ROCKPORT — Three hours of deliberation and discussion ended Thursday evening, Jan. 27, with four members of the Rockport Planning Board agreeing to continue their meeting until Feb. 3, when they are to officially sign findings of fact supporting that the new Rockport Harbor Hotel is compliant with municipal architectural standards and meets parking requirements.
But the issue remains complex, with a judge still considering motions from various involved parties on how to address 2020 voter approved Petitions A and B that require a parking study in Rockport Village, as well as reducing the number of allowed hotel rooms, per hotel, in the zone from 26 to 20.
All the parties are asking the court for clarification on the issue, as requested in late January court filings.
Planning Board Chairman Joe Sternowski, along with members John Viehman, Mark Haley and Tom Laurent, had convened via Zoom, along with attorneys, the town planner and the hotel’s owner, to consider Knox County Superior Court Justice Bruce Mallonee’s January order that directed the town to review parking and architectural harmony requirements associated with the hotel site plans.
Three other Planning Board members — Victoria Condon, David Pio and alternate Carter Skemp — were not present.
With the court proceedings not over, town officials and board members are careful to not to comment on any aspects of the issue, especially concerning whether the town is to commission a parking study and if the town is to require the number of rooms in the hotel be reduced from 26 to 20.
“We cannot comment due to this still being an active application on remand from the Superior Court,” said Town Planner Orion Thomas, Friday afternoon, Jan. 28.
However, it has been discussed that the Rockport Code Enforcement Officer may assume purview over the traffic study, because that civil action was remanded back to the CEO. It remains a point of contention.
In his Jan. 3 court order, Justice Mallonee set deadlines for the attorneys representing the parties to file additional motions no later than Jan. 17, with the responses due by Jan. 31, and then the final replies due by Feb. 7.
The attorneys representing the Town of Rockport, Friends of Rockport, and 20 Central LLC have been filing motions and sending emails disagreeing with each other throughout the month of January, as the folder holding their documents at the county court house thickens.
Meanwhile, construction work at the Village hotel has been suspended, on anticipation of a new building permit to be issued by the town.
The case, known as Friends of Rockport vs. the Town of Rockport, is regarded by attorneys as considerably complex. 20 Central LLC, the name of the business that owns the real estate and is building a hotel there, is as an interested party named in the case. 20 Central refers to the actual address on Central Street in Rockport Village.
Attorney Kristin Collins, who is with the firm Preti Flaherty and who represents the Friends of Rockport and citizens John Priestley, Mark Schwarzmann, Clare Tully, David Barry, David Kantor, and Winston Whitney, had said January 27 during her 15-minuted allotted speaking time that any change to a site plan, such as reducing the number of rooms, is subject to an amendment and triggers a whole new site plan review by a municipal planning board.
“We need to put the brakes on the whole process, and wait for them to submit a site plan amendment to address the reduction of room number,” she said, January 27. The application, she said, was not ready for a remand.
“The judge stated clearly that the basis for this review is going to be modified by that reduction in 20 rooms,” she said.
She added: “The board has to go through analysis as to whether different burdens on parking can coexist..... You need a lot more data and information, because town never did a parking study.... We went out and got a parking study done and they found a deficit of 133 spaces post-development.”
Those “real demands” associated with the hotel 20 Central lot and downtown Rockport must be assessed via a parking study, she said.
“You have to do that,” said Collins. “That parking study needs to be commissioned.”
She said the Planning Board was also to review whether the new hotel structure was harmonious with other buildings in Rockport Village.
Collins said the Planning Board’s Jan. 27 site walk of the hotel was a surprise to herself and her clients. While it was on the agenda, the site walk had not been mentioned to her two weeks prior to the meeting, when she received notice of the Planning Board’s Thursday meeting, she said, January 29.
Collins said that the board had been instructed to rely solely on the established material record, and that impressions gathered while making a site walk of the new hotel, and from letters written to the board by area architects in support of the hotel’s architectural design and its integration with the two other Village brick blocks, were procedural errors.
At the beginning of the meeting, Planning Board Chair Joe Sternowski reminded the board that the review and discussion of the application would be limited to the two items passed down by the Superior Court order — the parking spaces in Sandy’s Way (the parking lot behind 20 Central) to satisfy parking requirements and consideration of the architectural harmony, specifically balconies, relative to the surrounding buildings.
“In this review, the board must substantiate its findings by comparing the requirements in the ordinance to the material that had been previously submitted by interested parties in this application. In no case should the board refer to any material outside of what is on record with the board and if we tend to wander off these topics, I’m going to interrupt you and get you back on topic.”
He continued: “We will not be considering any documentation or material that has been submitted in the last 30 days as part of our decision. We will look at all the material that is on the record. However, after we have examined and made a decision on the material in the record, we will consider either new or recent materials submitted would cause us to do anything to support or refute the information that is on record.”
Town Attorney Phil Saucier, of the firm Berstein Schur, disagreed with Collins on the fact that the board conducted a site walk, and said the board members had a legal right to do so; but, he agreed that the board was only to base its January 27 decisions on the existing record.
After Collins concluded her 15-minute presentation, Tyler Smith, a principal of 20 Central LLC and designer of the new hotel, said the Planning Board had already concluded that architectural harmony had been achieved, and illustrated that the elements of the hotel indicated a commonality of design and color, along with features, with other buildings along and in the vicinity of Central Street.
He produced a spreadsheet analyzing the design and color of architectural features within a 500-foot radius of the new hotel. More than 80 of buildings in 500-foot radius have a deck or balcony, said Smith.
“Based on the Rockport Historic District data, it has been shown that the architectural elements of the hotel are consistent with architectural elements of the periods of the directly adjacent buildings.”
When broadened to 500 feet of the hotel, “the architectural design materials and colors of the hotel are the same as, or compliment those structures.”
When Smith referenced supporting letters of area architects, Collins interjected and raised objections to what she called “new evidence.”
Smith responded: “Kristin, I’m, sorry. I did not interrupt you when you presented new evidence. Perhaps you can comment when I am finished.”
Collins proceeded with a comment, and board member John Viehman said, “can we mute that?”
That’s when Attorney André G. Duchette, who is with Taylor, McCormack & Frame and who represents Smith and 20 Central LLC, said: “If Kristen is going to make an objection I would object that her presentation wasn't submitted 72 hours as required by the bylaws.”
Smith said the parking requirements were properly assessed by the Planning Board and that there is no shared parking in Sandy’s Way.
“Even though the Sandy’s Way parking lot is open for the public to use, the lot does not meet the land use ordinance criteria. All the parking spaces in the Sandy’s Way parking lot are either designated for use by the hotel or the by Shepherd building, and neither application applied for nor were granted shared use.”
Throughout the meeting, the Rockport Planning board members remained intent on reviewing the two agenda items before them concerning architectural harmony and parking issues.
That was despite Collins’ interpretation that the code enforcement officer does not have the jurisdiction to review the required parking study, “because he does not have the authority to approve any ‘off-site or shared parking, or waver of parking requirements,’” as she had written in a January court brief.
The town, however, has been arguing that the question of the parking study, as well as the question of the number of hotel rooms allowed in Village was raised separate from the judge’s remand concerning adequate parking, and not applicable to the January 27 site plan review proceeding before the Planning Board, as stated by Rockport’s attorney, Daniel Murphy, who represents the town in this specific court case, in a January 18 letter to Justice Mallonee.
At the January 27 meeting, the Planning Board members each verbally endorsed the issue of harmony, saying the balconies have receded somewhat in amount of space they are taking up.
“When you look at some of the adjoining buildings they look almost warehouses because they are very plain, very flat,” said Board member Laurent. “The facade of the hotel does look more modern but the material gave a very nice appearance and blended in nicely with the rest of the block.”
Board member Haley agreed, saying that as he drove through Rockport Village on a regular basis, the design presented itself as harmonious, “along the train of adjacent buildings.”
He said the renovations and the new developments are not going to look identical to old ones, and that there is continuity along the front side of the building that fits with the character of the brick blocks.
Chair Sternowski also agreed, saying the, “mass and size of the building are proportional.”
He added: “It appears that most of the material in all of these buildings are native to Mane. I t looks like it belongs to the State of Maine.”
The board reviewed the land use ordinance requirements and determined that the materials and colors of the new hotel were consistent with adjacent buildings. The board voted, via a straw poll, that the proposed structure was in compliance with the LUO’s Section 1003.
They then agreed that the building has a harmonious presence and augments existing buildings, as well as fills a gap.
“Based on the plan, it absolutely fits and always had,” said Viehman.
I think ‘complements’ is a perfect word,” said Haley. “It is visually appealing and fits historic standards.”
They then took another straw vote, 4-0, in favor of the plan meeting requirements of LUO Section 1301.
The issue of the number of adequate parking spaces in the back of the hotel, as well as shared parking, on the privately owned parking lot known as Sandy’s Way, drew scrutiny by attorneys, a judge, the town planning and codes office, and planning board members of Rockport Planning Board meetings dating back to 2008.
The matter of contention, said Chair Sternowski, was whether permits and waver resulted in oversubscription of parking spaces downtown.
“What we want to do is go back through the minutes, make sure we understand, and determine if the spaces have been over-promised,” he directed the Planning Board members.
The task also included putting definition of former waivers of the Planning Board more than a decade ago.
Laurent said that the Planning Board, during its 2021 review of the site plan application: “had long drawn out discussions about that, whether they were allocated to other users. The end result was they are not.”
Haley, who was not on the Planning Board at the 2021 site plan application review, said that in his review of the old minutes, “my interpretation is consistent with Tom and John.”
The issue of parking is also tied to Village infrastructure history, and that the parking spaces in the privately-owned Sandy’s Way increased post-2012, doubling the number of spaces there. As well, ownership of the brick blocks along Central Street changed, from the holding company Leucadia National Corporation LLCs to the Smith family’s LLCs.
Former ownerships of the various brick buildings were tied to individual LLCs, as they currently are. Additionally, one of the buildings — Union Hall – underwent a municipally-approved changes of use from educational to commercial, with residential use on the top floor.
“I believe that this Planning Board was correct in our previous determination that are are indeed 21 spaces that we allocated to the hotel behind the Shepherd Block,” said Chair Sternowski.
The three other board members agreed with him, with the final straw vote of 4-0.
After the vote, Sternowski said that he: “would suspect the applicant is going to patrol those spaces and would allow shared parking when not used. The public does use that parking lot sometimes for Opera House events and planning board meetings. Regarding the use of those spaces I would expect the owner would patrol and allow for public sharing as permits.”
The various attorneys have asked for clarification from Justice Mallonee concerning the effect of the parking study and room number petitions, and which municipal office or board has jurisdiction over that matter,. The date for final responses is February 7.
The court, meanwhile, will continue to reconsider the motions from both sides, which won’t happen until Feb. 7.
On February 3, the Planning Board will officially vote on its findings of fact made Jan. 27.
Whether or not that means the town’s code enforcement officer can issue a new building permit after Feb. 3 remains to be seen.
Attorney Collins remains firm to her position that the issue of parking.
“We are most concerned about the [Planning Board] conclusion that it wasn’t shared parking, which everyone knows to be false,” she said, Jan. 29. “The hotel is displacing other parking and is going to exacerbate other parking.”
She said her clients, the Friends of Rockport, “are ready to keep appealing appealable issues.”
She added, “The town’s procedures in dealing with this are creating new issues.”
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