STATE OF MAINE

DEPARTMENT OF AGRICULTURE, CONSERVATION & FORESTRY

LAND USE PLANNING COMMISSION 22 STATE HOUSE STATION

AUGUSTA, MAINE 04333-0022

18 ELKINS LANE PHONE: 207-287-2631 WWW.MAINE.GOV/DACF/LUPC FAX: 207-287-7439

WALTER E. WHITCOMB

COMMISSIONER

NICHOLAS D. LIVESAY

EXECUTIVE DIRECTOR

PAUL R. LEPAGE

GOVERNOR

PERMIT

DENIAL COMMISSION DECISION

IN THE MATTER OF

JON AND JANE MARBET

SHORELAND ALTERATION PERMIT SA 1103

The Maine Land Use Planning Commission (Commission), through its staff, after reviewing the

application and supporting documents submitted by Jon and Jane Marbet (applicants) for shoreland

alteration permit SA 1103, finds the following facts:

1. Applicants: Jon and Jane Marbet

P.O. Box 57

Rockwood, Maine 04478

2. Date of Completed Application: December 12, 2017

3. Location of Proposal: Plan 08, Lot 55

Rockwood Strip Twp., T1 R1 NBKP, Somerset County

4. Zoning: (D-RS) Residential Development Subdistrict

(P-WL1) Wetland Protection Subdistrict

5. Affected Waterbody: Moose River

The Moose River is a Class A water body pursuant to Classification

of major river basins, 38 M.R.S. § 467(4)(F)(1)(e), and a P-WL1

wetland of special significance pursuant to Commission rules.

Administrative History and Background

6. Jon and Jane Marbet own a parcel of land along State Route 6/15 (Jackman Road) and the

Moose River in Rockwood Strip Township, Maine. The upland portion of their property is

zoned as a Residential Development (D-RS) subdistrict. The lot is approximately 11,800

square feet in area with approximately 47 feet of frontage on both the Jackman Road and the

Moose River. The portion of the property on the south side of Jackman Road is developed

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with a pre-Commission dwelling and accessory structures. The deed for this property also

conveys ownership of a boathouse situated over the Moose River located on the north side

of the Jackman Road.

7. The boathouse was constructed in the 1940s and is a legally existing nonconforming

structure. The boathouse is 16 feet wide (parallel to the shoreline) by 28 feet long

(perpendicular to the shoreline). Access to the boathouse from the shore is provided by a

24-foot long wooden walkway. The overall structure extends approximately 50 feet into the

Moose River. The structural components supporting the boathouse are located below the

normal high water mark (NHWM) of the Moose River, which is zoned as a Wetland

Protection (P-WL1) subdistrict.

8. In September 1992, the previous property owners, Wayne and Karen Simino, submitted an

application to the Commission proposing improvements to the boathouse. At that time, the

boathouse was described as being a wood frame structure that sits on wooden pilings. The

bottoms of the pilings were set on the river bottom in iron slat baskets. The baskets were

filled with rocks that surrounded and supported the base of the pilings. The rocks were

bound by concrete to further hold everything in place. According to the Siminos, no work

had been done to maintain the boathouse since it was constructed in the 1940s. As of 1992,

the iron slat baskets had deteriorated allowing rocks to shift. The baskets had also shifted

causing them to move farther out into the river. Guy cables had been installed to tie the

boathouse to shore and keep it from shifting farther into the river.

The water level in the river fluctuates throughout the year. The height of the boathouse

above the river bottom is fixed and was constructed to function best during the summer

months. As a result, during normal high water in the spring and other higher flow periods

the sills and the lower siding of the boathouse were submerged. As of 1992, the sills and

siding that were frequently submerged had rotted and were in a state of disrepair.

The Siminos proposed replacing the entirety of the supporting structure below the normal

high water mark, as well as improving components of the boathouse above the water line.

After discussing the project with the Commission, making modifications, and ensuring the

improvements would not rise to the level of reconstruction, the Commission determined that

under the rules in place at that time a permit for the proposed activity was not need. The

proposed activity included the replacement of the wooden pilings under the boathouse and

the creation of a self-supported pyramid of rocks at the base of each piling that was not

contained by baskets or bound by concrete. These pyramids were intended to support the

pilings.

The Commission assumes this work to sure up the underwater support of the boathouse was

completed by the Siminos, but this has not been verified.

9. On October 20, 2016, the Siminos sold their property, including the boathouse, to the

applicants.

10. In November of 2017, the applicants informed the Commission that their boathouse had

fallen off its supporting underwater structure on November 1, 2017, resulting in the

boathouse being partially submerged in the river. Staff provided guidance to the applicants

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regarding Land Use Districts and Standards, 01-672 C.M.R. 10 (last revised March 5, 2018)

(Chapter 10), and the specific limitations that apply to boathouses, including that boathouses

may not be reconstructed over the water. Staff communicated to the applicants that it would

be helpful to view the condition of the boathouse after it was removed from the river to

provide additional guidance on a path forward. Whether any needed improvements to

boathouse would be substantial enough to require reconstruction would be important to

understand. On December 12, 2017, the applicants submitted, and the Commission accepted

as complete for processing, an application to replace the supporting structure of the

boathouse. In consultation with the applicants, the Commission placed processing of the

application on hold on December 18, 2017, while they sought a technical solution for

removing the boathouse from the river. As of June 11, 2018, Commission staff documented

that the boathouse remains partially submerged in the river.

Proposal

11. The applicants state that all six of the pilings that had supported the boathouse are broken

and propose replacement of the pilings. Whether the bottom portion of each broken piling

remains in place or has shifted or become dislodged is not addressed. The applicants

propose to use a crane to lift the fallen boathouse out of the Moose River and temporarily

place it on their front yard on the other side of Jackman Road. Once the boathouse is out of

the way, the applicants intend to replace all 6 of the existing wooden pilings with new 8-inch

by 8-inch pressure treated wooden pilings and new stainless steel braces and gussets. The

applicants state the new pilings will be placed in the same holes as the existing pilings. The

boathouse will then be brought back across Jackman Road to be installed on the new pilings.

New stainless steel braces and gussets near the top of the pilings will keep the pilings in

place and assist with fastening the boathouse to the pilings. The applicants state that no

equipment will be used below the normal high water mark of the river, no soil will be

disturbed, and pile installation will not cause turbidity. Further description or discussion of

how the proposed work would be accomplished is not provided in the application. How the

base of each piling will be secured also is not discussed. Relatedly, also not addressed is

whether the rocks from the pyramids built around the existing pilings (if the prior owners

completed the repairs discussed with the Commission in 1992 and 1993) will affect the

proposed project.

The applicants only seek permit approval for replacement of the pilings. While they

reference a desire to restore the boathouse back to its original condition, no work to the

boathouse beyond the new pilings is proposed. The applicants do not address what must be

done to the boathouse, if anything, so that it can be placed onto the new pilings. Staff

explained to the applicants that, pursuant to the Commission’s rules, the boathouse may not

be reconstructed or replaced and, in December 2017, placed the application on hold to

provide a reasonable amount of time for the applicants to remove the structure from the river

and assess its condition. This would enable evaluation of whether the boathouse may

continue to be used without the need for reconstruction, prior to investing in the piling

replacement project. An evaluation of the condition of the boathouse has not been submitted

to the Commission.

12. On March 20, 2018, the Commission staff notified the applicants that the application

contains insufficient information to make the findings and conclusions required by law to

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issue an approval and recommended that the application be withdrawn until additional

information could be provided.

Agency Review Comments

13. The Commission solicited comments from the Maine Department of Inland Fisheries and

Wildlife (DIFW) on the proposal. DFIW offered the following:

In the past, [DIFW] has not objected to reconstructing a

pre-existing structure below the waterline as long as there

is no expansion in the original footprint. We would not

object to the applicant’s plan to lift the boathouse on to the

existing rockpiles and replace the supports. However, I

think it would be best in the long run to replace this

boathouse with a floating dock, similar to others in the

vicinity. The Moose River has significant fluctuations in

elevation and velocity, making such structures difficult to

maintain. There must be tremendous stress on the framing

and supports during high flow events. I would be

concerned that the structure could be a safety hazard and

potential debris in the future.

Definitions, Review Criteria and Standards

14. Structure. A structure means anything constructed or erected with a fixed location on or in

the ground, or attached to something having a fixed location on or in the ground, including,

but not limited to, buildings, mobile homes, retaining walls, billboards, signs, piers and

floats. Chapter 10, section 10.02,205.

15. Boathouse. A boathouse is a structure that extends over or beyond the normal high water

mark into which boats are directly maneuvered without leaving the water body. Boathouses

are distinct from boat storage buildings, which require the boat to be removed from the

water for entry. Chapter 10, section 10.02,17. Except in a Maritime Development

subdistrict or in a Designated Area of Cultural or Special Significance, boathouses shall not

be reconstructed or replaced. In P-WL subdistricts, normal maintenance and repair, and

renovation, of a legally existing boathouse is allowed without a permit. Chapter 10, section

10.11,C,2,d.

16. Normal Maintenance and Repair. Unless otherwise provided, work necessary to maintain an

improvement, structure, or docking structure in its original or previously improved state or

condition, as long as there is no expansion of a nonconforming structure and less than 50

percent of a structure is replaced. This includes general upkeep, such as painting, fixing

portions of the structure that are in disrepair, or the replacement of sill logs, roofing

materials, siding, or windows. In-kind and in-place replacement of decking or exterior stairs

is considered to be normal maintenance and repair. Normal maintenance and repair shall not

include reconstruction, or change in design, change in structure, change in use, change in

location, or a change in size or capacity. Chapter 10, section 10.02,142.

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17. Reconstruction. Unless otherwise provided, the addition of a permanent foundation or the

rebuilding of a structure after more than 50 percent by area of its structural components,

including walls, roof, or foundation, has been destroyed, damaged, demolished or removed.

Leaving one or two walls or the floor of a structure in place, while rebuilding the remaining

structure, is considered reconstruction, not normal maintenance and repair or renovation.

Chapter 10, section 10.02,172.

18. Renovation. Restoring or remodeling a structure. Renovation includes interior

modifications, and the installation of new windows, floors, heating systems, or other

features, as long as there is no expansion of a nonconforming structure and less than 50

percent of the building’s structural components are replaced. Chapter 10, section 10.02,180.

19. Shoreland Alteration. A shoreland alteration includes any land use activity, which alters the

shoreland area, either at, adjacent to or below the normal high water mark, of any surface

water body, including but not limited to: a) dredging or removing materials from below the

normal high water; and b) construction or repairing any permanent structure below the

normal high water mark. Chapter 10, section 10.02,193.

20. Permit required. A structure or part of a structure may not be erected, changed, converted or

wholly or partly altered or enlarged in its use or structural form without a permit issued by

the Commission. 12 M.R.S. § 685-B(1)(A).

The proposed replacement of the pilings that support the boathouse located below the

normal high water mark of the Moose River is a shoreland alteration and requires a permit,

subject to applicable land use standards, within Wetland Protection subdistricts (P-WL).

Chapter 10, section 10.23,N,3,c,(11).

21. Water body and wetland impacts and level of permit review. Standards for Protected Natural

Resources apply to the proposed project. Chapter 10, section 10.25,P. In general, an

application proposing an activity in a P-WL1 wetland of special significance, such as a river,

must address how wetland impacts will be avoided and address the nature and extent of

impacts that cannot be avoided. The amount of wetland altered must be limited to the

minimum amount necessary to complete the project. More specifically, the level of permit

review that applies depends on factors such as the size of the alteration, functions of the

impacted area, and existing development or character of the area in and around the alteration

site. A project altering any area of P-WL1 wetland, such as the Moose River, generally

requires Tier 3 review, although the level of review may be reduced (to Tier 1 or 2), at an

applicant’s request, if the Commission determines that the activity will not have an

unreasonable negative effect on the freshwater wetlands or other protected natural resources

present. Additional standards apply depending on whether the project qualifies for Tier 1,

Tier 2, or Tier 3 review.

22. General criteria for approval. An applicant for a permit must meet the general criteria for

approval in 12 M.R.S. § 685-B(4) and restated in Chapter 10, section 10.24. Highlighted

here is that the Commission may not approve an application unless an applicant

demonstrates (a) adequate technical provision has been made for complying with the State’s

environmental laws, including the natural resource protection laws (§ 685-B(4)(A)), (b) and

adequate provision has been made for traffic circulation and parking to avoid unsafe

Page 6 of 8: SA 1103, Jon and Jane Marbet

conditions (§ 685-B(4)(B)), and (c) adequate provision has been made for fitting the

proposal harmoniously into the existing natural environment in order to ensure there will be

no undue adverse effect on natural resources (§ 685-B(4)(C)).

Based upon the above Findings, the Commission concludes the following.

1. Insufficient information to evaluate standards. Although the application contained sufficient

information for the Commission to begin its review, it lacks the necessary information to

demonstrate that permitting standards are met.

Installation and support of pilings and associated wetland impacts. A key area in which the

application is deficient is in its explanation of how the new pilings will be installed and

supported and the associated wetland impacts. Historically, it has been necessary to support

the pilings to keep the boathouse in place in the flowing river. Originally, the pilings were

placed in steel baskets filled with rocks and held together with concrete. In the early 1990s,

the owner at that time discussed replacing the pilings and underwater support after the

original basket and rock supports around the pilings deteriorated, causing the boathouse to

move. Guy wires were temporarily installed to tether the boathouse to shore as a result of

this instability. At that time, the owner settled on a new support design that involved

building rock pyramids around wooden pilings to help keep the pilings and boathouse in

place. The Commission assumes, but does not have confirmation, that the prior owner

moved ahead with these proposed improvements to the support of the boathouse. Support of

the boathouse is again an issue; it no longer rests on pilings.

The present application notes the boathouse was supported by six pilings and that all six

pilings are now broken. At least a portion of the boathouse appears to rest on the bottom of

the river. The application notes the top of the proposed new pilings will be held in place

with stainless steel brackets, as opposed to wooden braces that were used in the past. The

application states the stainless steel will improve stability compared to the use of wood

braces. However, the application does not address how the pilings will be secured and

supported at the river bottom, beyond stating they will be placed in existing holes.

Historically, the support of the pilings has been critical to the overall support of the

boathouse and simply driving pilings into the river bottom has been inadequate to keep the

boathouse in place. Why placing new pilings in existing holes in the river bottom, without

any additional support, will be sufficient today, when it has not been in the past, is unclear

from the application. Nothing in the record addresses the sufficiency of the proposed

design.

Additionally, the application does not address how the present pilings are or were supported,

and specifically whether the rock pyramids were constructed, and, if so, where those rocks

are now. Whether the existing, broken pilings remain in place in the river bottom or have

been dislodged also is unclear. As a result, even if new pilings placed in existing hole would

be sufficient to support the boathouse, the feasibility of locating these holes (if the existing

pilings are no longer in place) and placing new pilings in existing holes (given the potential

for sediment or rocks from the support pyramids to fill these holes) is not clear from the

application.

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Overall, with regard to potential environmental impacts associated with the piling

replacement project, the application indicates an area of wetland (i.e., river bottom) equal to

the footprint of the boat house (432 square feet) will be altered. The nature of this alteration

is not addressed, but it appears it is limited to the boathouse being supported above this area

and not physical disturbance of the river bottom. The application also states there will be no

turbidity associated with pile installation. How installation will be done so as to have no

environmental impact is not addressed in the application.

The Commission requested additional information on March 20, 2018, but has not receive

anything further in response to this request.

Having reviewed all the information before it, the Commission is unsure the proposed

structural design is technologically sufficient to support the boathouse without the addition

of further support around the new pilings. If further support is needed, how would this be

achieved and what would the associated impacts be? Additionally, if the proposed design is

sufficient, how will the work be conducted to achieve the level of impact – zero impact –

stated in the application?

While it is likely possible for the applicants to replace the pilings and provide any necessary,

additional support in a manner that meets the applicable statutory and regulatory standards,

in the submission before the Commission the applicants have failed to demonstrate adequate

technical provision has been made for complying with state environmental laws and

associated standards (12 M.R.S. § 685-B(4)(A)), or that adequate provision has been made

for fitting the proposal in to the existing natural environment in in order to ensure there will

be no undue adverse effect on natural resources (id. § 685-B(4)(C)). Additionally, given the

uncertainty about the nature and scope of potential wetland impacts associated with

replacement of the pilings, the Commission is unable to apply, and thus the applicants have

failed to demonstrate compliance with, Section 10.25,P of the Commission’s Land Use

Districts and Standards.

Traffic movement. With respect to traffic standards, the proposal includes the use of a crane

to remove the boathouse from the river and place it on the opposite side of Jackman Road.

While this proposal seems to be a manageable component of the project, the application

must address how this will be done to avoid traffic congestion and safeguard against hazards

to traffic along the section of roadway that will be temporarily impacted by the crossing.

Some level of coordination between the Maine Department of Transpiration and/or local law

enforcement will be necessary. In the absence of any discussion of how traffic movement

will be coordinated and managed during the craning of the boathouse across State Route

6/15 (Jackman Road) the applicants have not demonstrated that adequate provision has been

made for loading, parking and circulation of land, air and water traffic, in, on and from the

site, and for assurance that the proposal will not cause congestion or unsafe conditions with

respect to existing or proposed transportation arteries or methods, as required by 12 M.R.S.

§ 685-B(4)(B).