BRUNSWICK — A clear cut of trees and vegetation on about 625 feet of shoreline on Middle Bay has Brunswick residents and neighbors accusing town staff of a lapse in its oversight responsibilities.
The issue came to a head at a packed Town Council meeting Monday night, March 7, where several residents and one councilor delivered pointed attacks detailing what they believed to be a botched public process.
The night ended with the council voting to put a moratorium on all similar projects for 90 days until they could bring local ordinances into compliance with state law.
The development in question is a shore stabilization project on a property on Miller Point, just west of Simpsons Point in Middle Bay. The land is owned by Robert and Nancy King of Short Hills, New Jersey.
The Kings own about 185 acres on Miller Point. Approximately 125 acres of that are locked up in a conservation easement; the family has reserved the right to develop dwellings on the remaining acreage, according to the town planning department.
Much of the shoreline along the point, however, is bluff that is rapidly eroding into the ocean. To stabilize it, the Kings began planning a project to remove upwards of 60,000 cubic feet of earth, re-contour the slope, and then install fabric and “rip rap,” or large boulders, below the soil.
According to Joe LeBlanc, the Kings’ permitting agent, the Kings made sure the town had “input throughout the process.”
The Kings approached the town about the project with an initial meeting in May of 2014, according to John Floyd, the Kings’ attorney. Multiple planning department staff members were in attendance.
A year later, in March 2015, the Kings again approached the town to formally present the project. At that meeting, the code enforcement officer stated that the town had “no permitting role in the stabilization and site work for the project,” according to Floyd.
Shortly after that decision, the Kings applied for a Natural Resources Protection Act Permit from the state Department of Environmental Protection. They received a permit from DEP in June 2015, and a permit from the U.S. Army Corps of Engineers Feb. 1 of this year.
Project work began soon after.
But neighbors were quickly unsettled when they saw the level of clearing happening on Miller Point.
Richard Knox, of Simpson’s Point Road, said he first became aware of the project while out skiing on the King property – which he and a few other neighbors had permission to do – in January.
It was then he saw, and took a video of, “thousands of tons” of rip rap boulders lined up, waiting to be put into the earth.
“I then went to a meeting (Robert King) had with the neighbors,” Knox said. “What I learned at that meeting was that there didn’t appear to be any local permits for (the shoreline stabilization) project.”
Knox was frustrated by what appeared to him as a lack of local oversight.
“The town is supposed to have a lot of control over what happens in its coastal protection zone,” he said in an interview. “What was missed here?”
Knox hired Gordon Smith, an attorney at Verrill Dana, to review local ordinances and see if there was any merit to his belief that the project should have gone through a local review process.
“It is the citizens of Brunswick who will be most affected by this project and I am incredulous that the town and the landowner’s contractor did not go through a … permitting process at the local level,” Knox wrote in an email to Town Manager John Eldridge last week. “It does not pass the straight face test.”
Smith agreed with Knox.
On Feb. 22, Smith submitted a letter to Eldridge alleging that the “construction … is currently underway without the necessary Town review and approval.”
He argued that the project should have triggered local permit requirements because it was in the Coastal Protection Zone, Natural Resource Protection Zone, and flood hazard area.
The Kings’ attorney, John Floyd, quickly fired back with a letter two days later, denying Knox and Smith’s claims and arguing that the lack of local permitting was consistent with town precedent.
Eldridge passed the two letters on to Town Attorney Stephen Langsdorf for review. Langsdorf asked the Kings to voluntarily suspend the project while the issues were being resolved, but they declined, he wrote in a March 2 memo.
After two weeks, Langsdorf found truth in both claims.
First, Langsdorf asserted that there had been 10 similar erosion stabilization projects in Brunswick since 1998, and that staff have never required a local permit or planning board approval.
But he also discovered that the local zoning ordinance was incomplete.
By law, the town’s Shoreland Zoning Ordinance must be consistent with state environmental protections. Langsdorf found that a state table, titled “Land Uses in the Shoreland Zone,” had never been included in the Brunswick ordinance.
The missing table requires any project that entails moving 10 or more cubic yards of soil to secure a permit from the Planning Board.
Nearly 80 times the maximum amount allowed will be removed from the King site, permitting documents show.
“If (that table) were included,” Langsdorf told councilors on Monday, the Kings’ project “would have required planning department review.”
In the town’s defense, he added, DEP had approved Brunswick’s zoning ordinance five separate times from 1994 to 2009 without ever noticing the missing table.
Langsdorf also found that the town was wrong to not require a floodplain permit; a portion of the project was, in fact, within the floodplain zone, according to geologist Peter Slovinsky of the Maine Geological Survey.
The Kings suspended work and applied for a floodplain permit on Feb. 29.
Langsdorf recommended that the council put an emergency moratorium on all projects that could be affected by the missing regulations until they could incorporate them into local ordinances.
But, he added, “the owners of the property did what they were expected to do.” He said the Kings should be able to continue work after securing a floodplain permit.
Councilors, however, were split on how to take their counsel’s recommendation.
Multiple residents had spoken that night against the project and its treatment by town staff.
“I think this project represents a flawed policy and sets a bad precedent,” said Henry Heyburn, of Pennellville Road. “I feel it’s important I can trust town officials.”
Knox took the podium multiple times, asking councilors to “consider citizen interest, even after the staff has not.”
Rob Manter, who owns Maine Pines Racquet & Fitness on Harpswell Road, said that as an avid paddleboarder, he believes “Middle Bay is one of the most beautiful places in the world.”
He told councilors to better vet the project, because “I want to feel like I’m paddling on the coast of Maine, not the coast of New Jersey.”
Residents had an ally in Councilor Steve Walker, who told Langsdorf he did not agree with the assessment that staff was correctly interpreting town ordinance in not issuing site permits.
“It’s not satisfying to me that we’re just going to let this one go,” he said. “I’m not prepared to accept Mr. Langsdorf’s letter as case closed.”
Walker made a motion to add language to the moratorium Langsdorf drafted that would also stop development at the Kings’ property. But that motion failed.
Other councilors were more sympathetic of the Kings’ situation.
“They’ve gone by the books – the problem was, the book wasn’t right,” said Councilor Kathy Wilson.
Councilors eventually passed the 90-day moratorium on similar projects.
After the meeting, Walker said he was not done trying to stall development at the King site until it could go through planning department review.
He said to expect an agenda item at the next council meeting.
Updated March 10: Knox had permission to ski on the King property in January.
A swath about 625 feet wide that was clear cut for an erosion stabilization project on Miller Point has upset many neighbors and residents. The project has kick-started a legal process that revealed deficiencies in town ordinances.
The Kings’ erosion stabilization project will involve removing at least 60,000 cubic feet of earth and installing “rip rap” boulders underneath.