ROCKPORT — The Maine Board of Environmental Protection said Dec. 9 that two more appeals of a state permit granted to a developer to remove a section of old Rock Road in Rockport were received and are now being considered by BEP members.

Rob Danegger, an abutter to 124 Union Street, filed a motion to stay any movement toward removing the road; likewise, Geoffrey Scott, of Camden, filed an appeal and a motion to stay the permit issued Nov. 7 by the Maine Dept. of Environmental Protection, " to remove an old railway bed and return the land back to its natural state."

Last week, Rockport residents Sarah Price and Stephen Florimbi had submitted their appeal to the BEP.

"Embedded in each of the appeals is an application for a stay of the permit," said William F. Hinkel, BEP executive analyst.

"The applications for a stay are procedurally distinct from the appeal proceedings and are currently before the DEP Commissioner for review and a decision," he said. "The appeals are currently under review by the Board Chair and Board staff.

"The appeal filing deadline has expired; no further argument or other information should be sent to the Board at this time. Correspondence from the Board to appeal participants acknowledging receipt of the appeals and providing next steps in the process will follow, likely next week." 

The three appeals ask the BEP to preserve the status quo of the Rock Road and that the BEP review the permit application that was originally submitted Oct. 31 by Lily Pond Partners LLC.

The LLC's principal is Robert Simensky, of Rye Brook, N.Y., and his application said he wanted to remove the, "old railway bed and return the land back to its natural state."

That application was filed under the DEP's Permit by Rule under the state's Natural Resources Protection Act.

The DEP issued its acceptance of the project on Nov. 7.

The appellants, however, are requesting the BEP require more information about the environmental implications of removing the Rock Road section. They ask that Lily Pond Partners LLC be required to submit a complete Natural Resources Protection Act application, as well as a detailed project description, a hydrology report, and proof of right title and interest (TRI) in the subject property.

They also ask that the DEP conduct a site visit.

"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, to vulnerable Lily Pond (recently removed 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 local residents’ quality of life and property values," said Scott, in his Dec. 7 appeal.

Like Price and Florimbi, Scott said that Lily Pond Partners LLC failed to meet licensing criteria and standards for removing the road section, which has been described as a stone causeway.

 The Rock Road, which runs parallel to Lily Pond and across several parcels that lie between Union Street and Lily Pond in Rockport, was never a railroad bed, but was a stone road used by carts pulled by horse, oxen and mule.

The Rock Road was 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 the limerock was processed in kilns before being transported by vessel to East Coast ports to be used as mortar for construction.

Scott stated four more points in his appeal:

"Based on statements made by the applicant to the Town Office, this project is part of a larger real estate development plan undisclosed to the Board by the applicant, and the intent stated on the permit application of restoring the property to its natural state is misleading.

"A year-round stream abuts the property on the south side. The protection of the stream is unaddressed in the application.

"I am aware that the proposed work area is part of a significant wildlife habitat 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).

"The applicant’s proposed destruction of the Rock Road is contrary to the best interests of the Town of Rockport and Camden and its inhabitants, particularly those who are adjacent landowners."

At the Dec. 8 Rockport Select Board meeting, the DEP permit was discussed at length amongst the board, and with neighbors and residents of both Rockport and Camden.

At the meeting, citizens learned that the town's code enforcement office had also issued a permit for the same location, following on the DEP's Nov. 7 permit acceptance. They also learned that the landowner has interest in building on the 4.7 acre parcel on which the Rock Road crosses.

No project applications have been received by the town, said Town Planning and Development Director Orion Thomas.

But, he added: "He does have interest in doing something at some point, if it is financially feasible for him. What that is and when that is, I do not know."

Board member Kim Graffam asked Thomas if options existed to help with the property's drainage without having to remove the road.

"Yes, there are," said Thomas. "The owner has asked if they could put in a culvert, so they have toyed with that idea. They have decided in the end that they wanted to remove the road. That is their option. I have discussed at length with the landowner with potentially putting in a culvert to make that drainage better but they opted to remove it. They could change their mind at the last minute  but that is the course of action they are pursuing."

Rockport resident Wendy Zwecker encouraged the town to research who owns the Rock Road.

"Why wouldn't you want to know if you own the road, or not," she asked. "Why wouldn't you want to do an appeal just to understand who owns this road?"

Board Chair Denise Munger said: "It has been unclear, over the years, despite best efforts to sort this out."

Zwecker responded: But I would want to do the research.... I think it is in everyone's best interest to understand that ownership, because what if you find out that the Town of Rockport does own it and it is taken away?"

Munger referenced land ownership and muddy deeds.

"Sometimes, in land ownership questions, especially with muddy deeds, there is not always a black and white answer," she said.

Zwecker, a real estate agent, said she regularly reviews deeds.

She encouraged the town to, "pause, breath, and see who does own the road."

Following that meeting, Price and Florimbi said they would appeal approval of the municipal permit.

Rockport's Nov. 12 permit approval was issued for an earth-moving project: "Removal of an old railroad/road bed. Returning the landscape back to its natural form. Erosion control measures must be in place before any work starts."

The municipal appeal, when filed, will proceed to the Rockport Zoning Board of Appeals, per town ordinance. Submissions of appeals must be made within 30 days of the permit issuance. 

"In all cases, a person aggrieved by a decision of the Code Enforcement Officer or the Planning Board, except for a Planning Board decision pertaining to subdivisions, shall commence his or her appeal to the Board of Appeals with thirty (30) days after the decision of the Code Enforcement Officer or the Planning Board," the Rockport Land Use Ordinance states (page 7-4).

The Rockport ZBA meets on the fourth Wednesday of the month, according to the town.

At the Dec. 8 Select Board meeting, and after a 90-minute discussion, Munger said the town would have to determine it ever did anything with the $5,000 that had been designated in 1999 to study the Rock Road title.

"We have heard some concerns and will do some investigation on our end," said Munger.

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