Eliot Board of Appeals grants neighbors’ shoreland appeal, reverses Planning Board approval for 53 Hocoka Path

The Town of Eliot Board of Appeals on Feb. 19 granted an administrative appeal filed by neighbors Jane McIlvaine and Robert Finney and reversed a Planning Board approval for a shoreland‑zone building permit at 53 Hocoka Path (Map 111, Lot 4). The board voted 3‑2 (Doran, Himmer and Hamilton in the majority; Rankie and Marshall opposed).

The appeal centered on multiple technical and factual disputes that abutters said the Planning Board did not resolve before issuing its December 16, 2025 decision. Attorney Jordan Gagnon, representing McIlvaine and Finney, argued that satellite imagery, photos and a Planning Board site walk show tree cutting and stump removal within regulated shoreland buffers and that the Planning Board had simultaneously found compliance with shoreland standards and ‘‘uncertainty’’ about existing site conditions. Gagnon said the combination of those findings was legally inconsistent and asked the Board of Appeals to vacate the Planning Board’s approval. “We do ask this Board to reverse their decision as we do feel that some mistakes were made that do jeopardize the conservation of that area,” Gagnon told the Appeals Board.

Owner and applicant Zeland Schwartz, represented by attorney Tim Phoenix, and her counsel acknowledged that timber harvesting occurred on the property and pointed to Maine Forest Service Forest Operation Notification (FON) filings covering both the Hocoka parcel and an adjacent Punkintown Road parcel. Phoenix said the Planning Board conducted a lengthy review — six hearings, Conservation Commission involvement and a site walk — and issued a detailed Notice of Decision. “The Notice of Decision is remarkable in my experience in its depth and completeness,” Phoenix told the Board, asking the Appeals Board to uphold the Planning Board’s findings.

Town Planner Jeff Brubaker told the Appeals Board he found evidence in historical imagery and deed records that Hocoka Path existed before 1971 — a fact that, under the town’s shoreland rules, affects whether two adjacent lots should be treated as merged or separate for shoreland development standards. Brubaker also described the Planning Board’s approach to the shoreland code’s 18‑month/50% replacement rule for nonconforming structures, saying state guidance leaves municipalities some discretion on how to measure ‘‘50 percent’’.

Appellants and several neighbors pressed the Board on environmental concerns as well as process questions. Appellant Jane McIlvaine described longtime community use of the pond and reported turtle‑nesting habitat near the cove that she said had been disturbed. “York Pond is the head waters of the York River estuary,” McIlvaine said, urging the Board to consider water‑quality and habitat impacts.

Forestry jurisdiction and enforcement was a recurring, unresolved issue. Consultant Kearsten Metz, who spoke at Planning Board meetings, told the Appeals Board that timber harvesting compliance is administered by the Maine Forest Service and that, as of the hearing, the Town had no active notice of violation for 53 Hocoka Path. Attorney Gagnon noted that a state investigation was underway and said the Planning Board’s decision relied on incomplete information about site conditions. Attorney Phoenix replied that the Forest Service had inspected the harvest, that FONs were filed and that no enforcement order had been issued.

The Appeals Board also considered competing legal points about whether Hocoka Path qualifies as a road established before Sept. 22, 1971 (which would weigh against automatic lot merger under the shoreland rules) and whether the Planning Board’s Condition 5 — requiring revegetation and state‑compliance steps — was consistent with other findings in the Notice of Decision.

After closing the public hearing and discussing findings of fact, the Board held two motions: an initial motion to deny the appellants’ appeal failed by a 3‑2 count, and a subsequent motion to grant the appeal passed 3‑2 (motion by Member Jennifer Himmer, seconded by Member Judith Doran). Chair Bill Hamilton said the Board will issue a written decision within seven days and reminded the parties they may seek review in Superior Court within 45 days.

The Maine Forest Service investigation and some factual questions about the timing and scope of tree clearing and road construction remained unresolved in the hearing record. The Planning Board’s original approval and the Board of Appeals’ reversal set up a short procedural deadline for either party to seek further judicial review or administrative follow‑up.

Actions and next steps recorded in the meeting: the Board of Appeals will prepare a written decision within seven days; the decision includes the appeals‑record findings and the formal direction that the Planning Board’s approval is vacated (as determined by the Appeals Board vote); parties were advised of their 45‑day right to petition Superior Court for review.

The Board adjourned after completing additional routine business, including approval of earlier minutes and administrative items.