Category: Citizen’s Initiatives

Town Targets Citizen Petitions

The Citizen Petitions you voted to adopt are under fire again by the Rockport Select Board in their October 11 meeting. After spending your tax dollars to fight applicability of the revised Land Use Ordinance the Select Board has chosen to simply remove the language you approved.

The Citizen Petitions you voted to include in the Land Use Ordinance are in the cross hairs of the Select Board again. Today’s PenBay Pilot reports that tonight’s Select Board meeting at 6PM in the Geoffrey C. Parker Meeting Room (basement of Opera House) will begin the process to remove the language you approved during the height of Covid-19. We encourage you to participate online through the town’s video feed or in person at the Opera House.

They give no reason for the proposal to eliminate a parking, traffic and safety study for proposed off-site or shared parking or waiver of parking requirements by the Planning Board or Planning Department. Remember, the Superior Court upheld these Citizen Petitions. Nor is any reason given for striking the language limiting the size of hotels in the harbor area. One might think that the Rockport Harbor Hotel has plans to regain their monopoly lost through the successful citizen petitions process. Whether that means reverting to their original plan at 20 Central Street, using the copious vacant space in the Shepherd Block or more construction at 14 and 16 Central Street remains to be seen.

It is absolutely worth the time to ask the Select Board why they are continuing to fight the will of the voters. After spending your tax dollars to fight against the Citizen Petitions in court, they now want you to again eliminate third party oversight of the planning process by eliminating the reasonable traffic, parking and safety study requirement. Speak up tonight.

Maine Superior Court ruling largely in favor of Friends of Rockport; Town schedules Planning Board hearing for January 27, 2022

Maine Superior Court applies citizen initiatives to hotel, remands on parking and architectural harmony shortfalls.

Maine Superior Court ruling in favor of Friends of Rockport on most substantive issues. The Honorable Bruce C. Mallonee on December 2, 2021, issued his ruling in the two concurrent cases relating to the construction at 20 Central Street in Rockport. The Justice remanded the site plan back to the Planning Board for more thoughtful consideration of the adequacy of parking in downtown Rockport as well as for compliance with standards for architectural harmony with neighboring properties. The Maine Superior Court further ruled on January 3, 2022, that the citizens’ petitions requiring no more than 20 rooms per hotel downtown and a parking study paid by the applicant prior to allowing any off-site parking apply to the project. As a result, Maine Superior Court reversed approval of the building permit and remanded the project to the Code Enforcement Office after further review by the Planning Board. Finally, the Court has scheduled post-judgment motions with submissions running through February 7, 2022.

One of those post-judgment motions was by the Plaintiffs, including the Friends, seeking reconsideration of the application of the Land Use Ordinance scenic view provisions. We continue to feel strongly about this matter, indeed, with the historical precedent jumping off the page in the configuration of the 18 Central lot. You will recall that the Planning Board allowed for annexation of some land from 18 Central to 20 Central as part of their site plan approval. That piece of vacant land had been vacant since at least 1875, prior to the construction of the Shepherd Block in 1892. Yet somehow, without saying so or reviewing any evidence, the Planning Board concluded that it was impossible to build a hotel on the 20 Central lot and preserve the view.

Now, the town has scheduled a Planning Board meeting to address the remanded matters on January 27, 2022, before the Justice can hear the pleadings on post-judgment motions from both parties which may influence the topics before the Planning Board and/or the Code Enforcement Office. While it may make no sense, we and you are mobilizing to put our best foot forward in this hearing. What can you do? Attend the meeting and speak your mind about the parking situation downtown (even without the hotel) and the architectural harmony of the hotel. The Justice, for instance, questioned whether the balconies on Central Street “relate harmoniously to the terrain and surrounding environment, including existing buildings in the vicinity that have a visual relationship with the proposal being entered.” So, you may consider whether 18 Central, 22 Central, or 24 Central have balconies on Central Street. For that matter, whether any commercial building on Central Street has a balcony facing the street – they don’t. Collect your thoughts on these important matters – parking impact and architectural harmony – and share them during the meeting through Livestream at 5:30PM on January 27, 2022.

Comprehensive Plan Input

The Comprehensive Plan is the foundation of Rockport town policy and ordinances. Now is your chance to participate in building that foundation. Seize the moment when the hotel mess is squarely upon us.

Now is your opportunity to influence the new Rockport Comprehensive Plan. It has been 17 years since the document was last refreshed, and the Comprehensive Plan Committee is seeking input from residents and property owners. This is the perfect opportunity to be heard, and we encourage you to engage in whatever way you feel most comfortable.

There is a public hearing on November 9 at 5:30PM in the Rockport Opera House. You can voice your opinion publicly. You can also participate in the online survey and “idea wall” at your convenience.

The Comprehensive Plan is how the Town of Rockport sets long term goals and the document is meant to influence both policy and ordinances. As we know well from the Rockport Harbor Hotel debacle, the best intentions are not always met. Despite architectural standards and scenic view provisions, for instance, the hotel still met with approval from the Planning Board and Code Enforcement Officer. Ideally, the ordinances will become more definitive and our enforcement processes tighter. Given the misses in this case, it seems likely that qualifications will become a key factor in filling these vital roles going forward.

Update on Appeal Status: We all drive by the ever larger 20 Central Street project often and wonder ‘what ever happened to the appeal?’ Since our last update Justice Mallonee has been hard at work reviewing the briefs from counsel and doing his own research on applicable law and precedent. In other words, we are still awaiting a ruling. We remain hopeful that the Justice will stand up for the Land Use Ordinance and the citizens’ petitions, and we will let you know as soon as we receive that ruling.

Desperate Times

Desperate times as developers rush construction and contradict themselves in Court papers to ensure they can capitalize on the legally protected scenic views of Rockport Harbor.

Desperate times call for desperate measures and 20 Central Street LLC has resorted to fantastical claims in their final filing to the Superior Court. It is easiest to simply list for you some of the whoppers embedded in their most recent filing.

  1. They start by trying to impugn the character of the Plaintiffs, as well as lying about what they themselves said on the record.  They have literally said “this statement is blatantly false” regarding the exterior lighting on the building being on at any time. Yet in the November 21, 2019 Planning Board meeting, Tyler Smith said “they would generally come on at dusk and go off at 11 O’clock. And that’s, we give the ability for customers to override that as well.” In other words, the lights can be on whenever a guest wants them to be on.  Mr. Smith, how is that statement “blatantly false”?  The only thing blatantly false is your attorney’s filing before the court.
  2. Ironically, their filing also states “the accent lights are low wattage and primarily for accents.” Yet during the November 21, 2019 Planning Board meeting Tyler Smith also said “The intent of most of the lighting is for navigation purposes…. The goal for the decks is really to allow for someone to go out there to sit and read a magazine, have enough illumination for that.” That’s not accent lighting.
  3. 20 Central appears to believe that if they say something, that makes it so.   During the Planning Board hearings, they showed a diagram of the proposed parking at 310 Commercial Street with lined spaces marked ‘existing parking lot.’ In their latest brief they use this to demonstrate the fact that it really is a parking lot. Saying “One of the exhibits to the lease is a plan depicting the parking space on the satellite lot, which also demonstrates the Hoboken’s lot’s existing use as a parking lot.” Well, we all know that simply drawing up a plan and labelling something (that does not currently exist) as a parking lot, or a hotel, or an ocean liner, does not make it so, whatever they may think.
  4. Similarly, during the December 19, 2019 Planning Board hearing Will Gartley, engineer for the project, said: “Table 803.1 of the Rockport Land Use Ordinance clearly allows for planning board discretion with regard to parking. A perfect example of this is the unanimous approval of the planning board to waive the parking regulations for the Union Hall project in August of 2012. I have those minutes if anybody would like to see them.” Just 10 minutes later he said “When the Union Hall project was approved the planning board unanimously waived any requirements for parking.” Then, in the latest filing they say “a review of the Rockport Planning Board Minutes from August 8, 2012 provides that the Planning Board did in fact grant a waiver of all parking requirements. A waiver of the parking space regulations for the project was passed by a 5-0 vote. Union Hall was approved with zero allocated parking spaces and parking regulations were waived.” Of course, you know from Rockport Parking: A Brief History – Friends of Rockport that this is demonstrably false. The developer at that time asked for a waiver from the 27-31 spaces needed by ordinance to the 25 spaces they were adding to the Sandy’s Way lot at the time. That is what the Planning Board approved. The Planning Board NEVER said that it was OK to provide NO parking for Union Hall, despite 20 Central’s repeated attempts to get us (and you) to believe that they did.  Apparently they believe that if you repeat a lie often enough, it becomes a fact.
  5. They also would have the Court overlook the fact that Will Gartley said in the December 19, 2019 Planning Board meeting “They plan to manage the parking in Rockport in a similar manner which includes the following: by continuing to employ the shared use of 49 existing parking spaces.” He later added “clearly there’s a lot of different uses going on, a lot of different timings, a lot of overlaps, and so that’s the way they plan to continue having that happen….”
  6. They would like the Court (and you) to believe that since the zoning allows for complete lot coverage in downtown Rockport, that supersedes the scenic view provision. Indeed, they have addressed this issue before. In the December 19, 2019 Planning Board meeting Will Gartley said “…by constructing a boutique hotel including a lounge and restaurant. This proposal will allow locals and visitors to enjoy the view of our beautiful harbor….”  Of course, Mr. Gartley glibly glossed over the fact that visitors and locals ALREADY enjoyed the view of the beautiful harbor.  The developers are not creating a view of the harbor for all to enjoy where none existed before.  Rather, they are seeking to monetize, for their private benefit, a public resource that was previously free to anyone walking on Central Street or sitting in Goodridge Park, a view which is protected by our Land Use Ordinance. Instead of stunning views of our Harbor, Rockport residents and visitors will now see a sea of brick, balconies and lights.     

Desperate times indeed to call for desperate measures, and now you can see the lengths to which the developer will go in their efforts to keep their construction on track. In fact, their recent mad rush to add brickwork and stone facades are another sign of this effect. Surely the Court would not dare order destruction of work already done? Of course, the Court was clear on this matter as you have already seen Court Ruling on Procedural Issues, Issues Stern Warning to Developer – Friends of Rockport. Still, despite numerous gaffes in the process, ordinance changes you approved, and conflicting statements the developer and their representatives made, they want their hotel the way they designed it.

Superior Court Update (August 12)

Superior Court Update after plaintiffs submit comprehensive brief covering all aspects of the various appeals in process. Read more here:

A Superior Court Update for the week of August 12, 2021, a follow-up to the recent Court ruling. As ordered by the Court, the plaintiffs in the various actions regarding approvals for construction of a hotel at 20 Central Street filed a new, comprehensive brief. On August 12 attorney for the plaintiffs, Kristin Collins, filed a brief outlining the key claims citing legal precedent, legislative records, State Attorney General opinions, and more.

The key elements of the case remain that the Planning Board erred in various ways in their role enforcing the Land Use Ordinance. Key among these are enforcement of the parking requirements, architectural standards, and preservation of scenic views. The brief also outlines the failure of the town to enforce the ordinance changes approved by the voters in August 2020 citing both a Constitutional argument and the fact that the building permit was not issued until six months after the changes. Finally, the brief addresses the Code Enforcement Officer’s error in application of various provisions of the Land Use Ordinance, many repeating Planning Board errors. These errors include architectural standards, consistency with plans approved by the Planning Board, and others.

Simply driving, walking or biking past the construction site on Central Street one can now clearly see the incongruity of the new building vis-a-vis the historic neighboring properties. The town and 20 Central Street LLC have until August 26 to submit their brief to the Court. We will continue to keep you apprised with a new Superior Court Update at that time.

Where Things Stand

It seems like a good time to share where things stand. Still plenty of balls in the air, and hopeful the court will issue an injunction. Learn more here:

You may be wondering where things stand. Particularly since this week, Tyler Smith’s “erector set” is going up in town. The appeals are slowly working through the courts. Plus we still await town action on several shortcomings members have identified for them.

Our focus remains on ensuring a compliant building. Thankfully, the courts, like the state, will look objectively at facts, which should work in our favor. Let’s recap what is still in play.

Superior Court Activity

Where things stand at the Superior Court. The Superior Court is currently reviewing two cases and two related requests for temporary injunctions. Our legal team submitted a brief on Tuesday summarizing another good reason why we are likely to prevail. This may be enough to secure a temporary injunction barring further work pending resolution of the underlying cases. One case is the appeal of the Planning Board site plan approval. At issue here are myriad misses in application of the Land Use Ordinance. The most notable miss is failure to consider alternative designs to comply with scenic view provisions. You can learn more here. The second case is seeking application of the 2020 citizens’ initiatives. The argument here is whether a state statute limiting retroactivity to 45 days should apply during a pandemic. The fact is the building permit was issued on March 10, 2021, long after your vote approving the ordinance changes. Since the building permit is the final approval, the 45 day limit is moot. You can learn more here.

Activity with Town of Rockport

Where things stand with the Town of Rockport. The Friends also have ongoing efforts at the town office around: the building permit issuance, parking implications of two missing site plan reviews, and the Planning Board’s misreading of the 2012 parking allocation for Union Hall. You can learn more about the permit appeal here and the unaddressed parking issues here. Regrettably, with respect to the parking issues, the town has been singularly non-responsive. In the absence of a town manager, for the moment, we suggest you send your thoughts on these matters directly to Debra Hall, Select Board Chair. It is unconscionable that the town, when presented evidence of process failures, should do nothing.

Progress in Superior Court

FOR made progress in Superior Court effort to stay construction, while litigation is heard. Meanwhile, developer redoubles efforts to thwart compromise.

Friends of Rockport make progress in Superior Court. Justice Mallonee’s second decision represents an impressive victory for the residents of Rockport! We won outright on three of the four criteria for getting the hotel construction enjoined for the second time. And while we have not yet won on the final point, Justice Mallonee has invited our attorneys to submit an additional brief on this issue.

Thanks for keeping the faith even as you witnessed the developer’s relentless and expedited construction, day after day, after the first injunction was lifted. We know it has been painful and maddening to watch as the developer blocks a century old view of the Harbor and defaces the historic Shepherd Block. While our repeated protestations to our Town officials have fallen on deaf ears, Justice Mallonee mercifully has heard us loud and clear. It truly is progress.

When Justice Mallonee enjoined construction the first time, he expressed the concern that “20 Central, by continuing its construction even as litigation was pending, was manufacturing reality that would change to its (unfair) advantage, any future calculation of remedies by any body charged with enforcing municipal building ordinances.” As the Justice considers our request for a second injunction, he noted, “That concern has been, if anything, amplified by 20 Central’s unhindered construction in the last two and a half months”.

Unlike our Town officials, Justice Mallonee also recognizes and respects our efforts to enforce our scenic view ordinance. “Plaintiffs have made a persuasive preliminary showing that construction of the hotel in accordance with 20 Central’s building permit will close off sight-lines for townspeople that have existed for decades. In a scenic harbor side village in which both civic enjoyment and commercial success are predicated on scenic values, this could constitute a substantial loss. The potential loss is amplified by potential congestion or other complications resulting from traffic and parking that exceeds municipal capacity.”

Justice Mallonee has also eloquently and strongly advocated for our petitions which our Town officials have not only refused to uphold, but have actually used our taxpayer dollars to try to defeat! “Further injury relates to the process of citizen petition and civic government. Plaintiffs did exactly what they were supposed to do when aggrieved; they employed a statutory process to secure the relief they sought. They did the hard work of gathering signatures, generating a vote, and persuading their neighbors to support their cause.”

“They ‘failed’ only because their efforts ran afoul of a disease that overwhelmed the entire country. For the statutory relief, Plaintiffs sought to be frustrated by a pandemic that ejected their neighbors from their jobs, schools, entertainment, churches and synagogues; the homes of their aged parents and infant grandchildren; and the hospital rooms of their dying loved ones, at a time when specific and substantial legal relief was otherwise offered by every body of State government, appears to contravene foundational ideas of participatory government. The court deems this to be irreparable harm of considerable magnitude.”

Although we are grateful for Justice Mallonee’s decision, we must correct his understandably mistaken belief that the developer’s second design “lower[ed] the building profile.” Although the developer reduced the number of rooms to 26 and eliminated one floor, this redesign did not reduce the height of the building nor its volume and footprint at all. Therefore, it is not a “substantial accommodation.” The design is substantially similar, retaining the offensive wall-to-wall approach and replacing a historic scenic view of the Harbor with a sea of brick. In fact, the developer has vowed that it will continue to block the scenic view if required to comply with the 20 room restriction in the ordinance. That redesign is hardly progress or sensitivity to the feedback of townspeople.

As to the Justice’s inquiry about the economic impact of “further trimming,” our choice of a 20 room limit in the ordinance was responsive to this concern. The developer is on record saying that a 20 room hotel is what he intended to build because it is a good size for weddings or business conferences.  (34:53 https://livestream.com/Rockportmaine/events/7198735/videos/154495579). Indeed, the developer’s 16 Bay View Hotel, on which the Rockport Harbor Hotel is based, has 21 rooms.

We have repeatedly sought and remain open to a reasonable compromise with the Town and the developer. Your steadfast support will enable us to continue to fight the good fight until we finally get one. If you have not yet made a financial contribution, please consider doing so to help cover our legal costs. Thank you for supporting our mission to promote the smart growth of Rockport, while preserving its iconic historical architecture, beautiful harbor, and scenic views. Strangely, progress comes with a price.

Radio Silence…Not Really

As the Superior Court considers a temporary injunction to stop construction, developer races to eliminate scenic views and fill the space to intimidate any future town review of the project.

Radio silence, no doubt it feels that way as you watch frantic construction on the disputed hotel site. The truth is entirely different. As you know the Friends of Rockport and its members have a number of initiatives relating to the hotel. You know our effort to have the town enforce the Land Use Ordinance changes approved in the last town meeting. Plus, the appeal of the planning board approval in Knox County Superior Court. We are only there because the zoning board of appeals ruled against us. These two initiatives include a request for a temporary injunction to halt construction pending a ruling on the each case. The radio silence stems from waiting on that temporary injunction. That is why the frantic construction work because they want to be ‘too far along’ to apply the LUO now.

The latest, effort to rein in the misapplication of the Land Use Ordinance is an appeal of the building permit. This appeal is predicated on the myriad changes from the approved site plan to the building permit application. This, too, will go first to the zoning board of appeals. This time, though, the rules are somewhat different, and they are not bound by the planning board record.

We will continue to keep you apprised of all these efforts, and thank you for your continued support of FOR. We expect a lot more action now, and promise no more radio silence!

Town Overrules Voters

The Town of Rockport has chosen to use your tax dollars to fight implementation of Article 3 and Article 4 from the 2020 Town Meeting. This overrules your votes to limit hotels to 20 rooms in the village and require the developer to provide a traffic, safety and parking study before approval.

The Town of Rockport overrules voters and their successful citizen initiatives by strictly applying the Maine statute limiting applicability of ordinance changes to 45 days. Despite voter intentions and a growing national wave of court rulings supporting voter rights in the unusual pandemic year, the Town decides to issue building permit to 20 Central Street LLC. You recall Article 3 (requiring developers to provide a parking/traffic/safety study before any new development). Article 4 limits each hotel property to 20 rooms to ensure the opportunity for competition and keep development appropriately scaled for the village.

What, you may ask, is at issue here and what overrules voters? The two voter initiatives apply retroactively under Maine 30-A M.R.S. §3007(6) allowing such provisions to look back 45 days. The Select Board chose to move the Town Meeting from June 9 to August 18. Thus allowing time to hold the vote safely in light of a global pandemic. The application before the planning board for 20 Central Street LLC was approved on May 21, 2020. This just days before the planned Town Meeting on June 9, 2020. The Town’s position is that pandemic, or not, they are applying the 45 day rule from August 18.

That decision overrules voters on these citizen initiatives and sets a dangerous precedent. Both the Maine Constitution and US Constitution guarantee voter’s rights to petition the government. A multitude of cases across the country have ruled that pandemic driven changes in dates cannot adversely impact voter rights. Yet, the Town of Rockport persists in their mission to move forward. Hypothetically, anytime the Select Board does not like your citizens’ initiative they can push the Town Meeting to avoid it.

The worst part is they are spending your tax dollars to fight this in court! So, you voted to implement changes in the Land Use Ordinance, and the town is spending your money to ensure they do not get applied as you intended. Does this bother you? Share your thoughts with Bill Post, Town Manager. He can push the Select Board to stop spending your money on this.

About those citizens’ initiatives

The citizens’ initiatives were passed in the 2020 town meeting, but the town will not comment on applying them to the hotel. Learn more here.

It appears that the Zoning Board of Appeals is now set to reject in all respects the appeal, sponsored by Friends of Rockport and some of our members, of the Planning Board approval for the 20 Central Street Hotel project.  We are deeply disappointed by the ZBA’s decision and believe that the ZBA erred in some of the same ways that the Planning Board did in its initial review.  We should say that we all very much appreciate the contributions of time and effort on the part of the ZBA members, who are lay members of the community and not real estate professionals.  We also understand that some members of the ZBA may have been reluctant to publicly state their disagreements with the findings of the Planning Board, irrespective of their private views on the merits of the Friends of Rockport’s appeal.

We have now turned our attention to the citizens’ initiatives which were certified by the Town Clerk and placed on the 2020 town meeting ballot as Article 3 and Article 4. As a reminder, these Articles limited any hotel in downtown Rockport to 20 rooms and required a traffic study before any approval could be given.  While you, the voters, voted to enact both of these Articles, the town has steadfastly refused to give any indication about whether it intends to enforce these ordinance changes in the case of the hotel project.  The town is not even willing to participate in a court action seeking clarification on whether these ordinances apply.  We can only speculate on why the town does not appear to want to have the applicability of these ordinances definitively determined by the court. 

In order to provide more clarity on this matter, which we believe would benefit everyone involved in this project, the Friends of Rockport has filed an action in Superior Court asking for adjudication of the matter as well as an injunction to block issuance of the building permit until the developer has complied with the petitioned amendments. At issue is the fact that despite everyone’s best efforts Covid-19 caused a delay in the town meeting from the scheduled June 9 date to August 18. The developer is arguing that since August 18 is more than 45 days from the Planning Board approval on June 16, state law precludes enforcement of the ordinance changes in their case. The Friends of Rockport contend that had the Town Meeting not been postponed due to Covid, the Articles would have been in force even before the Planning Board’s Notice of Decision, and that the Covid related delay should not enable the developer to avoid the will of the people.

As of this afternoon, the Knox County Superior Court has granted the temporary restraining order and directed the town not to issue a building permit and the developer to cease any activity at the site until a hearing can be held.  In the order, the Court noted that “the Plaintiffs [Friends of Rockport] have demonstrated a likelihood of success on the merits of the case”.  To be clear, the Friends are not seeking to derail the hotel project.  Most of us would welcome an attractive, appropriately sized hotel in our downtown.  We just want it to conform to the restrictions that were approved last year by a substantial majority of the voting residents of Rockport – which it currently does not.   It appears that the Court is likely to agree with this view.