Losing a view

New building planned near historic Homer studio on Prouts Neck.

When the Portland Museum of Art bought the Winslow Homer studio in 2006, with hopes of restoring understanding of the artist’s vision, they could not have imagined that someone would come along and destroy his view.

However, a 30.55-foot-tall, 3,879-square-foot building is slated to go up directly between the studio and the Atlantic Ocean, forever blotting what the artists would have seen as he sat at his easel.

Both the museum and abutters have tried to block construction, citing road frontage issues, septic easements and even actual ownership of the U-shaped vacant lot owned by the Doris F. Homer Revocable Trust, which surrounds the studio on three sides.

According to a Sept. 29, 2010 deed of distribution following her death, Doris Homer’s property passed to the Doris F. Homer Revocable Trust. The listed trustees were her personal representative, Patricia P. Adams, and H. M. Peyson & Co., a Portland investment firm.

A building permit application was filed on the new, two-and-a-half-story building on Nov. 17. An administrative appeal was filed by abutters on Dec. 20.

However, wrangling from attorneys delayed a Zoning Board of Appeals hearing until March. The board itself caused a further delay when it decided it could not act on the matter with one of its five-person roster absent. The hearing finally took place in late May.

Arguing for the abutters, attorney Jeffrey Jones, of Main Street Title Co. of Scarborough, tried to argue that easement restrictions put in place when Doris Homer sold the studio to Charles Willauer in 1980 prevented construction in the manner approved by David Grysk, the town’s code enforcement officer.

That line was shot down by the appeals board, which concluded that plumbing appeals fell outside its realm of responsibility.

“It’s a process that goes to the [town] council,” said Chairman Mark Maroon. “We can’t act outside of our jurisdiction.” 

Jones then tried to say that the Doris Homer Trust lot did not have 100 feet of frontage on a town way, as required by ordinance in order for a building permit to be issues.

“The town of Scarborough says 100 feet means 100 contiguous feet,” said Jones, “not 50 feet, then a break, then another 50 feet. In fact, Scarborough is even more strict in that it won’t even let you go around a corner. You can’t have 50-feet on one street and 50-feet on the other [adjoining street].”

The appeals board, however, withheld final say on how town ordinances should be interpreted. In the case of the Homer lot, which was first subdivided in the late 19^th century, the 100-foot rule simply does not apply, it said.

“It’s standard practice and interpretation that a grandfathered, non-conforming lot of record is allowed to be built on as long as it meets the required setbacks,” said Maroon.

Speaking for the Portland Museum of Art, attorney John Bannon, of the Portland firm Murray, Plumb & Murray, tried to argue that a septic easement on the Doris Homer lot, inherited by the museum when it bought the studio from Willauer, trumped the Doris Homer Trust’s ability to obtain a building permit that might later the wastewater flow.

The Zoning Board of Appeals simply refused to go there.

“This board recognizes a very low threshold for right, title and interest,” said Maroon. “That’s something that’s outside our purview.”

Bannon spend the next several minutes attempting to argue that the issue did in fact fall under appeals board’s oversight.

“What do you do when you have a deed that says you can’t use a part of this property freely for any purpose you want because it’s limited by an easement?” he asked rhetorically. “My answer to that is that the code enforcement officer must deny the [building] permit, because, if you can’t resolve title issues, he can’t act at all. It’s the applicant’s burden of proof to show that they have unfettered rights.”

By unanimous vote, however, the appeals board decided that sorting out ownership issues does not fall within the scope of a zoning appeal.