2015-11-27 / Front Page

Parking denial on tap for business

By Duke Harrington Staff Writer

Following two marathon meetings lasting more than five hours each, Kennebunk’s Zoning Board of Appeals is expected to deny an appeal filed by the owner of Federal Jack’s over parking at an abutting property.

The ZBA is scheduled to meet at 5 p.m. on Monday, Nov. 30, to formally vote on its findings of fact and conclusions of law on the case. A draft of that document shows the board set to limit parking at 2 and 4 Doane’s Wharf to residents of the property, renters of 16 adjacent boat slips on the Kennebunk River and tradesmen servicing docked vessels.

More importantly to nearby residents who sat through hours of testimony, the decision will deny any parking for customers of Federal Jack’s or other local businesses.

“Basically, what that means is this is going to Superior Court,” said one Lower Village resident at the second, Nov. 2 hearing, who asked not to be identified.

Issues on Doane’s Wharf, a dirt road located at the edge of the Lower Village commercial district, began this past summer. On June 15, BR2 LLC – reportedly a holding company for Fred Forsley, owner of the Shipyard Shops row of stores that culminates in Federal Jack’s restaurant – purchased the property at 2 and 4 Doane’s Wharf. The site is often referred to by longstanding locals as Reid’s Boat Yard.

The lots include a private home and marina on the Kennebunk River. Since the property transfer, a gate between the site and Federal Jack’s has been opened and Forsley’s crew allegedly used the residential and marina lots to hold overflow from Federal Jack’s valet parking. Following complaints from neighbors, Kennebunk’s code enforcement officer issued a notice of violation on July 28.

Part of the delay in initial response time, town officials said, was due to the town’s difficulty in proving cars parked on the property belonged to patrons of the nearby restaurants, and not renters of the marina slips, and their guests.

Forsley appealed and a hearing was scheduled for Sept. 22. However, that meeting was canceled and a new decision issued.

According to Chris Osterrieder, Kennebunk’s director of community development, planning and codes, the home at the site is allowed two parking spaces, while a limit of 28 spots were thought to be the allowance for the marina. However, recent evidence caused Osterrieder to doubt the 28-vehicle limit.

“The Community Development Office, upon conducting research and discovery of archived information, determined that the subject property was part of a joint review of a dredging project and reallocation of dock slips back in 1988,” he wrote via email, in response to an inquiry from The Post. “There was a building permit that was granted as part of that, which was appealed and then upheld by the Zoning Board of Appeals. It limited the number of slips on the property to 16 and the only use of the property was to be as a single-family home, with the dock slips. It was not even deemed a marina.

“Once this information was found, the original notice of violation was rescinded and the code officer issued a new letter on Sept. 15,” Osterrieder wrote.

The new letter was actually a “Notice of Decision,” by the town – a formal denial of a letter submitted by BR2, in which Forsley’s agent described marina-related uses he wanted to conduct on the property. According to Forsley’s attorney, John Richardson, of the Brunswick firm Moncure & Barnicle, Forsley had contracted with Chris DiMillo, whose family operates the DiMillo Marina in Portland, to revitalize the old Reid Marina. It appears that now, without some proven grandfathered use of the site as a marina subsequent to the 1988 slip allocation, the property may not be allowed additional boats, let alone cars.

The Nov. 30 draft decision sets the number of parking spots at the Doane’s Wharf site to 22 – 16 for boat slip owners, and two each for marina employees, servicing tradesmen and property residents.

Much of the debate at the Nov. 2 hearing centered on Forsley’s contention that he had been assured by town officials that customer parking at the Doane’s Wharf property would be allowed as an assessor use to the Federal Jack’s site, despite the two abutting properties being in two different zones, commercial and residential.

Much time also was spent debating the definition of “marina,” given that no defi- nition existed at the time of the 1998 ZBA decision.

That puts the fate of any marina redevelopment by DiMillo in doubt. While the draft decision does say the town must accept the slips as a marina because it was taxed and referred to them as such since 1998, it also notes that the historic use of the site falls within the “current defi- nition” of a marina in the town ordinances. A marina is allowed in the residential zone in which the old Reid Boat Yard slips sit as a “grandfathered” use, but any allowance not taken advantage of for three years is presumed to have lapsed, the document says. That could be interpreted to mean the site can only be used to dock boats, and not for any other marina use allowed in the town ordinances, such as commercial sale of boating fuel and supplies.

At the Nov. 2 meeting, the three ZBA members in attendance split on many votes, with Jens-Peter Bergen most often supporting Forsley position, while Stephen Passerman and Chairman William MacDonald more commonly sided with code enforcement officer Paul Demers. That would seem to portend a similar vote at the Nov. 30 session.

Neither Forsley nor Richardson could be reached for comment.

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