2016-02-12 / Front Page

Kennebunkport OKs Hidden Pond changes

By Wm. Duke Harrington Staff Writer

KENNEBUNKPORT — A luxury resort that was fined more than $30,000 for allegedly willful violations of the conditions under which it was approved has been re-approved by the planning board under a new site plan application.

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. The location, part of Harrington’s Kennebunkport Resort Collective that also includes the Kennebunkport Inn and the Cape Arundel Inn, among others, is 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 for 17 structures erected at the resort without a building permit, and to discontinue activity at two buildings put to uses other than those originally approved by the planning board, and to tear down those buildings that could not be approved.

That meant demolishing a 50-by-20-foot patio appended to an “event barn” without town knowledge or consent, because it violated setback rules from a nearby property line. After signing the agreement, Harrington reached a deal for a property swap with the abutting landowner, the Kennebunkport Conservation Trust, which essentially moved the property line back such that the patio met the setback. In return for the exchange, which involved less than an acre on either side, the land trust got a slightly larger parcel than the one it gave up, one which, according to trust director Tom Bradbury, was in a “better position” for its purposes.

However, Harrington ended up paying a fine of $100 per day until the planning board approved the deal, fees that tallied for more than a month.

According to Town Planner Werner Gilliam, by November all issues at Hidden Pond had either been corrected or were in the process of correction by virtue of a new application to the planning board. That document, approved 4-1 by the planning board at its Feb. 3 meeting, was intended to make what is approved on paper for the resort match what is actually happening on the ground.

However, the board did take the opportunity to take up the cause of resort neighbors, voiced at a December public hearing, who seemed more concerned about noise than septic or building violations.

The board still needs to draft and adopt findings of fact backing the decision, but in principle agreed to cut 18 outdoor seats from Earth Restaurant’s request for 138 – still a net increase as it was originally only approved for 60 seats. It also limited functions at the event barn to no more than 24 during the resort’s operating season, with no more than four to include outdoor tents to augment the barn’s 80-person capacity.

During the planning board meeting, officials from Hidden Pond were contrite about the previous violations.

“I want to just convey to the board and to our neighbors that we took their comments seriously, and that we are going to present a serious attempt to address those concerns,” said Bill Bamford, chief operating officer at Kennebunkport Resort Collective.

“We’re committed to making the investment and operational changes that will show that we are committed as a company and corporate citizen in the town of Kennebunkport to being an excellent neighbor,” he said.

“I have to admit that sitting through the past couple of meetings was painful, not only to me but to the management team at Hidden Pond, but it was necessary,” said company attorney Ralph Austin. “It was necessary to hear the concerns that the town has. It was necessary to hear the concerns that the neighbors had. It was necessary to understand how serious these issues are.

“I also know and understand there is a lack of trust on the part of the town and the [planning] board as to whether the commitment is really there on the part of Hidden Pond to see these changes through,” Austin said. “It is our hope that this proposal we have submitted can start the process of regaining that trust – and these are not empty words. I really mean it when I say we understand that trust has to be earned.”

Still not everyone was willing to accept a mea culpa from the Hidden Pond executives.

“Why would we support anything?” planning board member John Hathaway asked, rhetorically. “To me it is a matter of trust. Good speech about being a good corporate citizen, but I don’t know why we would expect you to start now when in the past you haven’t shown that.”

“To have our decisions thrown out because you don’t feel like it, that’s a tough pill,” agreed board member Gregory Reid.

“You say you are attracting more people to Kennebunkport, which is great, but I’ll let you in on a secret, which is, that’s not what all of the people in town are looking for. People who invest in their homes, they’re looking for some peace and quiet to enjoy their home,” said Hathaway, the only board member to vote against the new application.

“It’s hard to get past the emotion and disappointment we’ve all talked about,” board chairman David Kling said. “However, our job is to determine objectively whether this proposal meets the terms of the land use ordinance, period.

“I’m concerned with all the things the code enforcement officer has to do, if we need an officer for the specific purpose of monitoring Hidden Pond,” King joked. “But my sense is that, with these collective set of suggestions, we are pretty close to an application that meets the land use ordinance, trust issues to the contrary. I think we’ve come a long way toward eliminating many of the nuisances, with conditions that are measurable, clear and enforceable, and have consequences if they are violated.”

Among other things, the board also agreed to continue well testing on the property twice per year, for a term Kling described as, “in perpetuity, or at least a long time.”

Hidden Pond, built between 2008 and 2011, has been the site of numerous violations, to go along with the industry accolades it has earned.

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

 Construction of a 10-by-16-foot maintenance building and a 10-foot square 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 than 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 a 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 2015, when the septic system at Earth 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 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 and 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 construction, 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.”

Staff Writer Wm. Duke Harrington can be reached at news@kennebunkpost.com.

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