2015-11-13 / Community

Town considers daily fines for developer

By Duke Harrington Staff Writer

KENNEBUNKPORT — A local developer known for several high-profile projects is in hot water with selectmen, who may begin assessing daily fines for violations.

On Sept. 8, Tim Harrington signed a consent agreement with selectmen on behalf of Fishing Pole Lane LLC, a 60-acre site that includes 36 luxury cottages at 354 Goose Rocks Road better known as the Hidden Pond Resort.

As part of that agreement, Harrington agreed to pay a $22,100 fine to the town for a host of violations at the property. He also agreed to file for “after-the-fact” approval by Nov. 14 for all 17 structures erected without a building permit, to discontinue activity at two buildings put to uses other than those originally approved by the town, and to tear down by Nov. 15 items that could not be approved. That meant a 50-by-20-foot patio appended to an “event barn” without town knowledge or consent would have to go because it violated setback rules, encroaching on a nearby property line.

According to Town Planner Werner Gilliam, as of Monday all issues had either been corrected or were in the process of correction by virtue of a Sept. 29 application to the planning board, intended to make its approved on paper for the resort match what is actually happening on the ground.

The one remaining issue, Gilliam said, is the patio. That’s because, since signing the Sept. 9 agreement, Harrington has hit upon a solution not conceived at the time – a property swap with the abutting landowner that makes the patio legal by moving the property line.

That abutting landowner is the Kennebunkport Conservation Trust and its executive director, Tom Bradbury, said Monday the swap has already been completed. It was, he said, an easy deal to sell to his board of directors.

“The piece that we’re getting is twice the amount of land in a better position than what we’re giving up,” he said.

Both lots are less than an acre in size, Bradbury said.

However, while that would seem to solve the issue of the patio, selectmen were adamant at their Oct. 22 meeting that the Nov. 15 deadline should remain in force. An agenda item was scheduled for the board’s Nov. 12 session to amend the consent agreement with Harrington, allowing the deck to stay now that the property line is no longer an issue, but to assess a fine of $100 per day of violation until Harrington wins approval from the planning board of his new site plan.

According to Gilliam, a best-case scenario would see the planning board reaching a final vote by mid-December at the soonest, meaning the potential for at least $3,000 in new fines.

Thursday’s meeting of the board of selectmen took place after the deadline for this week’s Post. However, based on debate at the board’s Oct. 22 meeting, it seems likely the fine will be levied. At that session, only Selectman Stuart Barwise was against charging Harrington more than he has paid already.

“One of the issues that we have as a town is that our processes are multiple-week processes, and don’t allow people to immediately respond,” he said. “They’ve come up with a plan and made an effort to correct these things. I think they’ve demonstrated good faith. If we can find a way, we should allow them a measure of time to execute this before we become penalty driven.”

“Except they are in violation,” said Chairman Sheila Matthews-Bull.

“Multiple, multiple violations,” Selectman Ed Hutchins agreed.

“We know as a board, you don’t go ahead and build something without planning board approval. It is a big deal,” Matthews Bull said. “We have to uphold the laws of our town. If we allow people to do things, and then slap their hands and say, well, OK.”

“Yeah, but they paid a $22,000 fine – the largest fine that’s ever been heard of,” Barwise said.

However, Matthews-Bull suggested that, even at that, selectmen had applied kid gloves when dealing with Harrington in the initial consent agreement.

“If we used everything they did that they didn’t have the OK from the planning board for, it would have been up around $80,000. So they did well,” she said.

“Don’t say that,” Barwise retorted. “Nobody who pays a $22,000 fine gets off easy.”

“Except their income was well beyond that for using items that were not OK’d to use,” Matthews-Bull countered, saying not assessing the fine would create a precedent in town, encour- aging others to do what they want and seek permission later.

Meanwhile, Hutchins said even at $3,000, Harrington was dodging a bullet, considering the presumed cost to tear out the patio.

“We have to have a standard,” he said. “We have ordinances and we have a responsibility to uphold them. I don’t see that we are doing our job if we do anything other than follow the letter of this agreement.”

“I don’t have the votes, so I’ll defer,” Barwise said.

Harrington also heads Atlantic Holdings LLC and the Kennebunkport Resort Collection, which owns the Tides Beach Club, the Kennebunkport Inn, the Cottages at Cabot Cove, the Grand Hotel, the Boathouse Waterfront Hotel, the Cape Arundel Inn and Resort, the Lodge on the Cove and David’s KPT.

Harrington, who reportedly splits his time between Kennebunkport and Miami, also owns the Five Points Shopping Center in Biddeford and is behind a proposed $50 million redevelopment of the city’s old Lincoln Mill into a hotel and apartment complex.

Attempts to reach Harrington before the Post’s deadline were unsuccessful.

But the Hidden Pond site, built between 2008 and 2011, has been the site of numerous violations, with several aspects built without permits or planning board approval, or in direct contradiction to approvals that were granted.

Among the violations cited in an Aug. 24 draft memo to selectmen by Town Planner Werner Gilliam, were:

 Construction of a 10-by-16-foot maintenance building and a 10-square-foot canopy for gold cart storage on area reserved on the original site plan as undeveloped open space,

 Failure to build at least one of 16 “Phase 1” cottages to standards of the Americans with Disabilities Act, per the original July 2008 planning board approval,

 Use of an event barn for more frequent and larger functions that was approved by the planning board, and of an outdoor area advertised for groups as large as 200 people without a tent permit,

 Construction of an 896-square-foot spa building that was only approved to be 660-square-feet,

 Reported rental of the event barn for corporate functions even though the November 2010 approval says the building would be used “only by cottage residents.”

 Reported use of the event barn for groups as large as 150 people, although the building’s septic system was only designed to accommodate 30 seats,

 Construction of a full kitchen in the event barn even though the site plan only shows a “prep area,”

 Construction of a 10-by-26-foot lean-to and enclosure of an open porch without permits,

 Conversion without permits of a maintenance building and gym into a retail store and commercial kitchen, with “numerous code violations,” including a stove with an “inadequate hood system,” installed even after resort managers had been told by town officials to remove a hotplate and fryolator,

 Construction of a large deck with “numerous code deficiencies” next to a fire pond, without planning board approval or building permits,

 Seating for 82 guests in an onsite restaurant only approved for 60 seats,

“I definitely wouldn’t say this has been just another day at the office. Since I’ve been here, I haven’t dealt with list this long on one property,” said Gilliam, who has logged more than a decade at Kennebunkport Town Hall.

“This is certainly not how we expect a business to operate in town. We expect them to follow what’s been approved on their site plan,”

According to Gilliam, most of the violations were not discovered until February, when the septic system at the restaurant failed and the resort’s engineer, Sebago Technics, came forward with a new design.

According to Gilliam, the system had been designed, based on the original seating plan, to move 1,945 gallons per day. However, it was found to be flushing more than 3,000 gallons per day.

“It was being overused, and then the grease traps weren’t being maintained,” Gilliam said. “When there’s a failure of that size, it led us to begin looking at other things that may have been occurring on site. It was one of those things were, when we began pulling on the string, other things began to unravel.”

A replacement system was permitted by the code office, he said.

The Hidden Pond Resort is somewhat unique in that it was initially permitted under rules governing mobile home parks. However, the cottages, being modular homes built off site but set with a crane, rather than being carted onto the property, led the site to become permitted instead under ordinances governing hotels.

“The performance standards that we have for hotels allow this type of constriction, where you can do individual cottages,” Gilliam said. “The standards don’t require it to be in what you might typically think of as one large building.”

The planning board has scheduled a site walk of the Hidden Pond resort at 9 a.m. on Nov. 21. A public hearing on the application will be scheduled at a late date.

Return to top