AUGUSTA  — On Dec. 3, Rockport residents Sarah Price and Stephen Florimbi filed an appeal with the Maine Board of Environmental Protection of a permit granted Nov. 7 by the state to their neighbor, Lily Pond Partners LLC, that allows the LLC to remove a section of the old railway bed/road that serviced the transport of limerock from inland quarries to kilns at Rockport Harbor at the turn of the 20th Century.

The appeal said: "As abutting landowners we will be adversely affected by the permitted project and so we have standing as aggrieved persons."

The appellants requested a stay of the permit, "in order to preserve the status quo while the Board gives this application the scrutiny it warrants by requiring instead a complete [Natural Resources Protection Act] NRPA application and review including a detailed project description, a hydrology report, proof of right title and interest (TRI) in the subject property, and a site visit."

Price and Florimbi own a home and a parcel of land on Union Street in Rockport that abuts Lily Pond. Lily Pond Partners LLC, whose principal named on the Maine Department of Environmental Protection (DEP) application documents is Robert Seminsky, with an address in Rye Brook, New York, owns an abutting parcel, which also fronts Lily Pond.

Running parallel to the pond and across both properties is the old "Rock Road", constructed in the 1800s as infrastructure for privately-owned businesses to transport limerock from quarries, some of which lie beneath Midcoast Solid Waste Transfer Station, to Rockport Harbor, where it was processed in kilns before being transported by vessel to East Coast ports to be used as mortar for construction.

The Rock Road was never a railroad bed, but it was a stone road used by carts pulled by horse, oxen and mule.

The appeal follows the Nov. 7 permit approval by the DEP that granted Lily Pond Partners LLC permission to remove a section of the old road on its 4.32 acre parcel. The The application stated the project would entail removing: "an old railroad bed and return the land back to its natural state. The property address is just north of 124 Union Street, Rockport."

William F. Hinkel, executive analyst at the BEP, said Dec. 4 that the BEP received the appeal Dec. 3.

"An appeal and an application for a stay of a license are separate proceedings," he said, explaining the BEP and DEP process.

"Appeal proceedings are processed by the Board and are governed by Chapter 2, § 23. See attached PDF of Chapter 2. The filing of an appeal does not stay the underlying license decision," he said. "A licensee may proceed with the project as licensed, understanding that doing so is at their own risk while a decision on appeal is pending.

"The Board may affirm all or part of the decision of the Commissioner, affirm all or part of the decision of the Commissioner with modifications, or new or additional conditions, order a hearing to be held as expeditiously as possible, reverse the decision of the Commissioner, or remand the decision to the Commissioner for further proceedings. Most appeals take several months to process and decide.

 Hinkel also said that an application for a stay of a license decision is processed by the DEP Commissioner and is governed by 5 M.R.S. § 11004 and further addressed in the context of a separate simultaneous appeal in Chapter 2, § 23(M).

"There is no time limit associated with the Commissioner’s decision on an application for a stay," he said. "However, the Commissioner will review and decide that request as expeditiously as possible given the nature of the request. A petitioner must make a showing of irreparable injury to the petitioner, a strong likelihood of success on the merits, and no substantial harm to adverse parties or the general public to obtain a stay."

An intent to file the permit application had been submitted "on or about Nov. 3" according to documents filed at the DEP and the landowner had signed the certification of notifying abutters on Oct. 31. Abutters were notified by letter dated Nov. 3.  Price and Florimbi, as well as several other neighbors, had submitted letters of concern about the Lily Pond Partners LLC permit application during the original application process in early November.

The Rock Road is mentioned in deeds dating back to the 1857 (to when Rockport was part of Camden), as well as more recently over the past 30 years in easements held or reserved by multiple parties, including the Town of Rockport, Mid-Coast Solid Waste Corporation, and the Penobscot Bay YMCA. In 1999, Rockport's Select Board had committed to searching the title but results, if there ever were any, or if an actual title search had ensued, have not been made clear.

Abutters and neighbor letters also referenced wetlands close to Lily Pond.

Price and Florimbi wrote in their appeal: "The proposed removal of nearly 200 feet in length and 1,700 cubic yards in volume of the stone causeway is a significant undertaking and an extreme measure with potentially damaging consequences to the very wetland the applicant purports to restore as well as to neighboring properties (including our own), to vulnerable Lily Pond (recently from the Impaired Waters list after decades of community work to reverse runoff and expand the natural buffer zone), and to the Rock Road community trail that adds to our and our fellow Rockport residents’ quality of life and property values."

They argued four points:

1) The title to the Rock Road has not been clarified, and Lily Pond Partners LLC must show it has title to the stone causeway section, said Price and Florimbi. They said that, "boundary surveys such as one done by Landmark Corporation June 13, 2002, label this 'Rock Road' as 'Status Unknown.' The deed establishing the Rock Road shows ownership shared by the multiple owners of the land the Rock Road crosses. (See Florimbi/Price Appeal to BEP, Exhibit A, Commissioners Partition, Waldo County Deeds Vol. 94, Pages 226-234.)

"Deed transfer documents state that the Town of Rockport owns a release deed to 'a certain lot of parcel of land known as ‘Rock Road’ constituting the entire length and width of ‘Rock Road’ running from the northwesterly corner of Parcel B described in a deed from the Town of Rockport to this Penobscot Bay YMCA recorded at Book 2640 Page 329 in the Knox County Registry of Deeds, to Huse Street located in Rockport, Knox County, Maine…' See Florimbi/Price Appeal to BEP, Exhibit B, Knox County Deeds, Book 2689, Pages 39-45.)"

2) The appeal questions whether the project is part of a larger development plan.

"We urge the Board to require a complete NRPA application and review including a detailed project description, a hydrology report, proof of right title and interest (TRI) in the subject property, and a site visit," they wrote.

3) The boundary line they share with the Lily Pond Partners LLC is a year-round stream. "The protection of the stream is unaddressed in the application," they said.

4) Proposed work is to take place in significant wildlife habitat, they said, "including not only a year-round stream that may be destroyed, but also potential vernal pool habitat and inland waterfowl and wading bird habitat (all undisclosed on the permit application and unaddressed by the Permit that was issued)."

5) And, Price and Florimbi said the destruction of the Rock Road, "is contrary to the best interests of the Town of Rockport and its inhabitants, particularly those who are adjacent landowners."

To the latter, they wrote: "The Rock Road is now a mostly secluded trail connecting the towns of Camden and Rockport. Through the shared generosity of multiple landowners, it provides access to Lily Pond and links to the local YMCA, Maine Coast Heritage Trust’s Aldermere Farm trail system, and beyond. It serves a vital role for recreation in our community."

Price and Florimbi asked the BEP to halt action being taken or, "to be taken by the applicant pursuant to the Permit until a full examination is conducted and potential harm to interested parties is resolved; require a complete NRPA application including a site visit; produce a detailed project description as well as a specific description of the 'natural state' to be restored and 'scientific evidence that the proposed, habitat-disturbing activity will provide a warranted environmental benefit."

They also asked for a hydrology report detailing the impact on the stream that serves as a boundary line between our property and the property in question, on Lily Pond, and on any affected properties in its watershed; "provide assurance that our land will be protected accordingly by not permitting the applicant to excavate any part of the stream that serves as our boundary line; and require the applicant to show TRI in the land affected by the proposed work, prior to the issuance of any permit."

Reach Editorial Director Lynda Clancy at lyndaclancy@penbaypilot.com; 207-706-6657