Board rejects second appeal of subdivision

SOUTHWEST HARBOR – The appeals board on Tuesday rejected a second appeal of the Gold Coast subdivision, ruling that the planning board did not err in accepting the developer’s storm water management plan.

The public hearing on the question lasted nearly four hours, but the board needed only a few moments to deliberate before agreeing unanimously that abutter Sig Eschholz failed to show that the storm water plan did not comply with town ordinances.

The board also agreed that the planning board’s decision was based on substantial evidence in the record.

The appeals board will hear a third and final appeal of the project next Tuesday, beginning with a public hearing at 6 p.m.

In order to overrule the planners, the appeals board had to find that the storm water management plan was “clearly contrary” to municipal ordinances and that the decision was not supported by the evidence.

Eschholz and his attorney, Phil Worden of Northeast Harbor, argued that a storm water model developed by the project engineer was flawed – even suggesting that it was intentionally doctored to ensure it would show that storm water would not create problems for abutters.

Worden noted that engineer Don Becker of CES had changed his model by upgrading the soil type at the Fernald Point Road property to show that the ground would absorb more water than it actually would.

Worden said the planning board made a “serious mistake” in accepting the plan, which focused on whether the road would flood, rather than the impact of storm water runoff on abutting property.

“I hope you can see the sleight of hand in this,” Worden told the appeals board.

After being quietly chastised by Andrew Hamilton, attorney for developer Steve Gillespie, Worden toned down his allegations, later insisting that “inaccuracies” in the storm water model could underestimate the true water flow off the site during a heavy rainstorm.

Gillespie’s project has been controversial since it was first submitted two years ago. He proposes to subdivide a 20-acre parcel of hilly land into eight house lots.

Eschholz, whose property directly abuts the steep Gold Coast property, said he feared that runoff from the developed site could flood his basement, cause erosion on his land and driveway and cause other serious problems.

In his response to the assertions, Becker explained that his first model of the site, using the poorer soil grades, showed that during a significant rainstorm, Fernald Point Road would flood.

Becker said, however, no one who has lived on the road, even for decades, has ever seen the road flood, so he “calibrated” his model to more realistically outline what would happen during a major storm.

Becker said engineers are taught to amend their models when they know the outcomes are blatantly wrong.

“It’s completely permissible,” he said. “It’s done all the time.”

Both Hamilton and Becker reminded the appeals board that the planning board was uncertain enough about the storm water plan that they hired an independent engineer from the S.W. Sewall Co., who supported Becker’s model and plan.

Becker argued that Eschholz’s property would get less storm water runoff once the development is complete because water that already soaks the upper portion of his land will be diverted into the development’s runoff path.

The appeals board assured Eschholz if he has any problem with runoff from the Gold Coast site that Code Enforcement Officer Steve Wilson is authorized and expected to enforce all aspects of the subdivision plan.

“There’s no reason you should live in fear,” board Chairman James Geary said.