BATH — The approval of an amendment to the RiverWalk condominiums along Commercial and Front streets has once again highlighted gaps in Bath’s ordinance that leaves the city virtually powerless to stop certain aspects of new development in the city’s historic district.

Article 8, section 12 of Bath’s land use code covers the city’s Historic Overlay District, intended to protect historic parts of Bath by preventing radical changes to existing buildings while also ensuring new construction fits the neighborhoods. The ordinance, however, cannot actually impact or give good direction to new development due to key flaws.

Those flaws were at the forefront of Bath Planning Board’s wrangling with an amendment to the RiverWalk development. The project, which was approved by the planning board back in June 2015, originally called for the construction of multiple two-story condos along the riverfront of Front and Commercial streets. However, the developer, seeing higher than expected demand, came back to the planning board for an additional third story on newer buildings that have yet to be constructed.

Neighbors immediately opposed the amendment on grounds that it reduces the already narrow view of the river caused by the construction. Some board members were also opposed to the amendment, stating that the changed appearance of the structures didn’t seem to mesh with historic buildings around it, which include some homes built as early as the 1790s.

Despite opposition from neighbors, and even members of the board itself, vague language defining the Historic Overlay District means there’s nothing to prevent developers from building structures that may not fit in.
It’s a problem that was pointed out by board members John Sunderland and James Hopkinson in 2015, and again at the approval of amendments on Dec. 5.

“The general standard for enforceability is the ordinance has to give somebody notice of what they’d have to do to satisfy the ordinance,” said Sunderland. “That means anybody can take a look at that part of the ordinance and an application and say, ‘yes, it meets it,’ or ‘no, it doesn’t meet it.’”

Bath’s historic overlay, however, doesn’t have definable standards that can be easily understood by an outside developer. The ordinance states that any new construction must be “compatible with other buildings in the Historic Overlay District,” which is too objective to hold up to scrutiny.

“The language that’s used in the ordinance is not sufficient to satisfy the requirements that exist under Maine law, both statutory and case law,” said Hopkinson.

Compatibility, as a standard, is hard to describe, and ends up adding too much subjectivity.

While some ordinance standards can seem vague, they end up being easily quantifiable. One example brought up by Hopkinson at the Dec. 5 meeting is a standard in another Maine town for dock size, which was described as “large as it needs to be.”

While seemingly vague, because of the nature of the use of a dock, it offers plenty of information. When a lobsterman wanted to build a new dock, he could show how many traps that needed to fit on it. That gave both the applicant and the planning board a definable number for how big the dock needed to be to fit all the traps.

“Compatibility,” however, isn’t something that has a definable number or standard. What may be compatible to one person isn’t to another. Sunderland pointed out that having Bath’s Planning Board – which is an appointed position that never faces re-election prospects – make subjective decisions is an overreach of their duties.

“We never go out and face the voters,” said Sunderland. “Do you really want us exercising unfettered decisions based on our personal preferences?”

The very issue with compatibility was highlighted at the Nov. 7 planning board meeting. When the board voted 3 – 3 on the amendments to the RiverWalk proposal, the developer then asked the board what changes could be made to satisfy the ordinance.

“Nobody on the planning board was able to give them any idea of what they’d have to do to be able to satisfy the ordinance,” said Sunderland. “The courts are never going to uphold something that’s based on personal preference.”

For neighbors of the future RiverWalk buildings, the changes are less of an issue than the potential for more changes in the future. As long as the buildings meet height and width requirements specified within a specific zone, the historic overlay has little power to stop any new construction.

That issue is compounded by the fact that the RiverWalk buildings lie in the city’s C1 Commercial District. While all of the buildings south of Oak Street have a maximum height of 35 feet, any building north of Oak Street doesn’t, and instead is restricted in size by a floor-to-area ratio. RiverWalk buildings that will get a third floor fall in one of the only areas of the C1 district north of Oak Street.

Theoretically, a building could be built in that area that’s eight stories tall, as long as it meets the floor area ratio requirements.

“My fear is that he’s (developer) going to keep doing this,” said Barbara Graham, who lives at 22 North St. “The idea is they can change it whenever they want to change it.”

Her husband, Anthony Graham, was an outspoken critic of the changes and said he feels the city gave up too easily on allowing the development. “I think it’s because they wanted something down here so desperately,” said Anthony.

The new buildings are to be built in what’s commonly known as the “Coal Pocket.” The area was used as storage for coal, and at one time, had a coal gas plant, but has sat empty for decades.

Anthony said he feels the planning board didn’t apply the standards of the historic overlay narrowly enough, as the code specifies that buildings must be compared to those adjacent to them, and not in the district in general.

Sunderland called the current historic ordinance “frustrating” given its difficulty of enforcement, and said that there are currently efforts to improve it.

“One of the things we’re going to try to do is address that and make a recommendation to City Council,” he said. “We’ve wrestled with the fact that the ordinance is less than definitive before, and I’m sure we’ll wrestle with it again unless we can really go forward with a dedicated effort to come up with a new ordinance.”

Sunderland, who lives in the Historic Overlay District himself, said he thinks having historic protections in place are important to preserve the character of Bath.

“I have an interest in making sure that our historic district remains as attractive, and makes Bath as wonderful a place to live as it is,” he said.

Bath’s Director of Planning and Development Andrew Deci said tackling the Historic Overlay District is going to be a priority in 2018. Bath’s new City Planner Ben Averill will be heading up efforts to create the new ordinance.

“There will be at least three to five sessions (with the planning board), with a goal of having something finalized in the next three to five months,” said Averill. “They will be interested in any input the community has.”

What the future ordinance could look like is unclear. Because it’s an “overlay,” the historic district covers multiple zoning districts in the city, from dense commercial to residential. The future of the ordinance may mean it will be broken up.

“These are things that we will have to talk about,” said Deci, who also encouraged the public to get involved. “Anyone who is concerned about design and preservation in our community should be part of this conversation.”