Thoughts from the Friends of Rockport

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.

Downtown parking…and so it begins

Anyone driving through downtown Rockport in the past few weeks will have no doubt noticed the distinct absence of downtown parking spaces, even during “off peak” hours.  Why is this?  Well, the developers and their entourage have effectively usurped virtually every available parking space within blocks of the hotel.

For example, the developers have dedicated the entire parking lot on Sandy’s Way (behind the nascent hotel) to construction. That is despite all of those spaces being pledged to tenants in the existing buildings…18 Central Oyster Bar and Grill, Bay Chamber Concerts & Music School, Nina June, and so on.  Too bad for you, tenants!  To paraphrase a line from “Seinfeld”….No Parking for YOU!

In addition, since the hotel construction site encroaches on the street between 18 and 22 Central, the sidewalk and the parking that went with it are gone – and the developers regularly block off most of the downtown parking extending up the street for various staging activities.  To make matters worse, the developers and their workmen have taken over all of the parking spaces overlooking the harbor, most of the parking between 18 Central and the Opera House, and a good chunk of the parking on the north side of the street.

The photo shows Central Street in Rockport on a recent Saturday evening (yes, construction continues on Saturdays and Sundays).  This is without anything happening at Bay Chamber, by the way.  Note the cars lined up all the way up to the Opera House.

Did you, a resident or visitor, have an urge to come to downtown Rockport to patronize a restaurant, or the music school?  Well, too bad for you, buddy.  Unless you’re a developer or work for one, don’t plan on parking anywhere downtown. 

It hardly needs saying that this is going on BEFORE the hotel opens.  Which highlights the fallacy perpetrated by the town that there is plenty of parking and the developer need not provide any more.  Well, perhaps there is enough parking for the hotel…if nobody else wants to park in Rockport!  Which is, apparently, how the town wants it.

To be fair, the town has now proposed an expensive new parking lot overlooking the harbor…naturally taxpayers foot the bill.  Largely because the Planning Board misinterpreted the historic record on Union Hall parking and the Code Enforcement Officer failed to require site plan reviews (and parking) for the 18 Central Street and 22 Central Street renovations. That is at least 62 required spaces never addressed by the town.

So, the town is not requiring developers to provide sufficient parking for their enterprises (as required by the LUO). Then allowing them to monopolize all of the public downtown parking for their own purposes. Then suggesting the rest of us pony up to build a lot that will only partially replace the parking the developer has appropriated. And, they want to meter the new lot … so you can pay to use it, too! If it seems a bit off to you that a private developer should take over all the downtown parking, leaving nothing for anybody else, then we encourage you to contact your Select Board and let them know how you feel.

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.

Rockport Parking: An Independent Assessment

Independent Rockport parking study shows 182 space deficit without the hotel. That rises to 256 if the hotel is built.

Rockport parking remains at the heart of the hotel controversy. While there was much discussion of parking in the various venues leading up to the Planning Board approval of the hotel at 20 Central Street, there was never a full, open, and accurate review of the facts. One fact is that the Land Use Ordinance (LUO) requires developers to provide off-street parking. Another is that the developer is trying to claim that 21 parking spaces are available behind the Central Street buildings for the hotel. As we have already demonstrated, all the spaces, and more, have been previously allocated to the Shepherd Block and Union Hall.  Since neither the developer, nor the town, took any initiative to have an independent assessment of the parking situation, we did.

This Rockport parking study was conducted by SLR Consulting, a global engineering firm with over 1,600 employees. Their findings are what you likely expect. They found public parking within a reasonable walking distance of the hotel site to be 138 spaces. Their analysis, averaging the LUO requirements with Institute of Transportation Engineers (ITE) parking demand, shows a 256 space deficit in the hotel area. Even without the hotel, a 182 space deficit already existed. It is important to understand that this is the LUO and ITE standard for required parking. Further analysis by SLR indicates that peak demand average is 271 spaces, or a 133 space deficit.

The developer’s properties, from 18 Central (Shepherd Block) to 24 Central (Union Hall), including the new hotel demand, represent 59 of these deficit spaces. Those properties peak demand averages 108 spaces vs. a developer provided capacity of 49 spaces on Sandy’s Way. Keep in mind what the report notes: The Town of Rockport Land Use Ordinance Section 803 places the burden for providing off-street parking on developers. “The purpose of this Section is to provide for adequate off-street parking spaces to meet the needs of the use or structure.” Do you want to see the report? Send an email to info@friendsofrockport.org with the subject line Independent Parking Study.

You know from our prior post (Rockport Parking: A Brief History) that outlined how these properties owned by the hotel developer have gotten misaligned with the LUO. To recap, they changed the street level use of 22 Central Street in 2017. Failure by the town to perform a site plan review resulted in an understatement of 11 spaces. Then, during the hotel review, the Planning Board reallocated 21 spaces by misinterpreting the 2012 approval of Union Hall renovations. Finally, last fall the town failed to perform a site plan review for the expansion of the Shepherd Block restaurant space resulting in an understatement of at least 30 spaces. The LUO requires 62 spaces, and the town is not enforcing your ordinance. This is definitely reason for you to contact Orion Thomas, the new Town of Rockport planner. Tell him the town must rectify these errors which have been raised by the Friends of Rockport and individuals over the course of the past six months.

What do you think is the town’s reaction to the Rockport parking study? Mr. Thomas wrote of it “the Town cannot nor will use it because the Town did not seek it out. The appropriate channels were not utilized.” You may recall multiple citizens, on several occasions during Planning Board meetings addressing the hotel directly requesting a parking and traffic study be done prior any approval. It is unclear to us what “appropriate channels” may be beyond asking the Planning Board in the context of such a major change downtown. Keep in mind, the town planner sits in on these meetings (all of which occurred prior to Mr. Thomas taking the post).

Are you unhappy about the prospect of a worsening Rockport parking situation? About the town simply ignoring these errors? About the town transferring the burden to taxpayers rather than the developer who is causing the problem? Then this is the time for you to make your feelings known.

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.

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.