Tag: Town of Rockport Land Use Ordinance

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.

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.

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.

Rockport Parking: A Brief History

A series of miscues leaves Rockport parking a shambles…before adding the hotel. Will the town move to correct the record?

Rockport parking is at the heart of the hotel controversy. Parking shortfalls are an everyday occurrence in the summer. It happens more frequently in the quiet times, too. The Land Use Ordinance requires developers to provide off-street parking. The developer is trying to claim that 21 parking spaces are available behind the Central Street buildings – but these spaces have already been allocated.  The developer claims that the Town previously decided that Union Hall did not require any parking spaces, but this clearly self-serving interpretation is inconsistent with the actual record. So, how does this happen?

It is quite easy to explain. Rockport’s Code Enforcement Officer is responsible for just what the title implies. Developers are also responsible for compliance with applicable ordinances. So, what went wrong? Three, readily identifiable issues have happened.

First, in 2017 the developer applied to convert the gallery at 22 Central into a coffee shop. This change of use and change of intensity of use triggers a site plan review under LUO section 1300. The Planning Board would have found section 803 required allocating 11 additional off-street parking spaces. No site plan review occured.

Then, the Planning Board misread the minutes from 2012 review of the Union Hall renovation (ZBA June 19, 2012, and PB June 20, 2012, July 11, 2012, August 8, 2012) . That developer outlined the required parking for the project, “27-31 spaces,” in their application page 5. There is clearly no intention nor request to receive a parking waiver for the project. One of many citations during the hearings is the bottom paragraph of page 1 on August 8. Here, as in the application, the developer stated “these parking needs will be almost entirely satisfied within the parking lot expansion noted above, which will provide an additional 25 spaces.” Similarly, on page 12 of the ZBA minutes, the developer stated “just think if there was some separate owner that didn’t have the opportunity for parking.” Acknowledging, yet again, the shared parking nature of the Sandy’s Way lot and the 25 new spaces for Union Hall use. Yet during the site plan review of the hotel, the current Planning Board erroneously reallocated 21 of these spaces to the hotel by calling them available!

Finally, in the late fall of 2020 the developer applied to add a deck to the Shepherd Block. This change of a previously approved site plan and change in intensity of use also triggers LUO section 1300. Here the Planning Board would have found section 803 required allocating at least 30 additional off-street parking spaces. No site plan review occurred.

So, what happened to Rockport parking? Twice the Code Enforcement Officer missed applying the code – LUO section 1300. With the Planning Board’s inadvertent reallocation of 21 off-street parking spaces, the current developer is at least 62 spaces short of code. That is without any hotel!

So, what have the Friends of Rockport been doing about this? Since the fall we have been trying to get the town to acknowledge and rectify the missing site plan reviews. Their response has been to say that the time has passed to appeal the building permit issuance. That is not the point, nor the request. Our hope here, as always, is for the town to simply apply the Land Use Ordinance as written. In these two cases, allocating the 41 spaces required for work already done because of lax oversight. Plus, acknowledging the misinterpretation of the 2012 Planning Board decision on Union Hall. We have also commissioned an independent parking study of the downtown area which clearly demonstrates these very points and the added strain which will be caused by the hotel.

What can you do? Write to the town to tell them you’re fed up with the lax enforcement on Central Street. Tell Orion Thomas, the new planner, you insist they complete these site plan reviews and acknowledge the parking requirements. Plus, have him clarify the record on the 2014 Planning Board approval of Union Hall, acknowledging that 25 Sandy’s Way spaces were allocated and just a handful waived.

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.”

Those citizen’s initiatives postcards

A review of two postcards received by Rockport residents regarding the Citizen’s Initiatives, one from the Friends of Rockport and the other anonymously.

You likely received two postcards recently about the upcoming Rockport Town Meeting and the Citizen’s Initiatives. The first mailing focused entirely on the Citizen’s Initiatives, Article 3 and Article 4 (Learn more here: Article 3 and Article 4). You may have noticed that it was not claimed by any organization or person, it was anonymous. Then you received one from the Friends of Rockport, your local, citizen based, non-profit seeking to preserve our community. Let’s consider them separately:

The Friends of Rockport postcard:

  • The postcard (and the links above) helps you better understand the issues and implications of the Citizen’s Initiatives. They share with you drawings of the proposed hotel and a 20-room alternative which preserves the view, still adds to the tax base, and continues revitalization of the harbor area.
  • The Citizen’s Initiatives have over 300 certified Rockport resident signatures.
  • The remaining Articles are put forth by the five member Select Board, and not seen or reviewed by citizens beyond a Select Board meeting discussion. We particularly suggest you consider this Article 6 and Article 9.

The anonymous postcard:

  • Suggests that the Citizen’s Initiatives are an attempt “to stop a downtown Rockport boutique hotel.” They are not, they are meant to help the town stay true to its character, including the developer living up to their word on a 20-22 room hotel and following the Land Use Ordinance, Architectural Review Standards. Those standards state “…Structures shall impede as little as reasonably practical, scenic views from the main road or from existing structures or nearby undeveloped areas.” and “The architectural design of structures and their materials and colors shall be visually harmonious with the overall appearance of neighboring structures.”
  • Suggests “out of state VRBO owners” are behind the Citizen’s Initiatives. You now know that to be untrue, over 300 residents signed those petitions.
  • States that the five person Select Board opinions and recommendations are somehow better for the town than the 300 plus residents and your opinion.

Simply put:

  • Central St. view, Proposed Hotel
    This?
  • A 20 room alternative design retaining the scenic view and with architecture consistent with neighboring buildings.
    Or, this?

Learn more about this here: https://www.penbaypilot.com/article/we-hope-you-will-consider-our-rockport-recommendations-neighbors-fellow-citizens/136954

Select Board comments about the postcards on July 27, 2020:

  • Debra Hall at 7:07 in the meeting states “… The idea … that an ordinance can be passed allowing for a hotel, that someone can purchase property with those ordinances in mind, … and then to have another bite at the apple, …. That is offensive to me, it continues to be offensive to me, it will always be offensive to me.” Of course we know from the timeline that the land was purchased when hotels were not allowed in the downtown district, and the developer pushed for the ordinance change by proposing a 20-22 room hotel.
  • Denise Munger at 8:26 in the meeting states “... This petition adjusts the number of hotel rooms, it does not reduce the size of the hotel. The Hotel will still be allowed, even if Article 4 were passed, to stay end-t0-end between the two buildings. It would just result in larger hotel rooms, um. So, I think it’s important for people to understand. ….” Of course we know from the Land Use Ordinance section 1003.Architectural Review Standards that a hotel compliant with the ordinance would “…impede as little as reasonably practical, scenic views from the main road or from existing structures and nearby undeveloped areas.” The current proposal does none of these, eliminating the windows on the Shepherd Block Westerly wall and entirely blocking the view from the main street and Goodridge Park.

VOTE NO on Article 6

Article 6 proposes changes to eliminate the requirement for off-street parking to satisfy the Land Use Ordinance required numbers. Instead allowing for on-street parking and off-site parking to deliver the needed space … using public parking to support private developers.

Article 6 proposes a change to the Land Use Ordinance section 803.1 Off-Street Parking and Loading Standards. The new language is:

“The purpose of this Section is to provide for adequate off-street parking spaces to meet the needs of the use or structure. The off-street parking shall provide sufficient spaces to minimize the need for on-street parking.”

The proposed language (a Yes vote on Article 6) eliminates the current language “all new construction, alterations and changes of use, there shall be provided off-street parking and loading space adequate for their use.” Essentially meaning ‘you need not meet the parking requirements, if you ‘minimize’ the use of on-street parking.’ Vote “NO” on Article 6.

A “YES” vote on Article 6 delivers this broad, subjective language to a current Planning Board with a track record of using subjectivity to favor developers over the greater good of Rockport. Vote “NO” on Article 6.

A “YES” vote on Article 6 also approves an important new provision in the proposed language regarding off-site parking is “…may be located at a separate location subject to the approval of the CEO (Chief Enforcement Officer) or Planning Board.” In other words, off-site parking can happen without a public hearing! Vote “NO” on Article 6.

A “YES” vote on Article 6 hypothetically paves the way for developers to build on property which provides off-street parking today, like the parking behind the Shepherd Block and Union Hall. Given the Planning Board’s willingness to disregard the Land Use Ordinance scenic view provisions, you can imagine a new building rising behind Mary Lea Park. The Select Board will simply say ‘there’s a great view right down on Beauchamp Point.’ Vote “NO” on Article 6.

A “YES” vote on Article 6 would allow developers to provide remote parking for guests by operating “transit buses” or “valet parking” services through our streets instead of providing parking on site or within reasonable walking distance as currently required. (803.5). Vote “NO” on Article 6.

A “YES” vote on Article 6 would completely eliminate all  requirements relating to the Town’s upgrading of public way, including giving notice to those residents whose homes abut the project! (803.4). Vote “NO” on Article 6.

Vote NO on Article 6