2018-03-30 / Front Page

Dilapidated marina loses appeal with city

By Duke Harrington
Staff Writer


A building at Aspasia Marina, located at 257 Front St. in South Portland on Tuesday, March 27. In October the city declared it a “dangerous building” and said it would have to come down. On Monday, the owners lost a case before the board of appeals which denied permission to rebuild on the same footprint, ruling the state if the building was due to years of neglect, not a recent snowstorm. (Duke Harrington photo) A building at Aspasia Marina, located at 257 Front St. in South Portland on Tuesday, March 27. In October the city declared it a “dangerous building” and said it would have to come down. On Monday, the owners lost a case before the board of appeals which denied permission to rebuild on the same footprint, ruling the state if the building was due to years of neglect, not a recent snowstorm. (Duke Harrington photo) SOUTH PORTLAND — The owners of a waterfront marina building long derided by neighbors as both an eyesore and a danger to passing pedestrians have lost a city appeal and cannot rebuild on the same footprint.

Now, because of its unique location, that may now preclude rebuilding at all.

Following a three-hour hearing on Monday, March 26, the South Portland Board of Appeals ruled unanimously that Aspasia Marina warehouse, located inches off the road at 257 Front St., reached its current state of partial collapse due to decades of neglect and not, as an attorney for the owners argued, thanks to a heavy snowstorm. That means the two-story structure, thought to date to 1850, loses it grandfathered status and will have to be set back at least 20 feet from the road, if and when it is rebuilt.


A building of the Aspasia Marina complex at 257 Front St. in South Portland that has been declared a “dangerous building” and ordered torn down by the city, which says any replacement must be set back at least 20 feet from the road. The building, said to date to 1850 is located just inches off the road and, in fact, may actually be within the city’s right of way. (Duke Harrington photo) A building of the Aspasia Marina complex at 257 Front St. in South Portland that has been declared a “dangerous building” and ordered torn down by the city, which says any replacement must be set back at least 20 feet from the road. The building, said to date to 1850 is located just inches off the road and, in fact, may actually be within the city’s right of way. (Duke Harrington photo) Joanna Tourangeau, an attorney at Portland law firm Drummond Woodsum, who spoke on behalf of the owners, Near East Technological Services, acknowledged the structure “was not pristine.” However, she claimed the ridgeline of the roof only gave way as a result of Winter Storm Theseus, which dumped 10 inches on Ferry Village on April 1, 2017.

Tourangeau said the owners agree with city Code Enforcement Officer Matt LeConte, who in an Oct. 24 letter declared the structure to be a “dangerous building.”

“That building is entirely in need of removal and replacement,” Tourangeau said, not disputing LeConte’s assessment that it is “unsafe, constitutes a fire hazard, and constitutes a hazard to health and safety.” However, Tourangeau blamed the partial collapse on the storm, a socalled “act of God,” and not, as LeConte did, “inadequate maintenance and dilapidation.”

Or, at the very least, she said, city code does not specify that a building had to be functional before the final straw came that necessitated its removal.

“There is nothing in which requires that all of the damage be caused by a storm or other accidental cause,” she said. “The pictures are clear that the significant part of the damage has been from the storms that have occurred, starting with Theseus.”

“I am familiar with the property, as I believe most people in South Portland are, and I just wonder if that’s accurate,” said board Chairman Cara Biddings.

Tourangeau said the decision to replace the building was only deemed an inevitability after the April 2017 storm.

Tourangeau said the California-based owner, for whom the marina is named, inherited the site from her father, George Drivas in 2011.

“She is very emotionally attached to these buildings,” Tourangeau said, adding that but for the storm damage, the preference would have been to repair and preserve, rather than replace the building.

Tourangeau claimed the city was OK with a rebuild when first approached in June 2017. It was not until after LeConte’s October letter that the first mention was made of a setback issue.

“To remove someone’s right to rebuild something that has been around for hundreds of years based on language that isn’t in the ordinance is problematic,” Tourangeau said.

On Feb. 2, city building inspector Rich Seller refused to issue Aspasia a building permit to construct a 48-by-25-foot, two-story replacement on the current building footprint, saying any new construction is subject to site plan approval by the planning board. Because the area is in the Shipyard S industrial zoning district, proximity to the waterline wouldn’t be an issue with a new building. However, moving a new warehouse back that required distance from Front Street will cause it to encroach on a wharf on the site, which is also partially collapsed.

A move back from the street would be problematic regardless, said neighbor Richard Ingalls, “because the tide comes in almost to the back of that building.”

Ingalls, a former harbor commissioner who helped permit the site when it was converted from a defunct shipyard into a marina in the early 2000s, was the only audience member at the hearing to speak in favor of the property owner.

“Putting a 20-foot setback into a row of buildings that was there before Front Street was Front Street seems a little bit difficult to me,” he said.

Kathryn DiPhilippo, executive director of the South Portland Historical Society, saying she was not on either side, nonetheless agreed with Ingalls that the shipyard complex predates even the concept of zoning.

“This is one of the most historic areas of South Portland. It would be really hard to find something more historic,” she said, dating the buildings to 1850.

Although no longer used to build ships, the property is said to be the second-oldest shipyard in America, dating to its founding in as the Portland Ship Yard Co. and railroad lines are still present that run directly into the ocean because the warehouse in question. DiPhilippo said the marina property is on both sides of Front Street – city officials have said the warehouse is within the right-of-way for the road – intimating this is because the shipyard was there first.

“Sailing ships and trawlers and steam boats and tugboats were all built there. It’s one of the oldest sites in South Portland. It has a really cool, old history. But there are no buildings there that have 20-foot setbacks,” DiPhilippo said. “I don’t really see how you can hold this business to a standard that calls for a 20-foot setback. It doesn’t fit the site. When you look down the street, all of the buildings are built right up on to the street. There’s no building there that has a 20-foot setback.”

DiPhilippo wished board members “good luck” in determining whether or not the current state of the warehouse can be attributed to a single storm, irrespective or prior maintenance. However, she said, exceptions to city code were worth considering.

“I look at it more as how our city should be looking at it,” she said. “Do we want that area to stay and have a historic look to it and try to hold on to that history? If you require a 20-foot setback you are basically telling them that they are not going to be able to rebuild. I mean, it’s right on water. There’s no room for a 20-foot setback. And if this building comes out, does that mean the others have to come out, and you lose forever the historic nature of that site? Do we then end up with more condos right on the water?”

Others in the audience were less sympathetic.

“What takes my breath away is the blighted nature of that property, the whole site,” said Deake Street resident Rob Sellin. “That type of property would never be permitted as a residence. That would have been ordered gone years ago. We’re just lucky that building has not fallen down on a bunch of kids or caught fire and taken out Saltwater Grille and who knows how many homes. It’s time to act.”

Sellen produced a photo of the building taken in November 2013 which showed that the roofline was sagging even then, as evidenced by a vent pipe that was rusted but for several inches at the roofline.

“This building has been collapsing for years. It was sagging around that vent pipe even then,” Sellin said.

Former three-time mayor Tom Blake said he inspected the property “six to eight times” times during his 27-year career as a city firefighter, from which he retired in 2007. Those inspections, he said, were always done from outside the building.

“This has been a stigma in our city for a long time,” he said. “There is a reason why the fire department would not allow its people to go into this building even more than a decade ago. It has stunned me that a building this run down has been allowed to stay that way for such a long time.”

In 2014 Blake and other members of the Ferry Village Neighborhood Association talked about petitioning the city for action against the building, but then city manager Jim Gailey (now the manager of Cumberland County) reportedly discouraged that uprising. Then assistant manager Jon Jennings (now the city manager of Portland) said at the time he was working with the owners of a redevelopment deal. Although details never emerged, then-mayor Jerry Jalbert spoke at the time of a “boutique restaurant” as being central to the concept.

Whatever may have been, one snowstorm is not responsible for what is, Blake said.

“This did not come from any snowstorm,” he said. “Plain and simple it came from decades, and I mean decades, of neglect.”

Blake said the required setback for any new building is a necessity for public safety.

“History does not trump safety,” said Blake, who also teaches a local history class as Southern Maine Community College. “Right now, you can reach out with one hand and touch that building, and with the other touch a car driving by.”

“But for the property owner’s failure to maintain, the building would have come through that storm just fine,” said Deake Street resident Natalie West who, with Sellin, owns a rental property less than 500 feet from the warehouse.

“You can’t reward a property owner who fails to maintain their property by giving them some kind of benefit. You can’t interpret a zoning ordinance to encourage and perpetuate blight,” West said, arguing for the setback requirement and claiming that by allowing a new structure to go in on the same footprint, the appeals board would encourage all property owners in the city to think, “If I sit back and don’t do anything to my property for 20 years, I’m going to get rights that I otherwise would not have.”

Meanwhile, City Attorney Sally Daggett presented several older photographs of the building, including one from a 2014 issue of the Sentry, to show that it has been “in a dilapidated state for a very long time.”

“There were holes in the roof even then,” she said. “So, I think you can see why the city code enforcement officer and the building inspector don’t think either the April 1 snowstorm or the windstorm from this past October were the cause for the state of this building.

“If somebody doesn’t maintain a building doesn’t that make it more susceptible to damage? Who is responsible for that? We believe it is the property owner,” Daggett said.

In reply, Tourangeau reiterated her client’s position that LeConte erred by saying they have no right to rebuild in place because the damage was due to lack of maintenance.

“There is no authorization in the ordinance that says that that’s a standard that he could apply,” Tourangeau said. “To take away someone’s property rights entirely based on language that is not in the ordinance is not strict construction, or liberal construction, it’s a new standard that doesn’t exist.”

Board member Bob Whyte countered that the ordinance’s allowance for damage that is “accidental” does indeed count as a provision on which LeConte can hang his interpretive hat.

“Anything that is not accidental must be outside the language,” Whyte said.

“I’d say the same, that it goes to our understanding of what an accident is and whether an owner has allowed the building to deteriorate to the point where a normal storm takes it down – if that’s an ‘accident,’” Biddings said.

Finally, Ingalls returned to the podium for one final plea.

“The shipbuilding at that site is done. It’s finished. It will never come back,” he said. “These people are between a yacht club and another marina, and they are fighting for their lives to stay in business. If this board hobbles that and a hotel complex comes in and buys that property, these people who are complaining about what’s happening at that old shipyard will wish they’d let this (setback waiver) go through.”

In the end, the board ruled 5-0 against the marina.

“Although I am sympathetic to many of the views that have been expressed here, this is not the place for that to be sorted out,” Whyte said.

“I just can’t buy that a snowstorm in Maine is an accident that should damage a building, one with a peak roof especially. I think the CEO clearly made the right decision,” said Alex Anastasoff, a member of the board of appeals. “Something needs to be done about this building. It is a danger to the community around it. It’s not going to be long before some kids get in there and we’re all looking at a tragedy.

“I’d like to see them fix the building, but I don’t know if that can even happen, and the owners have put themselves in that position by not taking care of the property over the years,” Anastasoff said. “I don’t believe tearing the building down and replacing it is allowed in our ordinance.”

Staff Writer Duke Harrington can be reached at news@inthesentry.com.

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