State officials say that Captain Jack’s restaurant in Naples operates an illegal septic system and is in violation of shoreland zoning ordinance provisions, and have recommended that town officials close the restaurant.

Yet, pending the installation of a leach field on the site, the downtown Naples restaurant, which is part of the Naples Marina and abuts Brandy Pond, is set to stay in business, thanks to a ruling by Naples town officials that the violations do not warrant its closure.

They say that’s because the code enforcement officer who gave the green light on the Captain Jack’s project in 2012, Boni Rickett, now lives in Florida, and it’s too late to reverse her decision.

“The town is respectfully following what the previous code officer had found,” said Naples Code Enforcement Officer Renee Carter.

In the spring, Carter contacted officials at the Maine Department of Environmental Protection and the Department of Health and Human Services after she received a resident’s complaint about the restaurant and Naples Marina owner Jim Allen approached the town with plans to expand the restaurant’s deck.

After reviewing the matter, health and human services officials determined that the restaurant was illegally using two septic tanks as wastewater holding tanks, and didn’t have a required leach field for sewage disposal. Meanwhile, DEP officials determined that Allen had never received a Planning Board-approved principal-use permit for the restaurant, and that even if he had obtained such a permit, the restaurant would still violate the town’s shoreland zoning ordinances due to its proximity to Brandy Pond and the fact that the eatery would not constitute a “water-dependent use.”

Allen said the violations were mistakes, and that he is having a leach field installed this week to complete the septic system.

“The town has ruled that I did everything right and that I went through the proper channels,” he said. “I did have a meeting with the town manager and the code enforcement officer and they basically said there’s not going to be an enforcement action.”

Naples Town Manager Ephrem Paraschak could not be reached for comment.

According to town and state officials, Rickett determined in 2012 that Captain Jack’s, which is located in a former marina structure, constituted an “accessory use” and therefore did not require Planning Board approval.

In an April 27 letter to Carter, Mike Morse of the Department of Environmental Protection characterized Rickett’s assessment as untenable.

“The department now understands that Ms. Rickett ultimately concluded that the restaurant was an accessory use and did not require the owner to obtain a permit for the restaurant,” Morse wrote. “As we state above, the restaurant use is unmistakably a second principal use on the property and should not be considered to be an accessory use. To suggest that a 90-seat restaurant and bar with live entertainment is not a principal use is frankly absurd.”

Furthermore, Morse wrote that even if Allen had applied for a principal use permit, it could not have been approved by the Planning Board in good faith. That’s because only “water-dependent uses,” such as marina buildings, can be sited within 100 feet of the shore. According to Morse and Carter, Captain Jack’s is located right on the water, well within 100 feet of Brandy Pond.

“DEP’s position is that the town could not approve a permit for the restaurant in this location, should the owner apply,” Morse wrote.

Noting that “municipalities must administer their ordinances as written,” Morse recommended that the town shut down Captain Jack’s, adding that “the department strongly recommends that municipalities be consistent in their administration of shoreland zoning standards.”

“It is DEP’s position that the restaurant is in violation of the town’s shoreland zoning ordinance provisions,” Morse wrote. “While it is somewhat difficult for the department to advise the town in this manner due to present economic conditions, DEP recommends that the town initiate necessary enforcement actions to eliminate the violation – to order the complete removal of the restaurant (tables and chairs, the entire cooking facility, etc). To allow the violation would be a substantial injustice and could jeopardize the integrity of the town’s ability to administer and enforce its ordinance.”

Carter said she had read Morse’s letter and informed DEP officials that she would abide by her predecessor’s decision.

“Boni did not feel that was a principal use and under her ability to make a decision she decided that it was an accessory use and not a principal use,” Carter said. “It was my decision to follow what the previous code officer had recommended.”

Mark Bergeron, the director of DEP’s Division of Land Use Regulation, said the department was keeping an eye on the situation.

“At this point we’re monitoring what the town is doing but allowing them to administer their ordinances,” he said. “The department does have the ability to take enforcement actions against the town, but that doesn’t happen very often. Typically what we try to do is just get them into compliance with the law.”

The restaurant’s three-year eating establishment license with the Department of Health and Human Services expires on July 6. According to Carter and Rebecca Walsh, an officer with the department’s Health Inspection Program, the restaurant will not receive a license renewal unless the “entire” septic system is completed by July 1, which would include the leach field.

Allen said he thought he had three years to install the full septic system – not two. However, Allen said, he is on schedule to meet the July 1 deadline. Allen also said he’s regularly had the septic tanks emptied while the restaurant has been in operation.

“The leach field is going in this week, and they’re going to connect next week,” he said.

“We’re operating down here on the water. We don’t want to contaminate the water, or do anything that’s bad for the environment.”

Captain Jacks

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