Tag: 20 Central Appeal

Developers’ Surrogates Make it Personal

When the Superior Court agreed with concerns about the town processes, the developer made it personal. We will stick to the facts.

The developers and the developers’ surrogates went on a public relations campaign in advance of the Planning Board hearing on January 27, 2022, and much of it smeared Friends of Rockport and individual plaintiffs. This Planning Board hearing was necessitated by the fact that we prevailed in most of our concerns over the approval process for the proposed hotel – no malice toward the Smiths, the Town, nor any town volunteers, simply concern for upholding our ordinances and the integrity of the town processes. Indeed, Justice Mallonee ruled in our favor on almost every claim: parking shortfalls, architectural harmony, and application of the two ordinance changes residents approved requiring a parking study for off-site parking and no more than 20 rooms per downtown hotel. In response to Justice Mallonee’s well considered and objective rulings, “Stu/Marianne/Tyler&Kristen” chose to attack us in writing on January 18, 2022 “…all this legal action against the town has been very expensive for the town taxpayers and is the direct result of negative and misleading efforts….”

The developers’ surrogates thought it prudent to suggest that we created the ‘much-vilified Smith family,’ when we focus our communications on the process, not people, and don’t name names aside from direct quotations. Of course, it is nothing new for the developer and their surrogates to impugn the integrity of the Friends and residents. Back in September 2021 in court filings they asserted “this statement is blatantly false” regarding exterior lighting claims which remain demonstrably true. The surrogates in a January 18 letter published as an advertisement in the local paper say that we “…formed with the avowed sole cause of fighting the hotel.” Sorry, in fact we’re not even fighting the hotel, rather, our clear and stated mission is “promoting smart growth of Rockport while preserving its iconic historical architecture, beautiful quiet Harbor and Scenic Views.” It just happens the process broke down in the case of the hotel, but it need not have. The surrogates end with an assertion that we “…will never countenance this hotel…” Not only has that never been said, or thought, we have indicated a desire to settle this matter directly with the developers throughout, including overtures in advance of the latest Planning Board meeting – to save the town money. As far back as April 25, 2021, in our post we said, “We have repeatedly sought and remain open to a reasonable compromise with the Town and the developer.” So, don’t believe the developers and their surrogates when they say we have “obsession with blocking this new business.” It is simply not true.

All this before the Justice hears post-judgment motions, one of which was by the Plaintiffs, including 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.

Still, the town went ahead with a Planning Board meeting to address the remanded matters on January 27, 2022, before the Justice could hear the pleadings on post-judgment motions from all parties which may influence the topics before the Planning Board and/or the Code Enforcement Office. Not only that, but the Planning Board reviewed parking without the benefit of the independent parking study now required by town ordinance. Keep in mind the Justice’s language in his ruling: the Planning Board has “…to consider all the overlapping burdens on the limited parking downtown. It could not simply and out of context attribute a minimum number of spaces to the project.”

With so many open items remaining, including adequacy of parking, preservation of scenic views, architectural harmony, the parking study, and reduction of rooms, the Friends remain open to resolution, but without the other parties, this could continue for some time. We just hope the town has sense enough to stop spending our taxpayer dollars and let the developers make their own case.

Planning Board Tentatively Rules as Expected

Planning Board moves swiftly to confirm all their original errors in the face of clear guidance from Superior Court.

The Court’s rulings were clear. With respect to parking, “in this court’s view, for the Planning Board to make a factual decision on 20 Central’s application, it had to consider all the overlapping burdens on the limited parking downtown. It could not simply and out of context attribute a minimum number of spaces to the project.” Further stating “specifically, with respect to off-site parking, remand is necessary for the Board to consider and enter findings of fact regarding the parking requirements that were actually waived for Union Hall and the extent to which the Sandy’s Way lot is shared with other establishments and with the general public.” As for architectural harmony the Court erroneously concluded, “Plaintiffs now confine their challenge to the balconies that extend from every guest room on the front facade of the hotel.” Yes, the balconies are among the most obvious variations from the neighboring historic properties, but the sea of glass on the rear façade is equally glaring and many other aspects of the design, including the elimination of the scenic view (not only on the 20 Central lot, but also a portion of the 18 Central lot), diverge from section 1003. We have not ever limited the scope of our complaint. The Court further ruled on January 2, 2022, “The court declares as a matter of law that amendments to the Town Charter designated as Petition A and Petition B apply to 20 Central’s hotel project.” This means that the hotel may have no more than 20 rooms and a parking study paid by the applicant must be reviewed prior to approval of any off-site parking. As a result, the 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.

With that backdrop, the Rockport Planning Board met on January 27, 2022, to take up the remand ordered by Honorable Bruce C. Mallonee on December 1, 2021, with further refinement on January 2, 2022. “The matter shall be remanded to the Planning Board for reconsideration of 20 Central’s site plan application with respect to adequacy of parking and compliance with standards for architectural harmony.” Of course, the Planning Board upheld all their prior rulings during the meeting, without having received the required parking study or even referencing the independent parking study provided by Friends of Rockport. For instance, the Planning Board ruled that the parking behind the Central Street buildings known as Sandy’s Way is not “shared parking.” In so doing, they ignored all prior Planning Board allocations of parking in the lot, including parking for 18 Central Street (Shepherd Block) and 22 Central Street (Martin Block). Mind you, Will Gartley (spokesman for the developer) said in the December 19, 2019, Planning Board meeting “They (the developers) 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….” Yes, they ignored that, testimony on behalf of the developers, too.

The Planning Board also concluded that parking requirements were totally waived for 24 Central Street (Union Hall). This disregards the developer’s intentions with respect to the available off-street parking (what is now Sandy’s Way). The developer’s submission speaks to the parking requirements in these words “additional parking for Union Hall and the applicant’s other properties along Central Street has been provided in a previously approved Site Plan Amendment for the Shepherd Block.” They outline the requirements of 27-31 spaces and go on to say, “These parking needs will almost entirely be satisfied within the parking lot expansion mentioned above, which will provide an additional 25 spaces.” Their application goes on to say, “The second-floor space, “Union Hall” is a grandfathered use and parking will be taken care of on a “per event” basis, similar to the Opera House. Based on above and especially due to the creation of badly needed pedestrian-friendly access to the building, we believe this standard is easily met or exceeded by the plan.” Not surprisingly, representatives for Leucadia when proposing the 2012 renovations to Union Hall also stated, “This restaurant (now Nina June) will have shared access to the rear parking lot which is planned for expansion.” In that August 8, 2012 meeting, Planning Board chair Kerry Leichtman wrapped up the parking discussion saying, “He did not feel grand-fathering would be applicable, due to the change of use, and suggested that waiving the parking regulations would be the smartest thing to do. He said the developers would have to work on the fact that there was parking, but not parking awareness.” The board then voted “to waive the parking space regulations for this project.” That sentence and none of the context is what the current Planning Board chose to read and adopt as the agreement from 2012.

2012 Union Hall PB submission
2012 Union Hall Planning Board submission clearly shows intent to use expansion to support Union Hall

We are left to determine how the town intends to handle the application of the two ordinance revisions now applicable to the project. Nor do we know yet the outcome of the post-judgment motions to be heard sometime after February 7, 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.

Appeal before Zoning Board of Appeals I

The appeal process is underway with a 4.5 hour meeting of the Zoning Board of Appeals behind us, we share some highlights here.

Tuesday evening, November 17, 2020 was the beginning of the appeal process for the Planning Board approval of a site plan for 20 Central LLC. Four plus hours later we await the next session which will pick up with ZBA board members asking questions of the many attorneys on the screen. Each side did present their basic case, though, and that gives us some things to share with you.

Hits

Kristin Collins, attorney for the appellants, documented a process which was orchestrated for approval from the start, with much evidence of lax treatment of the developer, their not being held to the LUO standards, and instances where they were given a pass where others may have endured greater scrutiny. She outlined how the Planning Board must inquire as to whether the loss of the scenic view is the only “reasonably practical” option for the desired purpose under LUO section 1003 point 1 “structures shall impede as little as reasonably practical, scenic views from the main road or from existing structures and nearby undeveloped areas.” She noted that they did not, nor did they ask for alternative designs that did honor the provisions of the LUO and Comprehensive Plan. She presented a site plan prepared for 20 Central under prior ownership. Ms. Collins suggested that the Planning Board could easily have used this reference point for comparison with the current site plan and evaluation of alternative, compliant designs. Does that not seem like a reasonable way to get 20 hotel rooms, or 26 for that matter, onto the lot?

Ms. Collins made the point during her presentation that the applicant failed to provide the necessary lease agreement, nor have approval for off-site parking for the 21 spaces in the lot belonging to the Shepherd Block. She subsequently asked Mr. Tyler Smith directly if 20 Central Street LLC owns the Sandy’s Way lot. Mr. Smith responded “20 Central Street LLC does not own the Sandy’s Way lot, but 20 Central Street LLC is building a building that is spanning both the 20, the lot owned by 20 Central Street LLC and the lot owned by the Sandy’s Way lot.” The fact that the lot is under different ownership means that the arrangement requires both a lease agreement and ZBA approval, neither of which occurred prior to the Planning Board’s site plan approval. Plus, a good portion of the building they propose is being built on neighboring property. Try that with your neighbor! The Planning Board likely did not ask these questions because the applicant shared a document which incorrectly showed the land and the parking as part of the 20 Central Street LLC property.

Misses

The appeal itself utilized the term “rooftop bar” consistent with the usage throughout the approval process by the applicant of the term. Counsel for the applicant, Sarah Gilbert, was quick to point out “…there’s no rooftop bar….” That is true, as we have said here before, but there is a bar/lounge which consumes at least two-thirds of the top floor, opening to a deck the full width. That is likely worse than a “rooftop bar” because the sound can only go one way, out onto the harbor! So, thank you, Ms. Gilbert for highlighting that.

Perhaps five of 15 citations regarding LUO Section 1003 General (2) “the architectural design of structures … shall be visually harmonious with the overall appearance of neighboring structures” referred to the initial applicant submission. Leaving those outdated references was an oversight, but in no way denigrates the integrity of the other ten issues.

Other Highlights

Mr. Smith, presenting for 20 Central LLC made the false equivalence of decks on several nearby private residences to the 30 balconies on the proposed hotel. He also cited the decks on 18, 22, and 24 Central Street as a way of insinuating that decks and balconies are everywhere in the downtown. As you know from our piece on the Shepherd Block deck, this was added since the site plan approval, and without site plan approval of its own. There are two decks on 22 Central, one of which is also residential. The deck on 24 Central was added during the renovation of Union Hall in 2012.

Smith Family PR Campaign Continues

Penobscot Bay Pilot article provides platform for Mark Coursey, attorney for 20 Central LLC, to share strategy for coming appeal.

A new article has appeared, this time in the Penobscot Bay Pilot. Far from the tone of the Village Soup article explaining both sides of the appeal, this one attacks the appellants as individuals and their rights to appeal the approval. Perhaps we can debunk this article point-by-point.

Quoting attorney for 20 Central LLC, Mark Coursey, “The Appellants main claim to having the standing necessary to make this appeal is not that their property will be directly affected by this project, but rather that there is the potential that they will be bothered personally when they visit downtown by increased traffic, less parking and impaired scenic views.” No, Mr. Coursey, the appellants all live within walking distance of the proposed hotel, and will be directly impacted by the parking, traffic, noise, lights and loss of scenic view. Perhaps more importantly, though, the arguments for the appeal are based upon failure to follow the Land Use Ordinance. So while the appellants all do have standing, they are not arguing for themselves, but rather the sanctity of the town’s Land Use Ordinance and the processes meant to enforce it.

The article goes on to say that Coursey states that “… (the basis for the appeal) should be whether the planning board’s decision was made within the board’s scope of authority, not whether the board made errors of law, abused its discretion and made findings not supported by substantial evident in the record.” I am no lawyer, but it seems to me that the “scope of authority” of the planning board should not include making errors of law or abusing its discretion or making findings not supported by substantial evidence in the record. So, they each seem like a reasonable basis for an appeal. Right? Do they really have the ‘right’ to do those things?

He also comments on the scenic view provisions of the ordinance. The article says Coursey comments “…the scenic view dispute is not “of the type” that needs addressing, given that the space, “has been of changing character throughout Rockport’s existence.” Let’s start with the ordinance itself this time. Section 1003 states “structures shall impede as little as reasonably practical, scenic views from the main road or from existing structures and nearby undeveloped areas.” It says shall, not may, and does not say ‘things change’ is a way around the code. Oh, and if things change so often, how is it that since at least 1875 when this map was drawn there has been open space there?

Rockport Hotel in the News

The Smith family kicked off their PR campaign ahead of the scheduled appeal of the Planning Board approval for their Rockport hotel project on Central Street. This article in the online edition of the Village Soup provides some fresh insight into the thinking of the Smiths.

Their take on the Rockport hotel elimination of the view from Central Street, Goodridge Park and most of the West wall in the Shepherd Block is most telling. “We’re not building it here because we need to make any more money,” Stuart said. “They have two points to make in response. One is that people will still be able to enjoy the view. They can come to the hotel to see it. The public will have some access to the top floor lounge area, they said.” Plus, “They have also constructed a patio on the back of 18 Central to allow customers to enjoy the harbor from there.”

You know the deck they are talking about, this one that was built without proper review by the Planning Board.

As for the Rockport hotel itself, the one that disregards multiple provisions of the Town of Rockport Land Use Ordinance, “the vast number of people in Rockport are very much in favor of it,” Stuart said. He went on to say “They can enjoy the harbor. Great views, great parks. This is an ideal place to be.” As you now know, you need only patronize their buildings to enjoy the view, and Goodridge Park will be a whole lot less great when the view is gone.

A couple of other things you should look for in the article:

“Stuart said this was the location of the Rockport Ice Company building until about the 1970s.” The thing is we all know the Rockport Ice Company building did not adjoin the Shepherd Block. Funny, though, how they provided a photo which might make you think it did because it was taken up the hill. The photo provided by Clare Tully, on the other hand, clearly shows the large view window that was there since the Shepherd Block was built.

With respect to the Land Use Ordinance requirement that the project must be “visually harmonious with the overall appearance of neighboring structures” Tyler Smith said “Traditionally in architecture, if you’re building a new building out of brick, you try and source your brick and your clay (which the brick is made from) as close as you can. This helps it match.” So, having bricks that are pretty similar satisfies the Ordinance requirement? Never mind all those lights and balconies and wrought iron railings … just look at the bricks.

What about the windows?

Some wonder why 18 Central has so many windows on the West wall. It’s quite simple, there has never been an adjoining property. This explains the history.

Have you ever wondered why there are 19 windows and two doors on the West wall of the Shepherd Block?


It’s because there has never been a property directly against that wall. Tenants have always enjoyed harbor views from those windows.
At first there was a street running down alongside the building to the harbor.


Since then the always unoccupied space has been part of the 18 Central lot.

So why would the Planning Board and developer have you believe it is fine to block the view now? Especially in light of the Land Use Ordinance saying “…Structures shall impede as little as reasonably practical, scenic views from the main road or from existing structures or nearby undeveloped areas.”