering multiple times in front of Doering’s property, which abuts the Harbor House site.
Martin said he met with Doering in Levesque’s office and Doering offered to drop the appeal for a payment of $200,000. “We have a name for that where I come from,” Martin said.
Mattson Development has yet to provide a letter from the Dept. of Transportation (DOT) approving the placement of two handicapped spaces on Main Street in front of the Harbor House site. The DOT letter is, along with the letter of credit, a condition of Planning Board approval.
Levesque said a 1946 parking ordinance, discovered during the application process, bars parking along Main Street.
“Our parking is inside the property line,” Martin said. “It is in full compliance.”
“It doesn’t matter if it’s on their property or in a public way,” Levesque said.
“We believe this appeal is insubstantial,” Martin said.
Levesque, in a brief rebuttal, called “any type of settlement discussion” and any prior permits – referring to permits for the marina and the “unknown structure” – irrelevant.
Drum, however, said “the property file,” which contains information about existing permits, is “part of the record” and therefore relevant to the consideration of the appeal.
During an informal poll of the Board by Chair Louis Rector, three members said they were not ready to vote and another was undecided.
The Newcastle Board of Appeals, a five-member volunteer panel, consists of Rector, Kensell Krah, Glenn Paye, Richard Simon and Stephanie Stephenson. They will meet again on Wednesday, Jan. 19 at 6 p.m.
“The burden in an appeal like this is on the appellant,” Drum said. “There’s a lot to review.”
