Category: Zoning Board of Appeals

Court Ruling on Procedural Issues, Issues Stern Warning to Developer

The stage is set for a fall ruling on multiple aspects of the 20 Central St. hotel development. Developer rolls the dice with construction.

A court ruling on procedural issues and scheduling was released on Wednesday, July 14. Justice Mallonee enumerated the following points in the court ruling:

  • Granted the plaintiff’s motion to amend the complaint, including appeal of the recent Zoning Board of Appeals decision on the building permit issuance.
  • Denied the Town of Rockport’s motion to dismiss the case(s)
  • Outlined a schedule of briefings leading up to final submissions on September 7. Oral arguments are to be scheduled “as soon as possible after completion of briefing.”
  • Declined to issue either a preliminary injunction or stay.

The Court went on to say “Although the court has declined to enter either a preliminary injunction or stay, and declines to do so today, it has signaled to 20 Central with what it hopes is unmistakable clarity that in the event either set of plaintiffs prevails, and the court is required to assess remedies, it will not be constrained by the risk 20 Central assumed by continuing construction as these cases were pending.”

Penobscot Bay Pilot addressed the Court’s order on Friday, though misinterpreting the decision on inclusion of appeal to the Court of the most recent ZBA action on the building permit.

Integrity of the Process

The integrity of the process is what concerns us the most. Are the town processes working correctly? You decide.

Integrity of the process is what is truly under scrutiny in the June 30 Zoning Board of Appeals (ZBA) hearing on the building permit issuance for 20 Central Street LLC. While the hotel is the current example, the larger concern is about the integrity of the approval process. In fact, that has been true throughout the Planning Board hearings, appeal to the ZBA of the site plan approval, and the appeal to Superior Court of the ZBA ruling. This is your opportunity to make a difference and be heard. Send an email to Kerry Leichtman, acting town manager, for inclusion in the ZBA materials. Tell them you care about the integrity of the process and will not stand for the disconnect between the site plan approved by the Planning Board and the building permit plans subsequently approved by the Code Enforcement Officer (CEO). You can learn more particulars in these earlier posts: ZBA summary, changes in use and changes in design.

Rockport, like any small town, relies heavily on citizen volunteers to run much of the machinery of the town’s business. Fifteen committees, from the budget committee to the recreation committee, are listed on the town website. The Select Board, too, is comprised of volunteer citizens. By their very nature, these arms of government have fluid staffing and are heavily reliant upon clear processes to deliver you reliable outcomes consistent with town ordinances and policies. The ZBA hearing on June 30 reaches into another process area: the application of town ordinances by municipal employees. This adds another layer of complexity because this work is done without public hearings or real-time oversight. Consequently, the integrity of the process is paramount when a municipal employee is charged with, in this case, ensuring compliance with both town ordinances and the prior approval from the Planning Board. Once that building permit is issued, the only public recourse is to appeal.

As outlined already, the process broke down this time because the structure covered by the building permit differs in very significant ways from that approved by the Planning Board. Now we test the integrity of the next process step, the ZBA appeal process. Regardless of your feelings about the hotel, you most certainly want the town’s processes to be clear, compliant, and repeatable. That should be your message to the ZBA in advance of this hearing. The Code Enforcement Officer must both ensure compliance with the town’s ordinances and with the Planning Board-approved site plan. It simply did not happen this time. Let your voice be heard as one for clear, consistent, compliant processes. Send that email to Kerry Leichtman and attend the meeting on Wednesday at 5:30PM in the Opera House basement meeting room. We’ll see you there!

Zoning Board of Appeals review of building permit

The Zoning Board of Appeals must answer a simple question: Is the building under construction the same as what the Planning Board approved?

The Zoning Board of Appeals review of the building permit appeal is June 30 at 5:30PM in the Rockport Opera House and via livestream. This review is all about the difference between what the Planning Board approved and what the town Code Enforcement Officer (CEO) approved by issuing a building permit. You have seen many of the elements in the appeal relating to changes in use and changes in design. It is important to recap the biggest ones ahead of the hearing to seek your involvement in the process.

Changes in Use – The most troublesome change from the planning board’s site plan approval to the CEO’s approved building permit relates to the use changes in the public spaces. During the Planning Board hearings, the top floor public space was characterized as a “top level restaurant (+/- 60 seats) [which] will be busiest in the afternoon and evening.” Yet, the plan submitted to the CEO is a 132-seat event space. Similarly, during the hearings the developer said of the street level space “the main function of the lower level restaurant (+/- 24 seats) will be breakfast for the guests.” This space was submitted as 34 seats with a bar (no seating shown there) and piano. Taken together, this is a 98% increase in seating – 84 to 166. Most telling is what the developer said to The Camden Herald on November 13, 2020. The article said “In the summer of 2022 or 2023, a wedding reception may be held on the top floor of a new hotel in downtown Rockport, giving the revelers an unparalleled view of the scenic harbor. Downstairs in the bar and lounge area, a visiting musician may take a turn at the baby grand piano, entertaining other guests.” How does the town CEO unilaterally allow for such a significant change in use from the Planning Board approved site plan? What is the point of the site plan review process if agreed upon parameters are not honored by the town?

Changes in Design – Aside from the uses and related parking requirements, the site plan review looks primarily at the exterior of the proposed building. As you can see here, there were myriad design changes from the planning board approval. The developer will likely argue these are immaterial. The sheer number of changes, though, runs roughshod over already debatable Land Use Ordinance (LUO) compliance. Recall that section 1003.2 of the LUO requires “The architectural design of structures and their materials and colors shall be visually harmonious with the overall appearance of neighboring structures.” The most egregious change is the appearance of a retractable roof over the top floor public space. Despite all the talk about light and noise concerns from the property, the developer decided to dramatically worsen both … so far getting away with it. Here, again, the CEO has unilaterally approved something wildly different from the Planning Board approved site plan. How is that possible? Particularly galling is the fact that unlike the site plan approval process, the building permit review is done without public oversight. All we can do is appeal to our fellow citizens on the ZBA to rein in the CEO.

These big issues demand the ZBA invalidate the building permit and remand the new design to the Planning Board for review. With the hearing coming on June 30, now is your time to be heard on this matter. Please send your thoughts by email to Town Planner Orion Thomas, and request that he pass along to the ZBA for consideration.