ROCKPORT — The quasi-judicial Rockport Zoning Board of Appeals will consider Nov. 17 a citizens’ objection to the approval granted last spring by the Planning Board for hotel construction in Rockport Village. 

Thirteen residents, represented by Attorney Kristin Collins, of the Portland-based Preti Flaherty, filed their appeal last summer, saying the Rockport Planning Board made errors of law, abused its discretion and made findings not supported by substantial evidence in the record.

David Barry, Lisa Breheny, Katie Grealish, David Kantor, Michael Hampton, George and Eliza Haselton, John Priestley, Kimberly and Rex Rehmeyer, Mark Schwarzmann, Craig Sweeny, and Winston Whitney are asking the town’s ZBA to overturn the Planning Board’s May site plan approval.

However, the attorney for 20 Central LLC, whose principals are Stuart and Maryann Smith, and Tyler Smith, submitted an Oct. 23 memo to the town, asking the ZBA to deny the appeal.

Mark Coursey, an attorney at Camden Law, wrote in his memo an encouragement for the ZBA members, all volunteers who live in Rockport, to watch the video recordings of the Planning Board deliberations.

In his memo, Coursey argued against the claim made by the appellants that they have legal standing to appeal.

“The Appellants main claim to having the standing necessary to make this appeal is not that their property will be directly affected by this project, but rather that there is the potential that they will be bothered personally when they visit downtown by increased traffic, less parking and impaired scenic views,” he wrote. “They offer no evidence to prove this assertion.”

He said if that were the standard for establishing standing, “anyone from anywhere could appeal a Planning Board decision, just based on the fact that they occasionally visit the area near an approved project and feel somehow put upon by this change.”

Coursey called it, “drive by” standing, and cited a 2009 decision regarding a civil court case Nergaard vs. Town of Westport. 

He argued that the only appellant to have standing is David Barry, who, “owns property that can be constructed to abut the proposed hotel site and it is across Central Street consisting of a steeply sloped lot with the residence located above on Church Street.”

But, he added, it is not enough to make a claim that, “one will be vexed by the perception of more traffic or difficulty parking when away from one’s property.”

That issue of standing, said Coursey, is enough for the ZBA to dismiss the appeal.

He also asserted that the appeal itself was filed under an incorrect standard of review, and should be whether the planning board’s decision was made within the board’s scope of authority, not whether the board made errors of law, abused its discretion and made findings not supported by substantial evident in the record.

Given that reasoning, he said, there is substantial evidence in the record supporting the board’d decisions.

And, he said, there were four “substantive hearings regarding the applicant’s site plan and the ZBA conducted its own hearing where the valet parking and many other issues were heard.”

He added that the ZBA is not required to agree with the Planning Board’s approval, and whether there is enough evidence to support it.

“Even if the ZBA disagrees with the outcome, it must vote to deny this appeal if the said requests have been satisfied.”

As for the alleged bias of the Planning Board chair and vice chair, Coursey said that the attorneys for the Planning Board Chair and Vice Chair will address that issue at the hearing.

The town’s Planning Board attorney is Phil Saucier, of the Portland-based Bernstein Shur, while Leah Rachin, of the Portland-based firm Drummond Woodsum, is representing the Rockport Zoning Board of Appeals

He added that there is no evidence offered that indicates favoritism or bias, and that the ZBA is not tasked for reviewing bias based on the standard of review that he said should be employed.

Concerning parking requirements, Coursey said the Planning Board’s finding of enough parking spaces (21 behind the building and 35 at Hoboken, to be served by valets, was upheld by the ZBA in January.

Architectural review of the hotel included subsequent changes, said Coursey, and the scenic view dispute is not “of the type” that needs addressing, given that the space, “has been of changing character throughout Rockport’s existence.”

“The Planning Board heard from the applicant and the public’s concerns regarding the possible increase in traffic caused by the hotel and found that if there were traffic enforcement issues that would be within the purview of the police department,” Coursey wrote.

He continued: “The Planning Board listened to requests from members of the public to require a traffic study. The Planning Board determined that they would not require such a study, which was in their authority under the Land Use Ordinance.”

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