NON COMPLIANCE

NON COMPLIANCE

Othney Phelps Birch has a singularly remarkable, some might say unfortunate, name. Beyond that, however, he was a little stuck on himself. On the appointed evening he sat, amused and long-suffering, in a cold folding metal chair through what he clearly saw as a mundane discussion of the several equally tiresome items appearing on the Planning Board's agenda ahead of the one with which he was concerned. Already annoyed, he took note of the little white oven timer on the table in front of one Board member, ticking loudly and incessantly and annoying him further and further as the proceedings dragged on. Assuming it was there to cut short long-winded applicants, he barely stifled a disdainful chortle at this brutish alternative to the Rules of Order. Eventually, about half an hour after the meeting got under way, Mr. Birch rose in response to the Chair’s recital of item 5, to wit: “Application of Douglas VanMiddlesworth to build a boathouse and dock on Lot 15 of Map 12.”
Othney stood and gave the Board and the others in attendance a moment in which they might fully appreciate the humbling image of himself packaged in a Loro Piana Houndstooth jacket, Raffaello silk tie and Versace Algonquin evening shoes. “Madame Chairwoman and distinguished members of the Board,” he began, “I am Othney Phelps Birch, senior partner at Conan & Trumble, Cambridge, Massachusetts. I represent Douglas VanMiddlesworth, who is seated here at my left and on whose behalf I will speak in the unlikely event any of you have questions regarding this exceedingly ordinary application for a building permit. Also present tonight and seated at my right is Mr. VanMiddlesworth’s architect Brentley Sweet. I personally prepared this application for the Board’s consideration following an extensive review of your Zoning Ordinance by my staff. Furthermore, I have gone the extra mile, as it were, to appear before you in person here tonight.”
“Excuse me O.P. Don’t mind if I call you Opee do ya?” interjected Board member Louie Hopkins who was seated farthest back from Mr. Birch. Before Opee had a chance to answer Louie continued. “Ya know the little woman and me damn near picked up a jacket just like that one you got on over to Reny’s just fore Christmas. Hell of a buy it was but wicked tight; I couldn’t quite get into it. We was thinkin’ we might go down to the Damariscotta store next week when we go over to see her mother at the hospital, see if they got one there a little bigger. You happy with that one you got on?”
His stride knocked momentarily askew, Opee allowed as how he was, indeed, happy with the jacket and as he instinctively released the two tethering buttons and spread the right and left sides with each hand so as to better display the brocade and its raised silk lining, he continued, “Thank you indeed for asking. Now, as I was saying---”
Louie didn’t hesitate for an instant and, assuming that Opee, in opening his jacket, was offering it to him, he pushed his wooden armchair back, got to his feet and surged forward to receive the offering. When he reached Opee, Louie turned 180 degrees in the manner of one who expected help getting into a jacket, and Opee, fearing that to do otherwise would be to further derail the locomotion of his presentation, had little choice but to remove it from his own torso and help it onto Louie’s, whereupon Louie pirouetted around to offer his hand in gratitude and returned to his seat, comfortable not only with the gesture but with the fit.
A little desperate to regain the high ground, Opee continued, “Mr. VanMiddlesworth negotiated a purchase of the property in question, the former Ingerson homestead, on the east shore of Carver’s Harbor, after an examination by my firm confirmed clear title and revealed no significant obstacles to his plans to expand the existing structure and to build an accessory guesthouse----; forgive me, an accessory boathouse, and to improve the existing dock on the shore. I have here five complete and extensive plans each of which include elevation and footprint views of the various levels of the house and boathouse, schedules of materials and utilities, site preparation, and landscaping plans.” Opee retrieved the five scrolls from an assistant two seats down, a young man he’d ignored in his introductions, and ceremoniously presented them to each Board member. Each package was wrapped in a chartreuse silk ribbon. The five Board members opened their sets of plans. Each 3 x 4 feet, together the sets consumed 60 square feet, significantly exceeding the 48 square feet of table space available to them all. In the process a cup of hot coffee was overturned into the lap of Chairperson Cheryl Goodheart and, following a brief recess during which she regained her composure and cleaned herself up, the Board reconvened and Opee, after repeatedly expressing his concern to the Chair, continued from where he’d left off.
“As you can see from the plans and accompanying material........”
The white timer suddenly sounded so furiously that it literally jumped around a little until Board member Harriet Peterson tapped its little button and announced, “Excuse me everyone, time to tend to the cookies.”
Accordingly, the Chair signaled another recess and Harriet threw on her coat and left. During the fifteen minutes it took her to complete her errand, the remaining four members admired and exclaimed over Louie’s new jacket. He’d removed the ineffectual handkerchief Opee had tucked into the breast pocket and substituted his own oft used plaid bandanna. Before long Harriet returned with a plate of hot tollhouse cookies; some milk was retrieved from the fridge the firemen maintained in the corner of the meeting room, and milk and cookies were had all round before the meeting reconvened. The Chair asked Opee to remind everyone of where he’d left off which he did. Redirecting their communal attention to the plans spread out before them, Opee again reminded them of the straightforward nature of this application and asked if he might expect a vote.
“Vote? Oh sure,” replied the Chair, “just give us a minute to talk it over and see if anyone in the audience wants to speak to the issue.” Opee sat down, not fed up yet with this unprofessional and primitive process and the emerging insubordination of the Board members, but not far from it. He crossed his legs and patiently flicked a speck of cookie crumb from his knee.
“Now about this guesthouse, excuse me, boathouse” asked the Chair, “The plans call for a fireplace and entertainment center and frankly, that gives me pause. As you no doubt know, one strategic purpose of the zoning ordinance is to preserve shore land, particularly in and around the harbor, for activities related to commercial fishing. How do you propose to demonstrate the water dependent use required for approval?”
Opee snapped to his feet. “Good question, maam, very good indeed and I’m glad you asked it, very glad in fact. Mr. Vansmiddlesworth maintains a 35-foot Grand Banks Trawler. No doubt you are all aware of the historic maritime role played by this classic working boat. The importance of its contribution to the time-honored fishing tradition, so much a part of this island’s, your island’s, own heritage, will live on in this noble craft whether it be bobbing proudly on its mooring out front or waiting out the winter in the anticipated boathouse.” Opee sat down.
“So you’re gonna’ fish with that trawler, gonna be a fisherman are you Doug? You don’t mind if I call you Doug do ya?” queried Jeff Allenton. “That last name of yours is kinda time consumin’.”
“Mr. VanMiddlesworth will-----”, began Opee, getting to his feet, but Jeff interrupted him. “You can sit down Opee. We want to hear from Doug himself. Applications like this are a lot easier to swallow if the proposed waterfront use is convincing. You plan on fishin’ with that trawler Doug?
“I really must insist,” answered Opee rising again, “That I am representing----”
“Don’t get your foot stuck in the gurry there Opee. We ain’t in court and we can hear from Doug if we want to.”
Doug answered with some hesitation, “Well, of course, once we get settled, I probably will, uh, I expect I’ll, like, you know, kind of, like fish.”
“Well that’s a relief; gonna make this application a lot easier to deal with,” sighed Grant Ames, a fisherman himself. “Just outta curiosity Doug, what kind of fishin’ do you expect to do with your trawler and where exactly?”
“Well I, uh, hadn’t given it much thought, you know, thinking I’d decide once we’d moved in and got things figured out. What kind of fishing you ask? Well I expect I’ll uh, I guess I’ll uh, you know, like, trawl. Yes that’s it of course. The boat’s a trawler after all. I’ll like trawl.”
“And where ‘bouts exactly do you expect to, like, trawl?”
“Well, uh, I guess at the, you know, Grand Banks.”
“I continue to be relieved,” replied Grant. “Thanks.”
“Now are there any questions or comments from the audience?” asked the Chair. Muffin Peabody stuck his hand up. Muffin owned a fish house just to the south of Doug’s property. “Go ahead Muffin,” acknowledged the Chair.
“Well, as you know my boys and me live next door to this property, but we got no water frontage. My family fishes off the Ingerson wharf, have for near a hundred years. Matter of fact the only way we can get to our fish house is to drive down Ingerson’s driveway and across the sou’west corner of his lawn. The guesthouse he wants---”
“Boathouse,” interjected Opee.
“--- is right in the driveway and completely blocks the only way to the wharf. Matter fact the only way to get to the wharf is gonna be through the guesthouse.”
“Boathouse’” objected Opee.
“If it please the court,” offered Opee standing, “I was hoping this minor obstacle wouldn’t become an issue. Of course we uncovered Mr. Peabody’s easement in our title work but quickly determined that this supposed encumbrance had no legal standing. First, no easement had ever been granted in writing and or recorded as such. Second, in order for such an easement to exist, the Peabody’s would have had to defend it continuously. Specifically, to quote the statute, it would be necessary that they maintain continuous, hostile and open possession in the face of opposition. No such defense has been mounted. Now Mr. VanMiddlesworth, eager to be neighborly and supportive of the natives’ efforts to sustain themselves, has very generously offered Mr. Peabody a pedestrian easement elsewhere on the property, in return, of course, for his relinquishing the dubious right he claims to the wharf. Inexplicably, Mr. Peabody has declined.

“Well as it happens,” continued Muffin, “My old man was aware of the need to lay claim to the right of way and about the need to be hostile about it. Being in the habit of settin’ on the porch after dinner and having a smoke and a glass of beer, he drove or walked down to the wharf damn near every evenin’ dependin’ on the weather, and pissed overboard in full view of the Ingerson house figurin’ that was a pretty clear way to demonstrate the requireded hostility. For awhile old man Ingerson hollered at Paw about how crude that was but then he just give up and turned his chair in a different direction. Since Paw died, fifteen years now, I’ve done the same thing. And another thing, Mr. Midworthyness here did offer me an alternative way to get to the shore. Here it is in writin’. First of all, unlike the wharf I’m usin’ now, the path he wants me to use is over in the nor’west corner where there’s no deep water ‘cept at full tide. Second, it describes a pedestrian easement three feet wide so the only way I can get a trap to the shore or back is to park up on the road and lug one to a time over my head lengthwise. I fish 600 traps. Finally, the easement expires when I do leavin’ my boys with no place to fish from.”
Louis spoke up. “Madame Chair I move the question.” While a second was being called for Louie reluctantly retrieved the Farmers Almanac and his bandanna from his new coat and offered it back to Opee. “I ‘spect you’ll be wantin’ your jacket back,” he said.