‘It is a big red sore thumb. Can we at least talk about it?’

Rockport Zoning Board of Appeals seeks clarity as it considers library permit

Thu, 09/19/2019 - 7:45pm

ROCKPORT — Citizens who filled the downstairs meeting room Sept. 11 at the Rockport Opera House, and the 236 others who tuned in via the internet, got a four-hour civics lesson, courtesy of three well-versed municipal attorneys, as the town’s quasi-judicial Zoning Board of Appeals held its preliminary hearing of a library construction permit dispute.

Of concern to the appellant is whether the town should have directed its Planning Board to review the new library building plans, instead of sending the application to the Rockport Code Enforcement Officer for processing and approval.

The ZBA will have to interpret Rockport’s Land Use Ordinance before coming to its own conclusion of jurisdiction, although attorneys are trying hard to convince the seven-member volunteer municipal board to agree with their respective positions.

And while politics did attempt a foothold into the Sept. 11 hearing, the attorney advising the ZBA — William Kelly, of the Belfast-based firm Kelly and Collins LLC — consistently steered the discussion back to the legal work in front of the board.

At issue is the appeal of Rockport homeowner Stephen Earle, who purchased a house adjacent to the Rockport Village library site and who disputes the process by which the town permitted itself on May 22 to construct a new library.

“Even though I’m th evil one who has made this happen,” said Earle, toward the end of the Sept. 11 meeting. “The reality is, no one wants to stop the library.”

But, he added: “ The foundation is there, it’s just that there are ways it could be better. It is a big red sore thumb. Can we at least talk about it?”

The Sept. 11 ZBA hearing followed Earle’s submission of his appeal earlier this summer. He subsequently hired Mellor, of the Rockland firm Strout and Payson, to represent him.

Kelly was hired by the Town of Rockport to advise the ZBA, and longtime Rockport town attorney Philip Saucier, of the Portland-based Bernstein Schur, represents the town, its planner Bill Najpauer, and  Code Enforcement Officer Scott Bickford.

While Kelly is advising the Rockport ZBA, he is also ensuring a methodical and precise hearing process in the event that, should any of the parties be dissatisfied with a ZBA decision, the issue winds up in county superior court, or even the state’s highest law court.

Along with the discussions about process, as ZBA members Emily Lusher, Terri McKenzie, David Cockey, Chairman Geoff Parker, Kim Graffam, Tom Kennedy and Kevin Olehnik immersed themselves in Rockport ordinance language, witnesses were called to the podium — Select board member Doug Cole, former town manager Rick Bates, architect Stephen Smith.

And, there were some citizens who spoke during the public comment period of the meeting, such as project fundraiser John Viehman, and architect John Priestley, who produced a string of emails dating back to 2018, when he had been turned away from what others maintained were public meetings.

The Sept. 11 hearing began at 5:30 p..m. and ended at 9:45 p.m., with a decision to adjourn until Oct. 17, and by which time Attorney Kelly is to provide what Chairman Parker called, “a roadmap” for the ZBA to consider as it considers more closely the Rockport Land Use Ordinance and its expectations of  “commercial” and ‘municipal” use, and decide whether to conduct a de novo hearing on the permit application itself, or on the points raised by Earle and Mellor.

Complicating the hearing even further was the introduction by Mellor of additional objections to the town’s building permit at the Sept. 11 hearing, which prompted Saucier to cry foul, saying at one point during the debate: “I have never been to an appeal when a appellant has three arguments and raises seven more.”

Mellor had introduced his new material, some of which he said he obtained via Freedom of Access Act requests, early on in the hearing. Then it was up to the ZBA to decide whether to entertain the new material, after listening to Attorney Kelly weigh how the ZBA could process Mellor’s additions.

The hearing took place in the Geoffrey C. Parker Meeting Room, where Geoffrey C. Parker presided as Chairman of the ZBA that evening, with a room filled with citizens.

 

Role of the ZBA

According to Parker, the quasi-judicial ZBA comprises the “fact finders,” who are independent of the Select Board and the code enforcement officer. 

ZBA members, he advised, must not talk to anyone outside of the hearing about the case, and draw conclusions, “based solely on what they hear in this hearing,” he said.

“We have to have every step validated by findings of fact,” said Parker, and “be deliberate in the findings of fact.”

While Attorney Mellor asked the ZBA whether member Kevin Olehnik should recuse himself from the hearing because he is close friends with Select Board member Doug Cole, the ZBA voted 6-0 against asking Olehnik to recuse himself.

“I have an obligation to point out what has been brought to my attention,” said Mellor, at the outset of the hearing. “Dr. Olehnik has a close personal relationship to Dr. Cole, who is a champion of the project.... Kevin has breakfast with his friend, which is great. It’s what we do in small towns, but it is the appearance of impropriety if Kevin Ohlenik is influenced in the process.”

Olehnik responded: “Doug and I are close friends and have been colleagues in the past. We are friends, but he and I have independent thoughts. We have not talked about this process recently. We have been careful not to.”

The ZBA found no bias in Olehnik presiding on the board, a motion made by board member Terri McKenzie and seconded by board member Kim Graffam.

 

Appellant states his case

“I’m the guy who bought 3 Limerock,” said Stephen Earle. “I am not against the library. I support the libary. When I bought the house I knew there was probably going to be library there,” adding that he’d love to be so close.

But, he added, he wished the new library hadn't been sited as such so that he would not be, “staring at a brick wall.”

Earle characterized the library permitting process as a debacle, but that it served to acquaint him better with neighbors and people in town.

His issue, he said, is that, “there is a lot of frustration of people in the way the project has been handled and way they have been treated by the Select Board.”

Earle said he works as a real estate developer, and is accustomed to working with property owners and ironing out issues.

With most, one can, “ just sit around a table and work it out, but there hasn’t been a venue” with the Rockport library.

He said that parking, road reconstruction and way the library fits into neighborhood need to be addressed.

 

Mellor explains primary concerns, introduces new material

Attorney Mellor, representing Earle, submitted supplemental exhibits to the ZBA in hard copy documents at the Sept. 11 meeting, some of which, he said, he obtained via a Freedom of Information Act request.

Mellor said that he lives in Union, has served on the planning board there, and has been chairman of that body, indicating that he is familiar with municipal proceedings.

“This one is unique,” he said, because the permitting process of the library project lacked board oversight.

The permit, which was issued May 22 by the town code enforcement office, reflected a process by which the, “structure and project of this size was not provided to board of peers to approve.”

He said: “The decision was made what the building was going to look like and was going to be approved.”

Rockport is, said Mellor, “fortunate to have an experienced CEO, but the ordinance was not applied.”

He cited a Nov. 12, 2017 email between then Select Board Chairman Ken McKinley, former Town Manager Rick Bates and board member Doug Cole, in which Cole said he would revise a motion advocating for a $3 million project with a 7,000 square-foot library.

But the structure is now 10,400 square feet in size, said Mellor.

“Never in meetings, [and it was] never made clear that this new structure went to 10,000 square foot structure,” he said. “In the minds of many in the town of Rockport that it was never to be larger than 7,000 square feet. When and where did project increase in size?”

Mellor cited the site plan review process commonly subject to planning board oversight, and said both the elementary school and Rockport town office construction projects went through site plan review.

It is not, he said, “something new,” adding, "What is new [with the library project] is that there was no process.”

The process was not complied with because the project was pushed too quickly without proper oversight, he said.

He cited general performance standards in the ordinance, saying the town should address off-street parking as part of the project, instead of directing consideration of parking plans to the Select Board.

“It’s nondiscretionary,” he said.

The same applies to landscaping, he added.

“We’re not looking to put the kabash on the library but looking for the process to be followed,” said Mellor.

Mellor added that the height of the new building will be above the requisite 34 feet, as stipulated by the ordinance.

“How is the town to fix that violation after it is built,” asked Mellor. “You can’t go back. You can but it would be ruthless to go back after the project is built.”

He cited Section 1000 of the town’s land use ordinance, in particular the aesthetic performance standards, and said the ordinance requires that all nonresidential structures shall be subject to them.

“Shall is mandatory, not discretionary,” he said. “Shall means shall.”

Furthermore, he said, the library plan had no associated landscape plans.

“There are none, so it is not compliant,” he said.

 

Size matters

Mellor circled back to the size of the library under construction, saying, “If the public been allowed to speak, the public would say, ‘is it really necessary to have 10,400 square foot building next to his home when ordinance requires impeding as little as possible?’”

Is it for the the public good, he asked. “OK. Have a discussion with the other neighbors.”

As for the contention that the library is not classified in zoning as “commercial,” Mellor argued again that the school and town office projects underwent site plan review by the planning board.

“Why not site plan review for this large structure in middle of a village in a residential neighborhood,” asked Mellor.

He also said aspects of the library functions (it charges for services, holds a library books sale) are commercial.

 

Difference between planning board review and select board agenda

ZBA board member Kevin Olehnik asked Mellor to explain what he meant by the process, and how that differed from select board meetings where the public is invited to talk about project details.

“It should have been the planning board at that point,” said Mellor. “A project of this size is extremely unusual for one individual [CEO] to make this decision.”

Olehnik then referenced the select board meetings with the CEO, going over the library engineering and design; “that is not enough? What’s the difference?”

Mellor responded: “Are you assuming there were multiple meetings of going over ordinances?”

Earle then interjected that there were “many meetings where people were told no comment, to sit down and be silent.”

Attorney Bill Kelly said, “at the core of the appeal is that the CEO did not have jurisdiction to make the decision that he did.”

He qualified his thoughts, adding that the select board is responsible for political decisions; i.e. is a project a good idea and, “shall we fund it?”

“The ZBA has to look at ordinances that apply and just these documents,” he said. “Whatever occurred previously is not your jurisdiction.”

The primary question surfaced again, Was the planning board required to review the site plan or did the CEO have the proper jurisdiction.

Get the issues distinguished, said Kelly, “because they are boiling water.”

Kelly also agreed with ZBA members who indicated that the jurisdictional issue was important to tackle first. Was the permit application to go to the planning board or was it appropriately channeled to the code enforcement officer?

But when Terri McKenzie asked Mellor about his contention that the school and town office building projects went through site plan review before the Rockport Planning Board, Kelly interjected: “Whatever happened in the past is irrelevant. The ZBA doesn’t look at prior precedence. You are really focused on the language of the ordinance.”

To which Mellor responded: “Regardless of who has jurisdiction the ordinances need to be applied. You have to go through these ordinances to make sure it appropriate according to your own rules.”

 

Rockport’s attorney differs, disputes legality of new material

But Phil Saucier, attorney for Rockport, was firm in saying that commercial use is not a factor with the new library.

“This is not a change of use,” he said. The new library replaces the old library, which has since been torn down.

“From our view, the site plan review simply does not apply to a municipally-owned library,” said Saucier, who went on to dispute Mellor’s claims on ordinance requirements, saying the need to meet performance standards in Section 1000 was unnecessary.

“The intent of Section 1000 is to apply when a project needs to go through site plan review with the planning board,” he said. “Our argument is that we met the standards.”

Then, Saucier objected to Mellor’s introduction of new arguments and evidence.

“Mr. Mellor went through a litany of arguments,” said Saucier. “It’s our view that he needed to provided his argument ahead of time.”

Arguing new facts, “should not be germane tonight,” he said,

Kelly responded to the ZBA, telling its members that: “You are creating your own record.”

State statute requires a ZBA hearing to be de novo, but, Kelly added: “There is a not a limit on scope of issues that Patrick Mellor put in his appeal.”

But with the emergence of new material at the hearing itself, there is a possibility, he said, that Phil Saucier was, “unduly prejudiced, because Patrick Mellor exceeds what he put in his appeal.”

Saucier said he disagreed with Mellor, saying “a de novo review is a de novo review of issues raised in the appeal.”

He said he had, “never been to an appeal when a appellant has three arguments and raises seven more.”

Saucier then proceeded to verbally counter Mellor’s statements about the plan, saying the CEO had all building plans when reviewing the application. Those plans, he said, include provisions for lighting, that the design was “visually harmonious,” that the parking plan meets ordinance standards, that the reconstruction of the intersection of Russell Ave., Union, Central and Limerock streets is separate from the library building construction project, and that road projects fall under the exclusive jurisdiction of the select board.

The parking plan, as approved by the Select Board in the late spring (seven spaces with room for a total of 14 along Limerock Street) are on-street parking, not off-street, which would require green space buffer.

To the point of transparency, Saucier said: “This has been more than than a public process. Everyone in this room knows about this project. Ultimately, the voters supported it, not only the budget but the design. In our view, the CEO was not in error.”

The conversation then circled back to the introduction of new material by Mellor.

Board member David Cockey asked whether it would be appropriate for Mellor to submit his additional points presented Sept. 11 in writing.

Mellor said he would address it a more thorough fashion at the hearing, and Saucier could then respond.

Saucier countered that presenting additional material would be, “another bite of the apple.”

ZBA Chairman Parker said: “they haven’t felt heard. I’m inclined to hear them. I’m inclined to have this board review those. “

Kelly responded: “Mr. Saucier is correct. It should not be reopened to appeal for a third time. You should hear Mr. Mellor’s comments, but there is an end.”

Cockey then asked whether an expanded version of the claims should be provided.

“We have to have reference to what the claims are,” he said.

Kelly said: “It’s too much to allow for an applicant to amend the application with another writing.”

 

Town’s attorney calls witnesses

Saucier called Architect Stephen Smith, former town manager Rick Bates and current Select Board member Doug Cole to state their relationship with the project, and to answer ZBA questions.

Smith described how his firm got the library construction design job in 2018, after the previous architect withdrew interest. At that point, the library design called for 9,300 square feet of finished floor space.

“We were hired to present a new design,” said Smith, and to reduce the budget and building square footage by 25 percent. The new goal was 7,000 square feet.

The square footage eventually increased with the 5,000 square foot footprint because the design evolved to include a poured foundation, as opposed to pouring concrete onto a slab, which created more space in the bottom floor space beneath the main floor.

 Smith said it, “made sense from economical standpoint not to pour slab on grade.”

He said the design committee, comprising himself, engineers, select board members and the town manager, met every Monday at meetings open to the public, in “an open process.”

He added: “Once a month the Select Board would have a public meeting and we would present the design, so the public could have input.”

Smith said the height of the building is 29.5 feet, and, “has a 10-foot drop on the site.”

The finished floor elevation is within 18 inches of the old library, he said.

Smith said thew town has its own lighting consultant, and has hired hired Keith Smith as landscape architect. There are preliminary plans now, he said.

Cole said: “I represent the political side of all of this, which isn’t germane to the discussion.”

He added that he was proud to be part of the library team moving the project through a, “sometimes painful process.”

Library parking was the subject of multiple town meetings, he said. The Select Board has jurisdiction of the parking, and last spring he said he made a motion at a meeting to create 14 on street parking spaces.

“My colleagues disagreed, and the number reduced to seven,” he said.

The budget process was open and clear, he said, with the  total cost of $3.5 million, $500,000 of which would be soft costs.

The parking, intersection and stream work was stripped out of budget and put into the town budget,” he said. “This year, the intersection and stream went into the budget and the parking [costs] went back into library project.”

He then spoke to the room.

“To neighbors, I understand how difficult it can be to have a project of this scope going on in the neighborhood,” he said. “Several people have been friends and those friendships have been lost.”

He added that his select board duty is to the: “other 2,500 people in Rockport who live beyond Route 1. I am empathetic to their [the appellant and concerned neighbors] feelings, but I have ave a larger responsibility.”

Bates then spoke, outlining his involvement with the library project, since June 2013 until today, as consultant to the town.

He said the debate started well before his time as town manager, that there were multiple public meetings to discuss it, and that he and the town planner had the discussion about whether the project needed to go to the planning board.

“Bill’s [Najpuaer] answer both times was ‘No, it does not.’”

 

Public Comment

By 8:30 p.m., ZBA Chairman Parker opened the floor to public comment, with architect and Rockport resident John Priestley leading the way.

As a former seven-year member of the Rockport Planning Board, he disputed the contention that the library was not considered “commercial” in its classification for permit consideration.

‘For six seven years, I sat on planning board, and we reviewed countless projects that did not meet strict interpretation of commercial,” he said.

He asked the ZBA, “Are you going to dodge this by accepting narrow definition of what commercial means or what this ordinance and the people of our town intend?”

Priestley also said there was a lack of public input to the design process.

“When I served on the planning board, we heard from the public and didn’t put a limit on their time,” said Priestley. “It was an inclusive process, and we applied standards that worked for everyone. That’s why the appellant is here. People are feeling it [the library] is getting rammed down our throats.”

He also disputed earlier comments that said the design team held public meetings and referenced an email exchange with Town Manager Bates he had in May, 2018.

That exchange follows:

Hello Rick,
 
Do you know if there has been any progress on the library, and is there a meeting this Thursday?
 
Thank you,
John
 
 
To which Bates replied: 
 
From: "Richard C. Bates" <RBates@town.rockport.me.us>
Subject: RE: Library meeting
Date: May 16, 2018 at 5:00:43 PM EDT
To: John Priestley <jpriestley@ppaarch.com>

John,
Sorry about the delay.
After consulting with our attorney, this is not a committee formerly established by the Select Board and is an informal workgroup, they have no real final decision making power, do not have money to spend  and therefore not a public meeting.  It is a group essentially that got formed organically by me.  the select board self-selected two members to help with the design.
 
The Library will be discussed at the next meeting on the 29th and you are welcome to attend that meeting, as that one is public.
 
Again, I am sorry for the delay but I wanted to be sure that my opinion about the status of the meeting was correct by checking in with Town Counsel before answering.
 
RB

 

Closing comments

In an attempt to resolve the debate over whether Attorney Mellor’s introduction of new points in the appeal at the Sept. 11 meeting, Chairman Parker asked: “Mr. Saucier, do you feel you have given your position on new things not in the material.”

Mellor and Saucier then engaged in another conversation about the reasons they advocated for a planning board review, or not.

Saucier argued that the library was not a change of use, and therefore did not require planning board review.

Mellor argued that meeting performance standards is requisite to the process, whether or not a project has to undergo site plan review before the planning board.

“They are separate and distinct ordinances, whether nor not site plan review applies,”

Stephen Earle then spoke again, thanking Cole for acknowledging the process.

“Even though I’m th evil one who has made this happen,” he said.

He added: “The reality is, no one wants to stop the library, no one is saying there was not process, we are not take away the parking, the foundation is there, it’s just that there are ways it could be better. It is a big red sore thumb. Can we at least talk about it?”

Earle advocated for more review of the design.

“We are not taking away the time and effort and passion away,” he said. “It’s just that there are clearly parts of the ordinance are not being met that could make it better. I don’t understand why the town is so desperate to not have this review. Look for opportunity for people to come in and talk about some things are not in the rule book.”

Saucier responded: “This appeal is about process and our argument is about process. This project does not have any of these applicability requirements to go to the planning board. Section 1000 would not be something that Scott [Bickford] would apply.”

“The ordinance is the law and we need to read the law,” said Bickford. “Don’t try to read things into the ordinance we wish were there, and there not.”

Then ZBA board member McKenzie said: “We need to decide on jurisdiction.”

That includes, she said, “focusing on the difference between commercial and municipal.”

Chairman Parker then asked, “Do we need a road map that ties it up?”

“I support adjournment until Bill Kelly produces a map,” said board member Cockey.

They then debated whether to go for a site walk of the library, and ultimately voted 5-1-1 against the motion to do so. Cockey voted for a site walk and board member Emily Lusher abstained, saying she could not physically walk it.


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