Nonconforming is not a dirty word; the Graces of NEH think otherwise

Photo of the Grace’s house at 10 Barnacles Way, Northeast Harbor, and visible new house under construction next door.

SOMESVILLE, Jan. 9, 2021 – Think twice before inviting Bill and Marjorie Grace and Heather Evans for drinks on the porch next summer at the same time.

It’s not because of their geographical distancing. They live next to each other. Or more precisely, they own summer homes next to each other.

It’s not because of social standing. They are Northeast Harbor semi-royalty.

It’s because the neighbors are engaged in a mano a mano zoning dispute that has lawyers, town boards and various arbiters thrust into an imbroglio which could well last into the rest of 2021 and beyond.

And this show is coming live to a Zoom screen near you Wednesday Jan. 13 at 6 p.m., as it is the second item on the Mount Desert planning board’s agenda. 

Meeting ID: 828 5043 1734  Password: 016906

Cheek by jowl. Owner wants to demolish house at right which is ‘non-conforming

It’s not the longest ongoing zoning fight in the town of Mount Desert. That distinction would belong to Hall Quarry, where residents have held up an application to restart a quarry business for more than six years.

This case is a familiar tussle between people of means against the realities of a small town, which couldn’t even muster enough zoning appeals board members to hear the Graces’ case for three months. And what did the appeals board do when it finally got a quorum in late November? It kicked it back to the planning board which had already approved the application for the new building. The application is 7-month-old and counting.

The owners of 9 Barnacles Way in Northeast Harbor acquired the lot and then proceeded to build two houses designed by Matthew Baird, an architect of some renown with a minimalist sensibility and copious use of shingles and wood siding. They first built a house on the water and were in the process of building a second home, when they acquired the house next to the Graces – 11 Barnacles Way – to complete a “family compound” consisting of three stand-alone homes.

Only no one apparently told the Graces, who own the house at 10 Barnacles Way. In June they appeared on Zoom at the planning board to say legal notices of such application for construction did not reach them and that it was their opinion the proposed house next to theirs is out of scope for a “non-conforming” use. It would be too high and encroached on the setback abutting them,

Marjorie Grace then declared she did not care for construction next door during the summer. (Mount Desert does not have a noise ordinance and many summer residents do not understand that the loud screeching noise emanating from your neighbor’s construction of a new addition is not an infringement of local ordinance.) As a side note, the Grace family once owned a swimming camp on Long Pond and became the bete noir of all the residents when they introduced jet skis which were eventually banned.

The Grace’s challenge to 9 Barnacles Way is a test of what passes for acceptable land-use in a century-old warren of pretzel-shaped lots that predate zoning. The operative word is “nonconforming” – a widely misunderstood concept that has many believing that a home which does not conform to current zoning may not be altered, expanded, stirred or shaken.

The problem started at its inception when the Graces did not even acknowledge receipt of information sent to abutters about a significant project next door. After the vapor of that contretemps settled, the serious business of the day took shape. The new owners of the house at 11 Barnacles Way wanted to demolish a “nonconforming” house and replace it with another house but 30 percent larger. Trouble was the Graces at 10 Barnacles Way are about a long putt away, their back step practically serves as a landing for the house next door, which is less than the 75 feet from the water and less than 25 feet away from the Graces. In other words, not in conformance with the current land-use ordinance.

Architect Baird recently sent this to the code enforcement officer, “Attached please find a pdf of the clarified height calculations that we reviewed in the hearing on 6/10.  

The situation was made more complicated because the Graces apparently don’t even know the names of the new neighbors, who have been operating under the legal shingle of the Lapsley Family LLC, which was created by the three Lapsley children in 2013. But Robert Lapsley of Seattle told QSJ they sold the property two years ago to a Heather Evans of Northeast Harbor. In the latest filing, the owners are now identified as Otium LLC, with Mary Costigan of law firm Bernstein Shur in Portland as their representative. Costigan did not return multiple emails and calls from QSJ.

Photo of first of three Barnacles Way homes designed by architect Matthew Baird to create a family compound

QSJ had no luck tracking down Heather Evans. The new owner continued to use the name Lapsley Family LLC in its filings last summer seeking planning board approval.

Meanwhile, David Perkins, the Grace’s lawyer, has been more obliging.

He told QSJ that the planning board erred in June when it approved the Lapsley’s application for expansion without giving consideration that nonconforming changes should be subject to “strict” interpretation of Maine’s “settled case law” that “disfavored” any development which would make a non-conforming situation even more non-conforming. He said the planning board chose a “liberal” interpretation which makes it inconsistent with case law.

QSJ is not a lawyer but several observations are worth noting.

The planning board consists of members who are more schooled at the local land-use ordinance than members of the zoning appeals board. They meet regularly, whereas the appeals board only meets when there is an appeal. The planning board, and members of the selectmen board, are the only town boards which receive a stipend (a maximum of $3,000 a year for planning board members depending on the number of meetings they attend) as to demonstrate the special need and priority of these two important boards. They also have an expert – a code enforcement officer – to assist with their deliberations. Lastly, they conduct site visits for each application.

The zoning board of appeals on the other hand has had trouble fulfilling its duty for most of 2020 and now into 2021. Its chairman, William Ferm, has not returned any of the emails or phone messages left for him since November by QSJ. It does not have professional advice from a code enforcement officer and it does not conduct site visits.

At its last meeting on Nov. 24, members were obviously caught unaware of the complexities of “nonconforming.” It debated height restrictions and setbacks without resolving any of the issues. So it “remanded” the application back to the planning board.

This ping-pong game could go on for some time. The planning board could take its time. When and if it gets back to the appeal board, that could be well into late 2021 given that board’s difficulty getting a quorum. Whatever the decision, the Graces could tie it up with a lawsuit against the town which would soak taxpayers for legal fees.

This is not to say the planning board cannot err. Indeed, the appeals board’s overturning of the planning board’s controversial 2017 rejection of the Hall Quarry application was later supported by Maine’s Superior Court.

While the system may seem to be fair, it is not. The loss of time for the applicant is a real loss. What’s more valuable for the wealthy than time? The Graces may tie it up in the courts for years, thereby ensuring many quiet summers. The Hall Quarry residents have enjoyed seven years of quiet since they began their protest.

Perkins, lawyer for the Graces, contended that owners of the 9 and 11 Barnacles Way have not delivered their promises as represented by their architect, making it hard to settle the grievances privately. The promise of better natural buffers, for instance, have not materialized, he said.

Given the challenges of the zoning board of appeals which add cost, time and stress on citizens and homeowners who only wish to see a better quality of life, it seems an easy solution to fortify the ZBA with the same expertise and stipend as afforded the planning board. The town of Mount Desert can certainly afford it.

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