Downeast Coastal Press
April 17, 2007
Norman Hunt Finds Himself Fighting for Much More
than Lubec Retirement Home
By Fred Hastings
Coinciding with the passage of the rule for new “bird habitat” overlays requiring a 250 foot setback (LD 1981) last year was Newcastle resident Norman Hunt's search for shorefront property Down East. Hunt and his wife, Judy, planned to build a retirement home after an active life of raising their children on their multigeneration family farm, operating a lumberyard and other pursuits. At last week's legislative hearing on the shorebird habitat regulation, Hunt, 64, offered extended testimony [audio segement 33] that described the effect the new law has had on him and the owners of the property he has been trying to buy.
Hunt said his search, begun in April 2006, was successful. Within two weeks he made an offer and signed a contract to purchase property on Lubec's residentially developed South Lubec Road overlooking Lubec Channel, with a closing planned for July contingent on approvals for whatever soils tests and building permits were required. The land has been owned by the Rose family for more than 50 years.
Hunt immediately started the permitting process, saying Lubec's code enforcement officer (CEO) told him he “could build today.”
He next met with the DEP's Jim Beyer, who, based on his experience at the time, Hunt described as “a great guy,” “very cooperative.” Beyer, the regional enforcement supervisor in Bangor, told him that he “didn't see any problem” with securing DEP permits for the site, maybe only “a wetlands issue” to resolve, which is why he had been asked to look.
Hunt paid his site engineer to survey the property and prepare the DEP application. He planned a modest new home that met both DEP requirements for wetlands and the 75–foot shore–land zoning setback. There is no standing water, but the wooded land is technically classified as “wetlands.”
Suddenly, the Process Takes a Turn
On July 8, 10 days before the scheduled closing on the property, Hunt and his engineer met with Beyer at his Bangor office. Beyer “was red–faced,” said Hunt, and then told him, “I forgot to tell you. There is a 250–foot setback.”
“It was devastating,” said Hunt. Not only was the DEP's Beyer apparently just learning of the new LD 1981 law, but a check with the Lubec CEO indicated he had not been informed of it either, a bill that took effect a month earlier on June 8.
Hunt said that soon after that he had a discussion with Rep. Thom Watson (D–Bath), co–chairman of the Inland Fisheries and Wildlife Committee in the 122nd Legislature, who told him he had no knowledge of LD 1981 affecting coastal regulations.
On July 27, DEP sent a letter to Hunt's engineer, informing him that there could be no development within 250 feet of the shore, which would require the home to be both in “wetlands” and behind the trees in the woods with no view of the shore.
With that letter, said Hunt, the property was devalued by $100,000 in his estimate, a devastating loss not to him, because he didn't yet hold title, but to the owners who were selling the property to help pay for medical and other bills.
“I almost gave up at this point,” said Hunt, “but I was ticked off. I was determined to pursue it.” The issue now went far beyond just trying to build a shorefront retirement home for himself and his wife, he said. “I was no longer fighting just for me.”
DEP and IF&W agents were again brought to the property to determine a building location, to see if they were going to deny all use of the property. They began walking through the woods toward the shore, 550 feet from the road, and Hunt told them to stop when they saw a suitable building location. They got to high ground 75 feet from the shore before finding a suitable location. They told him that since it was the only location, he should submit an application and they expected it to be approved, but they weren't sure if he would be allowed to mow the grass around the house. Later Beyer told Hunt verbally that he could cut the grass while waiting for the application to be processed, but balked when asked to put the permission in writing to absolve the current owner from liability.
In November of last year, Hunt spent thousands more dollars preparing a 40–page environmental assessment/application seeking a permit that would allow him to build a 1,152–square–foot traditional shingled Cape–style home and two–car garage in the area that DEP had designated near an old foundation where a home and large clearing had once been.
In January, DEP notified him of what IF&W, whose opinion DEP is not required to follow, would allow him to do and not do on the property. Prohibitions [pdf] included a limitation on the size of all cleared areas within the entire 250–foot shore–land zone to less than an acre, not removing any vegetation or mowing the “native” grass or bushes less than 5 feet high within the 75–foot upland from the shore, and a strong recommendation to limit use of the beach during the summer months. It also included a stipulation that the home could not be built within the summer months and would have to be 150 feet from the shore, putting it in a “wetland” that DEP had previously prohibited using.
The additional 150–foot setback was despite the fact that DEP Commissioner David Littell heavily promoted, in a statewide press campaign beginning February 5, a revised policy assuring that 75–foot setbacks would be adequate in such designated bird “feeding” regions.
“We asked many times to meet with the DEP people who developed these rules,” said Hunt, “but the DEP refused to meet with me and my agent.”
DEP canceled one February 12 appointment at which someone with decision–making authority was supposed to have attended.
Hunt says he especially wanted to question the prohibition on mowing the grass and whether there would be further “mitigation” for building in the “wetland” insisted on by DEP. Hunt, in his testimony, said that he is especially concerned with the intrusion of the state taking complete control of the shorefront land through the device of control over all vegetation.
At a public meeting in Lubec last August 31, Beyer had said that the DEP had five months to either approve or deny a permit, indicating that if a decision was not made by then the permit was legally no longer required.
“The drop–dead end time is five months,” said Beyer. “After five months we start sending money back, and we don't like doing that.”
In practice, Beyer said, “If you're coming up on a deadline, and there's still unresolved issues, then one of two things is going to happen. ... The person working on the application is either going to ask you to put it on what's called 'hold,' or to withdraw it and come back with a new plan. But typically that's not going to be the case; we're not going to drag these things out forever. The answer is either going to be, 'you do this,' or 'you don't do this.'”
Political Maneuverings Enter the Picture
By March of this year, DEP had held up issuing a permit for five months for a basic home the agencies were already familiar with and had verbally indicated would be approved, but which was now politically highly visible, coinciding as it was with the public outcry over LD 1981 and growing political maneuverings of supporters to defeat the challenge to the controversial new regulations.
Hunt's site engineer was told verbally by DEP that Hunt's time was up and he must either agree to accept the restrictive conditions that would be in a permit or withdraw his application, and that there were no other possibilities.
Hunt, in an interview following his testimony, said he would not agree in advance to accept all the highly unusual conditions restricting ordinary use of residential private property, but could not voluntarily withdraw either. Since IF&W refused to discuss its recommended restrictions imposed by DEP, Hunt wanted to see what would happen with Sen. Kevin Raye's current reform legislation addressing the new setback rule as the only hope he had left.
Forced to “withdraw” by the DEP, which refused to put the application on “hold” contrary to earlier statements from Beyer, Hunt also lost the possibility of any appeal to the Board of Environmental Protection (BEP) within 30 days of a formal DEP decision.
Hunt's engineer asked the DEP if there was a way to table the application until IF&W would meet to discuss the onerous restrictions or the Legislature completed its review of the new setback rule, a request that DEP denied.
Since Hunt would not sanction the restrictive conditions, his engineer e–mailed the DEP saying to “withdraw” it as the only option he was permitted.
After having spent a significant amount of money and much time and resources on site engineering plans and the application process dating back to June of last year, Hunt was told by the DEP that they would return $50 of his $200 filing fee because they were returning his application.
The DEP subsequently publicized the application as “withdrawn,” with no explanation, sending copies of the letter confirming the “withdrawal” to activists who had objected to his building his home.
At last week's hearing, after Hunt had given his testimony, DEP Commissioner David Littell repeated his claim that Hunt had “withdrawn” his application, also with no explanation of what his agency had done. Littell also testified before the legislators that DEP has been “expediting” applications.
Copyright © 2007 Downeast Coastal Press, All Rights Reserved. Posted by permission.
More on the “habitat” land control agenda for Maine: www.moosecove.com/propertyrights/index.shtml#habitat