VINALHAVEN, Maine — The owner of an island restaurant is seeing potential income melt away this summer after the town rescinded its permission for him to build an ice cream stand after he had built three-quarters of it.
“I’m very disappointed,” said Lonnie Morton, who owns Harbor Gawker restaurant on Main Street. “I bought two new ice cream coolers and a slush machine. I’ve invested $15,000.”
Morton, whose family has operated the restaurant in town for 40 years, filed an appeal in court Thursday over the matter.
Town Manager Stephen Eldridge said Thursday that the initial approval given to Morton by the town planning board on April 14 had been done in error because board members voted by email and not in a public forum.
Then, when the planning board held a public meeting on May 27 to legally vote on the matter, members rejected the permit, according to Eldridge. That rejection occurred after board members learned that the ice cream stand would exceed the allowable amount of development on the lot under town ordinances and that it would intrude on the state road right-of-way, the town manager said.
The sticky situation began when Harbor Gawker Inc. applied to the town planning board on March 30 for a permit to build the 9-by-9-foot ice cream stand attached to Morton’s restaurant. The planning board agreed by email on April 14 to issue the permit.
Planning board member Jeanne Bineau-Ames said board members wanted to help Morton by moving swiftly on his request, so they communicated by email and eventually four members on the island agreed to grant the permit, which was issued by the code officer that day.
“We knew the summer season was coming up and we wanted to help out,” Bineau-Ames said.
Morton said he bought the equipment and the stand was three-quarters complete when the town manager, who also is the deputy code enforcement officer, issued a stop-work order on April 29. The town manager stepped in because the previous code enforcement officer, William O’Donnell, resigned for unrelated reasons shortly after the license was issued.
O’Donnell said Thursday that in hindsight, the board or himself should have asked for a survey before approving the permit. He said the stand comes out to the edge of the sidewalk the same distance as an existing deck for the restaurant and that he thought that was the property line.
Mike Burns, regional manager for maintenance and operations at the Maine Department of Transportation, said that the department was made aware of the situation by the town but that the state is not planning to take any action at this point since the town is handling the matter. He said state law prohibits structures being built within a state road’s right-of-way.
Eldridge said the tax assessor for the town determined that the road right-of-way extends to the edge of the original restaurant building, making the the entire ice cream stand is in violation. He said if the town wins the court case and the stand is determined to be illegal, a decision on what will be done with the building will be up to selectmen.
Morton sought to appeal the town manager’s action to the Vinalhaven Board of Appeals but the town maintained that an enforcement action cannot be appealed.
The town manager said Morton reapplied after the stop work order was issued and after the planning board had met on May 27 and rejected the permit request.
An appeal was filed Thursday in Knox County Unified Court by attorney Frederick Newcomb III of Rockland on behalf of Harbor Gawker.
Newcomb said Thursday that this case was not the same as a recent one in Appleton where neighbors appealed the issuance of a building permit for a house which the homeowner built knowing the matter was being challenged in court. In the Vinalhaven case, Newcomb said no one appealed the issuance of the ice cream stand permit before most of it was built.
In the court filing, Newcomb argued that a public hearing on a permit is optional and the planning board did not need to hold such a hearing. The appeal seeks to void the stop work order, or in the alternative, allow Morton to appeal that action to the town’s board of appeals. Nothing in the filing addresses the right-of-way issue.
In the Appleton case, the property owner agreed to move the house after a court ruling and town referendum.