Scarborough faces two suits

Appeals filed to block shore-side projects near beach, Homer studio

SCARBOROUGH — Two recent rulings by the Scarborough Zoning Board of Appeals have landed the town in Cumberland County Superior Court.

In both cases, abutters are trying to stop shore-side development projects, one near Scarborough Beach State Park and the other next to the historic Winslow Homer studio on Prouts Neck.

John C. Bannon of the Portland firm Murray Plumb & Murray, along with two attorneys from Jensen Baird Gardner & Henry, filed an appeal in late June on behalf of eight abutters and neighbors of land owned by The Sprague Corp. Through an ancillary unit called Black Point Resource Management LLC, Sprague intends to build a 370-space parking lot and other amenities at 388 Black Point Road designed to open up a section of Scarborough Beach to greater public use. The project generated a persistent hue and cry from the public at large, in addition to the immediate abutters.

The lawyers claim on behalf of their clients that the Zoning Board of Appeals should not have granted a special exemption that allows “commercial outdoor recreation” within Scarborough’s Rural Farming zone.

According to the suit, the board decision to consider a parking lot outdoor recreation, “constitutes an abuse of discretion,” even taking into account other aspects of the project, including, “a few picnic tables, a short walking trail, a boardwalk to the beach [and] a small playgound.”

The beach itself – where one might expect to find activity more commonly considered outdoor recreation, and which is the admitted destination of folks who will use the lot, walks, picnic areas and playgrounds – is not in the Rural Farming zone. Because it lies in a Resource Protection zone, the recreation exemption cannot apply to any activity that takes place there, according to the appeal.

The appeal also claims the special exemption permit failed to meet one of its qualifying criteria – that it would not have an adverse impact on others in the area. The “use, value and enjoyment of their real property will in fact be adversely affected by the noise, odors, lighting, traffic, stormwater runoff, security, increased fire risk, potential groundwater contamination and general commercial activities,” the suit claims.

The eight plaintiffs in the case include the Atlantic House Condominium Association, Robert and Barbara Luke, Russell Kivatisky and Sharman Kivatisky, all of Scarborough, as well as Massachusetts citizens and seasonal Scarborough residents Mary Carey, Jacqueline Quimby and Edith Iler. Quimby and Iler joined the suit as trustees for eponymous trusts. All eight own property abutting the development site except for the Lukes, whose home is said to be “in close proximity” to the parking lot.

All would suffer, the appeal claims, because the “project would operate prejudicially and directly upon their property, pecuniary, and personal rights in a manner distinct from any injury experienced by the public at large.”

The second suit results from the Zoning Board of Appeals refusal on May 11 to block construction of a home directly between the Homer studio and the Atlantic Ocean, which would forever destroy the view the artist enjoyed when creating his popular works.

However, the Portland Museum of Art  – which bought the studio in 2006 – says its concern is not about a lost view. Instead, it says the proposed 3,880-square-foot home would encroach on a sewer easement it obtained with the purchase.

The board sided with the town code enforcement officer, David Grysk, who granted a building permit to the Doris Homer Revocable Trust because he felt the museum’s sewer easement applied only to where the studio’s septic system was built and not to the entire 5,000-square-foot lot immediately behind the studio, in which it rests. There were no comments from the public at the project’s May 11 hearing.

Patricia P. Adams, a Prouts Neck real estate agent, and H.M. Payson & Co., a Portland investment firm, are listed as trustees of the Doris Homer Revocable Trust, which took ownership of five lots that form a U-shape around the Homer studio, on Sept. 29, 2010, following Doris Homer’s death. A building permit was submitted to Grysk on Nov. 8 and approved Nov.17. As designed, the house would sit on several of the original five lots, including the one to which the art museum has an easement.

The museum argues that the Doris Homer Trust “lacked the sufficient right, title, or interest to obtain a building permit” because its sewer easement “sets no limit” on where within the lot it can build a septic system.

The museum’s Complaint for Review of Government Action – filed June 23, also by Bannon of Plumb & Murray – calls the board’s refusal of its argument “arbitrary, capricious, legally erroneous and unsupported by any competent evidence in the record.”

“We are acting solely to protect our property rights,” said John Isacke, president of the art museum’s board of trustees, on Tuesday. “That easement to us is just as much a property right of the Portland Museum of Art as the fee simple interest in the land and ownership of the building.”

Isacke said Homer “spent the most important years of his life on Prouts Neck and produced some of his most important pieces in that studio,” which the museum plans to open to limited tours in September 2012, once restoration is complete.

However, while he acknowledged that seeing what Homer saw is “obviously important to anybody trying to get the full experience” of visiting the famous studio, the museum is not out to block construction of the new home altogether.

“We don’t own all of the land around the study and the people who own that land should be able to do as they see fit,” said Isacke. “We don’t begrudge their ability to do that.”

Isacke said that before Doris Homer died, she offered to sell the museum all five lots that surround the studio, “but we declined.” If the Doris Homer trust chooses to build a smaller house that does not encroach on any corner of the one lot in which the museum’s septic system sits, that would end the lawsuit, said Isacke.

“If the view is affected, that might be too bad,” he said, “but they have property rights.”