Town of Mount Desert Planning Board
Planning Board Meeting Minutes
Meeting Room, Town Hall
6:00 pm, January 14, 2015
Public Present
David Moyse, Noel Musson, Carl Little, Erick Swanson, Greg Johnston, Sandy Wilcox, Annette Carvahal, Jack Russell, Charles Gilbert, Ken Cline, Sue Ferrante-Collier, John Collier, Elizabeth S. Roberts, Vicki VanDenburgh, Jack Russell
Board Members Present
David Ashmore, Meredith Randolph, Dennis Kiley, Chairman Ellen Brawley, Lili Andrews
Also present was CEO Kimberly Keene, and Recording Secretary Heidi Smallidge.
Chairman Ellen Brawley called the meeting to order at 6:05 pm. It was agreed by consensus that Item D would be moved up to Item C in the Agenda.
December 10, 2014: Ms. Andrews moved, with Ms. Randolph seconding, to approve the Minutes as presented. Motion approved 4-0.
- Conditional Use Approval Applications:
- Conditional Use Approval Application #030-2014
OWNER(S): Kindle LLC
APPLICANT(S): Beverly and Peter Orthwein, managing members
AGENT(S): GF Johnston & Associates/The Musson Group
LOCATION: 53 Harborside Road, Northeast Harbor
TAX MAP(S): 026 LOT(S): 032 ZONES(S): Shoreland Residential 1 (SR1)
PURPOSE: Sections 3.4 & 6.C.7 – Marine Structures
SITE VISIT: 4:00 pm
Ms. Andrews confirmed adequate public notice, and notice to abutters was given. No conflict of interest was found.
Ms. Andrews reported on the site visit. She attended with Chairman Brawley, Greg Johnston and Noel Musson. She reported that they observed where the pier would be attached to the bedrock, that the float would be removable and that piers would be supported by granite. Mr. Musson noted he had been working with the Harbormaster regarding moorings in the area that would require moving. There were similar piers on either side of the proposed pier.
Mr. Johnston noted there was an existing path, and the area was already cleared. Choosing this area and avoiding additional vegetation removal necessitates the lengthening of the pier, due to the clearing being in an inlet. The pier is 45 feet less than allowed for maximum length. There are multiple similar structures in the area.
Mr. Kiley inquired about the work with the Harbormaster and the moorings. Mr. Johnston mentioned that two moorings would be displaced. The Harbormaster stated one mooring is no longer used, and another one will have a new location.
There was no comment from the public. The public hearing was closed.
Mr. Kiley moved, with Ms. Andrews seconding, to use the short form. Motion approved 5-0.
Ms. Andrews moved, with Mr. Kiley seconding, to find the application complete. Motion approved 5-0.
Ms. Andrews moved, with Mr. Kiley seconding, to approve the application.
The Board reviewed the checklist, which is attached to these Minutes.
Motion to approve the application approved 5-0.
- Conditional Use Approval Application #031-2014
OWNER(S): Deep Cove Holdings, LLC
AGENT(S): Greg Johnston, GF Johnston & Associates
LOCATION: 673 Indian Point Road, Pretty Marsh
TAX MAP(S): 012 LOT(S): 006
ZONES(S): Shoreland Residential 3 (SR3) & Resource Protection (RP)
PURPOSE: Section 3.4 Non-Commercial Indoor Recreation Facilities
SITE VISIT: 2:00 pm
Ms. Andrews confirmed adequate public notice and verified abutters were notified. No conflict of interest was found.
Ms. Randolph reported on the site visit. The design is low to the ground and modest, relatively speaking, with regard to visual impact. The building is outside the setback lines of the shore.
Mr. Johnston noted the building will house a squash court and bowling alley. Most of the building is below grade. There are already small maintenance roads in the area and these will be used as access to the building. The entire parcel is 102 acres.
Mr. Kiley moved to find the application complete. Ms. Randolph seconded the motion. Motion approved 5-0.
Mr. Kiley moved, with Ms. Andrews seconding, to approve the application.
Mr. Kiley moved, with Ms. Andrews seconding, to use the short form. Motion approved 5-0.
There were no comments from the public. A review of the application was made and is attached to these Minutes.
Motion to approve the application approved 5-0.
- Conditional Use Approval Application #033-2014
OWNER(S): Albert Jensen
AGENT(S): Noel Musson, The Musson Group
LOCATION: 6 Village Park Road, Somesville
TAX MAP(S): 010 LOT(S): 151-003 ZONES(S): Village Residential 1 (VR1)
PURPOSE: Section 5.6 Amendment to a previously approved CUA application #006-2009
SITE VISIT: 3:30 pm
Ms. Andrews confirmed adequate public notice and verified the abutters were notified. There was no conflict of interest found.
Mr. Kiley moved, with Ms. Andrews seconding, to use the Section 6 short form. Motion approved 5-0
Mr. Kiley moved, with Ms. Andrews seconding, to find the application complete. Motion approved 5-0.
Mr. Musson noted the use was exactly the same, just a 60x30 removable structure is being proposed for the area. Discussion ensued regarding whether a removable structure was a significant change. There was no public input.
Chairman Brawley reported on the site visit. The removable structure will be located in front of the building. There is vegetation between the road and the structure, but it will be somewhat visible. Mr. Musson reported it will probably be a darker green to blend with the vegetation.
A review of Section 5.6 was made and is attached to these Minutes.
A review of Section 6 was made and is attached to these Minutes.
Motion to approve the application with conditions stated as the structure must be removable and of a color that minimizes visual impact (I.E. GRAY OR DARK GREEN) approved 5-0.
- Conditional Use Approval Application #032-2014
OWNER(S): James Owen Parker Harris c/o Shepard Harris
APPLICANT(S): Parker Harris
AGENT(S): Jules Opton-Himmel and Erick Swanson
LOCATION: Lakeside Road/Echo Lake Road, Mount Desert
TAX MAP(S): 009 LOT(S): 120-009
ZONES(S): Shoreland Residential 2 (SR2)
PURPOSE: Sections 3.4 & 6.C.7 – Marine Structures
SITE VISIT: 2:45 pm
Ms. Andrews confirmed adequate public notice, and verified the abutters had been notified. No conflict of interest was found.
Mr. Kiley reported on the site visit. He and Ms. Randolph were in attendance. The site is at the conjunction of Echo Lake Road and Lakeside Road. The site is a bog or marshland with Denning Brook entering the wetland area on the far end. A boardwalk is planned spanning from the road to near Denning Brook, but not all the way to the brook. Mr. Kiley noted there was significant concern from the neighbors with regard to the ecological resource of the wetland and the brook. The intentions of the boardwalk are not known and it was not known at the time of the site visit who would be beneficiaries to the boardwalk. There was no representation from the applicant at the site visit.
Mr. Swanson, an agent for the project, stated the boardwalk was to allow Echo Lake water access for property owners of six lots currently owned by Shep Harris. A float would be next to the boardwalk. He noted the curved boardwalk design plan is aesthetically pleasing. The design is similar to the Jesup Trail Boardwalk in Acadia National Park. The work would be done by hand. The height of the structure would be below the vegetation and there are no handrails.
Mr. Kiley asked what the depth of the water was at the terminus of the boardwalk. Mr. Swanson noted it would probably depend on the time of year, but felt the water was deep enough to launch a canoe or kayak. It was noted Denning Brook has a hard-rock bottom. The area would be private access only for those landowners previously mentioned. Chairman Brawley voiced concern with regard to keeping the area private. Mr. Swanson noted that no parking was planned.
Mr. Kiley pointed out the distance from the lots to the boardwalk would be considerable. Mr. Swanson stated that people would drop their boats, canoes, or kayaks off at the site and walk over or boat in from Echo Lake. Equipment for water activity could be left at the float.
Ms. Randolph mentioned the DEP application describes different conditions than what is being described. Chairman Brawley read from the application; “the original subdivision plans provided access for the future residents of these subdivisions to Echo Lake via a land easement which included a parking area and a floating dock at the southern terminus of the new road. The original easement was across lands owned by Mr. Harris. At a later date this land was sold to Mark Sevigny and Sarah Pierce and an easement was to be held by the Lakeside Association, recorded…Unfortunately in recent years disputes have arisen and access for the residents of Lakeside Road across the easement is being denied. All efforts to settle the dispute have been fruitless. As a result the Harris family has been
forced to find another means of access to Echo Lake for the current and future residents of Lakeside Road.”
David Moyse of Moyse Environmental hired to handle the permitting with the DEP and the Army Corps of Engineers for the project, said that this boardwalk would serve Lakeside subdivisions 2 and 3. He added the project will be reviewed by the DEP and the Army Corps of Engineers. The boardwalk’s footprint in the marsh was only 40.8 sf.
Ms. Randolph noted the area of the road at the proposed site was not conducive to any kind of parking for equipment offload; the road is busy, even in the winter. Chairman Brawley felt the lack of a parking area would not be an effective deterrent for people who want to park. Mr. Swanson suggested a sign can be put up. The boardwalk would be on a single lot currently owned by Parker Harris. Mr. Swanson pointed out that people walk the road frequently. It wouldn’t be a problem to have a few people walking to the area to use the boardwalk in addition to other pedestrians using the road.
The public was invited to speak.
Charles Gilbert, an attorney representing Jack Russell and others, stated the area in question appears to be in the Stream Protection zone as well as the Shoreland Residential zone. Discussion ensued regarding the question of whether the property in question was in the Stream Protection zone.
Attorney Gilbert listed a number of items he felt warranted review:
- After reviewing the application, Mr. Gilbert did not feel that this was a marine structure. He felt it would be closer to a recreational structure. It begins upland, and stops short of the water.
- Mr. Gilbert pointed out that the application is incomplete and inaccurate with regard to pedestrian traffic. This is a structure that people in a different subdivision located 300 yards away will have the right to use. However no easements have been shown in the record to allow this right. There is no right title and interest shown in the application with regard to the other lots proposed to use the boardwalk. Mr. Gilbert felt the other lots should have been included in the application.
- Mr. Gilbert noted the Harris family has developed three subdivisions in the area. The water access for the first subdivision does not apply to the other two, and this is Mr. Harris’ attempt to rectify the question of water access for the other two lots. Mr. Gilbert was not sure the subdivision could be amended to allow this. Mr. Gilbert opined it would be illegal to sell the lots with water access without an amendment.
- Mr. Gilbert noted it was the applicant’s burden to provide proof to meet every standard. Due to the proposed site being in a wetland, there were issues with erosion, drainage, traffic safety, land suitability, and stormwater.
- The ordinance also prohibited the cutting of any vegetation within 75 feet of the high water mark.
- With regard to the parking standard, Mr. Gilbert felt it was not accurate to assume every person using the boardwalk would walk to it.
- He added that an environmental impact assessment could be required.
The application doesn’t show potential flow that will be released into the stream.
A float would effectively block the outlet to Echo Lake, or at least impair it.
Mr. Kiley noted that with reference to the float, the size indicated on the application references the boardwalk only.
Chairman Brawley felt that before the application review could proceed, a clarification of the subdivision would be needed. Mr. Swanson noted the only lot sold in the subdivision is the lot for the proposed boardwalk, now owned by Parker Harris. Shep Harris owns the rest of the land. He wants the lots to have lake access before he sells them. The original six lots are not a part of the issue as they have deeded water access. It was noted there were no easements allowing the lots of the other subdivisions to use the boardwalk access. Mr. Moyse noted the easement had to be established first. Mr. Swanson felt any future use would be up to Parker Harris.
Annette Carvahal of the Echo Lake Road Association spoke with regard to road safety. It was difficult to see oncoming traffic when turning onto Lakeside Road. The entry to the boardwalk will only exacerbate the traffic problems. Impact on the police department is also a concern. Ms. Carvahal noted the permit is for day use only, but Mr. Swanson has mentioned evening use. The residents will rely on the police for any problems caused by the area.
Jack Russell, the head of the Echo Lake Owners Association, spoke to the environmental questions of the proposed site. He noted Bill Lawless, a member of the Echo Lake Owners Association and a former regulatory chief of the Army Corps of Engineers, had written to the Board. Mr. Russell listed several points to consider:
- The area in question is a wetland and the outlet of Echo Lake. The wetland is significant and aesthetically important.
- With regard to the Jesup Trail Path, Mr. Russell agreed the boardwalk is visually similar to the trail, but there are fundamental differences. The Jesup Trail is 90 years old and has been used by millions of people. The Jesup Trail area was not originally a wetland. The Harris boardwalk is on private land for private use, created so the landowner can establish lake access for subdivision owners.
- The construction process of the boardwalk raises unanswered questions. There will be fifteen sets of posts set in boxes. The boxes will go through the wetland to mineral soil. Mr. Russell voiced concern with regard to impact on wildlife. He voiced concern regarding the equipment to be used and where the materials would be stored. He asked where the removed materials would be used.
- The proposed boardwalk is a hazard to the wetland.
- The proposed boardwalk doesn’t deliver the amenity the landowners claim. The boardwalk ends near but not at the Denning Brook.
Sue Ferrante-Collier, an immediate abutter to the project, noted that until this meeting it had been unclear who the users would be. She noted the structure had been referred to as a “dock” and would like clarification. She mentioned that the float would need to be stored every winter, and she wondered where storage would be located. She said a three-foot wide path was not user-friendly for multiple people carrying kayaks or other small craft. She questioned where these craft would be stored. She echoed the concern about parking and doubted a private sign would deter all who may want to access the area.
Ms. Andrews inquired whether the landowners had written letters to the DEP. The landowners noted they had only just heard about this application.
Ken Kline, co-author of a book on the lakes and ponds in the area, stated the project threatens the ecological integrity of the area. A boardwalk and float in a wetland has more impact than the docks on the lake itself.
Mr. Moyse reminded the group that the application would be reviewed by the US Fish and Wildlife, and Inland Fisheries and Wildlife. He pointed out that the structure itself was relatively small. The boxes for the posts would be 46 inches in width, and the walk itself would be three feet. Ms. Randolph inquired about frost heaving, and whether the walk would rise and fall with the water levels. Mr. Moyse thought there would be some give.
Mr. Ashmore felt the first question was whether Denning Brook was in stream protection or not. Ms. Randolph noted that even if the stream is not currently in stream protection, it can be redefined by the State.
It was agreed to have CEO Keene inquire with MMA with regard to the status of stream protection for the area. Mr. Kiley asked for clarification regarding whether the Board can supersede the zoning districts defined by the Town based on scientific definitions.
Mr. Swanson noted that a path can be made to a stream. Ms. Randolph pointed out that the applicant wants to build a structure; it is more than a path.
Mr. Moyse noted that the definition might point to it being a stream, but he did not believe the Board could deem it a stream. Another entity would need to make that determination. Ms. Andrews felt that a zoning change would have to be voted on by the Town as well.
Ms. Keene read from Land Use Map Section 3.2, it noted - “Interpretation of District Boundaries – Unless otherwise set forth on the official land use map, district boundary lines or property lines, the center lines of streets, roads, and right of ways, and the boundary of the shoreland area as defined herein, where uncertainty exists as to the exact location of district boundary lines the Zoning Board of Appeals shall be the final authority as to the location.”
After further discussion, the Board agreed that the application was not complete.
Mr. Kiley moved, with Ms. Randolph seconding, to table the application until after the Board has heard from the DEP and the Army Corps of Engineers as well as CEO Keene regarding the stream issue. Motion approved 5-0.
Discussion ensued regarding legal representation at the Planning Board meetings.
Mr. Kiley moved, with Ms. Randoph seconding to adjourn the meeting. Motion approved 5-0. Meeting was adjourned at 9:16.
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