2015-09-04 / Community

Appeal filed in Lower Village parking dispute

By Duke Harrington Staff Writer

KENNEBUNK — A Lower Village property owner will get his day in court, or quasi court, at least, following his appeal of a parking violation that at least one town official has referred to as “a grenade.”

On July 28, Kennebunk’s code enforcement officer issued a notice of violation to BR2 LLC, reportedly a holding company for Fred Forsley, owner of the Shipyard Shops row of stores that culminates in Federal Jack’s restaurant.

On June 15, BR2 purchased the property at 2 and 4 Doane’s Wharf, still known locally as Reid’s Boat Yard.

The site includes a private home and marina on the Kennebunk River. Since the property transfer, a gate between the property and Federal Jack’s has reportedly been opened and Forsley’s crew has allegedly been using the site to hold overflow for Federal Jack’s valet parking.

That change of use has filled the Kennebunk selectmen’s chamber on at least two occasions with abutters and other Lower Village residents who are upset over increased traffic on Doane’s Wharf, a deadend dirt road.

According to Chris Osterrieder, Kennebunk’s director of community development, planning and codes, the home at the site is allowed two parking spaces.

The property also carries a zoning waiver for an additional 28 spots that can be used by the marina. Those spots are not supposed to be taken up by other commercial uses, prompting the notice to cease and desist.

However, Osterrieder pointed out that, without stationing a town employee at the property 24/7, it cannot verify the 28 spots are being used by renters of the marina slips and their guests, even with the help of neighbors who have eagerly supplied dozens of photographs and eyewitness accounts of site activity.

“There’s no gate, but it’s like a gated community down there,” Osterrieder said in July. “People there are very protective of their neighborhood. With any talk of the parking there, things are bound to get complicated. As far as things go, at this point, I suspect the pin has been pulled out of this grenade.”

By Aug. 21, if that grenade had not been thrown, a gauntlet surely had. On that day, BR2 filed an administrative appeal of the code enforcement notice. A hearing before the Kennebunk Zoning Board of Appeals has been set for 6:30 p.m. Monday, Sept. 21.

“Essentially, the town is in a no-win situation right now,” Osterrieder said at the Aug. 11 selectmen’s meeting. “I don’t think this is going to be easy.”

Helping to complicate the issue, at least in terms of the explosive reaction by neighbors, is that Forsley has reportedly contracted with Chris DiMillo, whose family operates the DiMillo Marina in Portland, to revitalize the old Reid Marina.

How much commercial activity can happen there without triggering a change-in-use from the grandfathered allowances remains an open question, Osterrieder said.

Meanwhile, Kennebunk town attorney William Dale said the issue is further complicated by the fact that the marina and home site, although it abuts the Federal Jack’s property, is in a different zoning district.

“That’s the issue I think is the most troublesome. That’s the 2,000-pound gorilla in this room,” Dale said. “And you can referee this issue no matter how you like, there’s still going to be the larger issue of there’s just not enough parking down there (in Lower Village).”

Because Dale already is committed to speaking on behalf of the code enforcement officer at the Sept. 21 appeal, the town will have to hire a different attorney, preferably with a different law firm, to represent the zoning board of appeals, he said.

Depending on the outcome of that hearing, the issue could easily end up in Superior Court, Dale said. However, he did note that while there is an appeals process for BR2, none exists for abutters if selectmen simply decide not to press the issue.

“If there was an enforcement issue here and the selectmen decided, ‘We’re not going to chase after that,’ that’s not appealable in court,” he said, referring to a Superior Court battle as a “$5,000 cost to chase after a $500 problem.”

However, there’s nothing to prevent Forsley from reaching a private agreement with his residential neighbors. While the zoning board of appeals is bound to gavel a meeting into session in response to the appeal, it could immediately recess at the promise of a negotiated settlement, Dale said.

At the Aug. 11 selectmen’s meeting, Forsley’s attorney, John Richardson, of the Brunswick firm Moncure & Barnicle, intimated a lawsuit is seen as a last resort.

“It’s really not our intention at this time. We’d really like to work out something that’s a win-win,” he said. “We’d like to mitigate the impact to residents of the area and keep a relationship that, as a long-standing property owner in the area, he (Forsley) feels has been cordial.”

“To the extent parties can work something out, that’s generally better for all involved,” Dale said, “because when a judge sits down and decides, there’s going to be a winner and a loser.”

Attempts to reach Forsley were unsuccessful.

Meanwhile, selectmen have chosen to hold their collective tongues, at least until after the Sept. 21 hearing.

“We’re just going to stay out of it at this point and let it run its course,” Chairman Kevin Donovan said.

Return to top