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Planning Board Meeting Minutes - 01/14/15 Section 6 Checklist Kindle
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:  026   LOT(S):  032      ZONE(S):  Shoreland Residential 1 (SR1)
PURPOSE:  Sections 3.4 & 6.C.7 – Marine Structures
SITE INSPECTION:  4:00 PM

Checklist
Land Use Zoning Ordinance of the Town of Mount Desert
** Note:        All Conclusions of Law are to be read as if they are prefaced by the words “Based upon said Findings of Fact …”

SECTION 6 STANDARDS FOR USES, PERMITS AND APPROVALS
FOR REVIEW BY PLANNING BOARD

6A      GENERAL PERFORMANCE STANDARDS


6A.1
Compatibility
See notes below
X See Application
N/A
6A.2
Erosion and Sedimentation Control
See notes below
X See Application
N/A
6A.3
Highway Safety
See notes below
X See Application
N/A
6A.4
Impact on Town Services
See notes below
X See Application
N/A
6A.5
Land Suitability
See notes below
X See Application
N/A
6A.6
Lighting - Outdoor
See notes below
X See Application
N/A
6A.7
Stormwater
See notes below
X See Application
N/A
6A.8
Vegetation
See notes below
X See Application
N/A
6A.9
Dust, Fumes, Vapors, Odors and Gases 
See notes below
X See Application
N/A
Findings of Fact(s):  The findings of fact are as presented by the applicant (see attached application and/or notes below).

VOTE:  Findings of Facts  (Kiley/Ashmore)  5-0                  
Conclusion of Law:  The proposed use is in compliance with all standards of Section 6A based on the findings of fact.
VOTE:   Conclusion of Law        (KileyAshmore)  5-0                    
Notes:                                                                                                  
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
6B      SPECIFIC PERFORMANCE STANDARDS FOR ACTIVITIES AND LAND USES


6B.1
Agriculture
See notes below
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Air Landing Sites
See notes below
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       N/A
6B.17
Wireless Communication Facilities
See notes below
ons(s):6B.______________________________               ____

VOTE:   Conclusion of Law         (Kiley/Randolph)  5-0         
Notes:                                                                                                  
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
6C      SHORELAND ZONING STANDARDS FOR REVIEW BY PLANNING BOARD

Land Use Standards. All land use activities within the shoreland zone shall conform with the following provisions, if
applicable.

        □ N/A:  Findings of Fact: The proposed lot is entirely outside the Shoreland Zone.
   VOTE:  Findings of Facts       -                                                    
                    Conclusion of Law: Section 6C is not applicable.
   VOTE:  Conclusion of Law       -                                                    

6C.1        Agriculture and Animal Husbandry        See notes below   See Application       N/A

6C.2
Archeological sites
See notes below
amond;font-size:9pt;color:#000000;">Essential Services
See notes below
e="text-align:left;">X See Application
N/A
6C.9
Roads and Driveways
See notes below
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6C.12   
Water Quality
See notes below
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VOTE:  Findings of Facts and Conclusion of Law     (Randolph/Ashmore)  5-0      

6C.1    Agriculture and Animal Husbandry                      
  • Manure spreading. All spreading of manure shall be accomplished in conformance with the Manure Utilization Guidelines published by the Maine Department of Agriculture on November 1, 2001, and the Nutrient Management Law (7 M.R.S.A.   Sections 4201-4209).
  • Manure storage. Manure shall not be stored or stockpiled within one hundred (100) feet, horizontal distance, of a great pond or within seventy-five (75) feet horizontal distance, of other water bodies, tributary streams, or wetlands.
  • Conservation plan.  Agricultural activities involving tillage of soil greater than forty thousand (40,000) square feet in surface area, within the shoreland zone shall require a Conservation Plan to be filed with the Planning Board.  
  • New tilling.  There shall be no new tilling of soil within one-hundred (100) feet, horizontal distance, of the normal high-water line of a great pond; within seventy-five (75) feet, horizontal distance, from other water bodies and coastal wetlands; nor within twenty-five (25) feet, horizontal distance, of tributary streams and freshwater wetlands.
  • Livestock grazing areas. Newly established livestock grazing areas shall not be permitted within one hundred (100) feet, horizontal distance, of the normal high- water line of a great pond; within seventy-five (75) feet, horizontal distance, of other water bodies and coastal wetlands, nor within twenty-five (25) feet, horizontal distance, of tributary streams and freshwater wetlands.
6C.2    Archaeological Sites          
Any proposed land use activity involving structural development or soil disturbance on or adjacent to sites listed on, or eligible to be listed on the National Register of Historic Places, as determined by the permitting authority, shall be submitted by the applicant to the Maine Historic Preservation Commission for review and comment, at least twenty (20) days prior to action being taken by the permitting authority.  The permitting authority shall consider comments received from the Commission prior to rendering a decision on the application.

6C.5   Essential Services       
1.      Limited to public ways. Where feasible, the installation of essential services shall be limited to existing public ways and existing service corridors.
□  N/A        □ Acceptable          □ Not Acceptable
2.      Exclusion from RP, Stream Protection. The installation of essential services, other than road-side distribution lines, is not allowed in a Resource Protection or Stream Protection District except to provide services to a permitted use within the Stream Protection District or except where the applicant demonstrates that no reasonable alternative exists.  Where allowed, such structures and facilities shall be located so as to minimize any adverse impacts on surrounding uses and resources, including visual impacts.
□  N/A        □ Acceptable          □ Not Acceptable
3.       Damaged lines. Damaged or destroyed public utility transmission and distribution lines, towers and relatedequipment may be replaced or reconstructed without a permit.
□  N/A        □ Acceptable          □ Not Acceptable
6C.6    Parking Areas                   
1.      Setback from water. Parking areas shall meet the shoreline and tributary stream setback requirements for        structures for the district in which such areas are located, except that in the Shoreland Commercial District   parking areas shall be set back at least twenty-five (25) feet, horizontal distance, from the shoreline.  The   setback requirement for parking areas serving public boat launching facilities in Districts other than the      Shoreland Commercial District shall be no less than fifty (50) feet, horizontal distance, from the shoreline or         tributary stream if the Planning Board finds that no other reasonable alternative exists further from the       shoreline or tributary stream.
□  N/A        □ Acceptable          □ Not Acceptable
2.      Adequate size. Parking areas shall be adequately sized for the proposed use and shall be designed to    prevent stormwater runoff from flowing directly into a water body, tributary stream or wetland and where        feasible, to retain all runoff on-site.
□  N/A        □ Acceptable          □ Not Acceptable
3.      Determination of size. In determining the appropriate size of proposed parking facilities, the following shall  apply:
1.   Typical parking space: Approximately ten (10) feet wide and twenty (20) feet long, except that parking spaces for a vehicle and boat trailer shall be forty (40) feet long. However, should the Planning Board find that there are special circumstances of topography, traffic access and safety, or environmental concerns, the Board may waive provisions of this section provided that such waiver does not have the effect of nullifying the purpose of this section.
2.   Internal travel aisles: Approximately twenty (20) feet wide.
□  N/A        □ Acceptable          □ Not Acceptable

6C.7    Marine and Freshwater Structure Performance Standards           
Marine Structure Definition.  Piers, docks, floats, wharves, bridges over ten (10) feet in length, and other marine structures extending over or below the normal high-water line of a water body or within a wetland.
Requirement. All marine structures shall require Conditional Use Approval of the Planning Board and compliance with the performance standards below before Conditional Use Approval will be granted.

The Planning Board may require the submission of an environmental impact assessment on natural areas and may require mitigation measures such as 1.) Changes in the design and/or location of the marine structure, and/or 2.) Changes in the magnitude of activities on the marine structure.
The performance standards are as follows:
Commercial and public marine structures are exempt from requirements 13 through 16.
        1.     Access from shore. Access from the shore shall be developed on soils appropriate for such use and                       measures shall be taken to minimize soil erosion both during and after construction.  Whenever possible,                access from the shore to the marine structure shall be placed on bedrock.  The Planning Board may                      require consultation with the local Soil and Water Conservation District Office.
          N/A       X Applicable, standard met        Applicable, standard not met
2.      Interference with existing uses and beaches, etc. The location of the marine structure shall not interfere with developed or natural beach areas, nor access to existing marine structures or points of public access, nor shall it unreasonably interfere with the use of other marine structures and landing places.
          N/A       X Applicable, standard met        Applicable, standard not met
        3.    Effect on fisheries, wildlife, etc. The marine structure shall be designed, sited, and constructed                       to minimize adverse impacts on fisheries, significant wildlife habitats or unique natural areas including,                      but not limited to:  fin fish and shellfish fisheries, salt marshes, eel grass beds, shorebird and nesting                      habitats, critical fish spawning and nursery areas.
          N/A        X Applicable, standard met       Applicable, standard not met
        4.    Size. The facility shall be no larger in dimension than necessary to carry on the activity and be                        consistent with the surrounding character and uses of the area. A temporary pier, dock or wharf shall                   not be wider than six feet for non-commercial uses.
          N/A        X Applicable, standard met       Applicable, standard not met
5.   No new structures. No new structure shall be built on, over or abutting a pier, wharf, dock or other structure extending below the normal high-water line of a water body or within a wetland unless the structure requires direct access to the water body or wetland as an operational necessity.
          N/A        X Applicable, standard met       Applicable, standard not met
        6.    New permanent piers and docks. New permanent piers and docks on non-tidal waters shall                   not be permitted unless it is clearly demonstrated to the Planning Board that a temporary pier or dock is               not feasible, and a permit has been obtained from the Department of Environmental Protection,                   pursuant to the Natural Resources Protection Act.
        X  N/A         Applicable, standard met       Applicable, standard not met
        7.   Conversion to dwellings. No existing structures built on, over or abutting a pier, dock, wharf or                other structure extending below the normal high-water line of a water body or within a wetland shall be                 converted to residential dwelling units in any district.
        X  N/A         Applicable, standard met       Applicable, standard not met
        8.   Height limit. Except in the Shoreland Commercial District, structures built on, over or abutting a                       pier, dock, wharf or other structure extending below the normal high-water line of a water body or within              a  wetland shall not exceed twenty (20) feet in height above the pier, wharf, dock or other structure.
        X  N/A         Applicable, standard met       Applicable, standard not met
  • Interference with natural flow. Interference with the natural flow of any surface or subsurface waters shall be minimized during the construction and subsequent use of the marine structure.
          N/A        X Applicable, standard met       Applicable, standard not met
  • Encroachment on navigation. The marine structure shall be designed, sited, and constructed so as not to encroach upon officially designated navigation channels.
          N/A        X Applicable, standard met       Applicable, standard not met
  • Mooring area. The Planning Board shall request comment from the Harbor Master in cases where the applicant proposes to build a marine structure in an officially designated mooring area.
          N/A        X Applicable, standard met       Applicable, standard not met
  • Dimensional limits. The marine structure shall comply with the dimensional limits listed below. The facility shall be no larger than necessary to accomplish the purposes for which it is designed.  Its size and construction shall not change the intensity of the adjoining land use, and by no means shall exceed a total distance of more than one-third the width of the coastal wetland or water body, when proposed for coastal or inland waters.  Notwithstanding the dimensional limits below, in areas where the horizontal distance from the normal high-water line to the mean lower low water is in excess of 160 feet, no permanent structure will be allowed seaward of the upland edge of a coastal wetland..
Marine Structure
Dimensional Requirement
Proposed Dimensions
Maximum length of entire marine structure (i.e. pier, ramp and float combined)
225 feet 1
Maximum length of all permanent structures
150 feet
Maximum length of all non-permanent structures (i.e. ramp and float)
75 feet 2
Maximum width of pier walkway
6 feet
Maximum width of ramp
6 feet
Maximum square footage of floats
400 square feet
Maximum square footage of floats for communal marine structures (see 14 and 15 below)
800 square feet
1  Or length needed to obtain six feet of depth of water at mean lower low water, whichever is less.
2  In cases where no permanent structure is proposed the applicant will be permitted to install a ramp and float extending no further than 75 feet into the water body.

          N/A        X Applicable, standard met       Applicable, standard not met
  • Additional square footage for floats. If two or more shorefront lot owners choose to hare a communal marine structure the applicant may request additional square footage of floats.
          N/A        X Applicable, standard met       Applicable, standard not met
  • Communal dock. When proposed by the applicant, new subdivisions may provide a communal dock            in lieu of the development of docks on individual lots. The applicant may request additional square footage of floats provided a demonstrated need can be shown.
        X  N/A         Applicable, standard met       Applicable, standard not met
  • Limit on number. There shall be no more than one marine structure on a lot.     
  N/A        X Applicable, standard met       Applicable, standard not met
6C.9    Roads and Driveways     
The following standards shall apply to the construction of roads and/or driveways and drainage systems, culverts and other related features.
1.      Setback, Roads and driveways shall be set back at least one-hundred (100) feet, horizontal distance, from the normal high-water line of a great pond, and seventy-five (75) feet, horizontal distance from the normal high-water line of other water bodies, tributary streams, or the upland edge of a wetland unless no reasonable alternative exists as determined by the Planning Board.  If no other reasonable alternative exists, the road and/or driveway setback requirement shall be no less than fifty (50) feet, horizontal distance, upon clear showing by the applicant that appropriate techniques will be used to prevent sedimentation of the water body, tributary stream, or wetland.  Such techniques may include, but are not       limited to, the installation of settling basins, and/or the effective use of additional ditch relief culverts and turnouts placed so as to avoid sedimentation of the water body, tributary stream, or wetland.
Steep slopes. On slopes of greater than twenty (20) percent the road and/or driveway setback shall be increased by ten (10) feet, horizontal distance, for each five (5) percent increase in slope above twenty         (20) percent.
        Section 6C.9.1 neither applies to approaches to water crossings or to roads or driveways that provide access    to permitted structures and facilities located nearer to the shoreline or tributary stream due to an    operational necessity, excluding temporary docks for recreational uses.  Roads and driveways providing  access to permitted structures within the setback area shall comply fully with the requirements of Section      6C.10.1 except for that portion of the road or driveway necessary for direct access to the structure.
          N/A         Applicable, standard met     Applicable, standard not met
2.      Existing public roads. Existing public roads may be expanded within the legal road right of way         regardless of their setback from a water body, tributary stream or wetland.
          N/A         Applicable, standard met     Applicable, standard not met
3.      New roads, driveways, prohibited in RP and SP. New roads and driveways are prohibited in the    Resource Protection and Stream Protection Districts except that the Planning Board may grant a permit to        construct a road or driveway to provide access to permitted uses within the Resource Protection and Stream      Protection Districts in accordance with Section 7.5.3.  When a road or driveway is permitted in a Resource      Protection District the road and/or driveway shall be set back as far as        practicable from the normal high-       water line of a water body, tributary stream, or upland edge of a wetland.  
          N/A         Applicable, standard met     Applicable, standard not met
4.      Steepness. Road and driveway banks shall be no steeper than a slope of two (2) horizontal to one (1)    vertical, and shall be graded and stabilized in accordance with the provisions for erosion and  sedimentation control contained in Section 6C.
          N/A         Applicable, standard met     Applicable, standard not met
5.      Grades. Road and driveway grades shall be no greater than ten (10) percent except for segments of less  than two hundred (200) feet.
          N/A         Applicable, standard met     Applicable, standard not met
6.      Drainage to unscarified strip. In order to prevent road and driveway surface drainage from directly entering    water bodies, tributary streams or wetlands, roads and driveways shall be designed, constructed, and maintained to empty onto an unscarified buffer strip at least (50) feet plus two times the average slope, in width between the outflow point of the ditch or culvert and the normal high-water     line of a water body, tributary stream, or upland edge of a wetland.
        Surface drainage which is directed to an unscarified buffer strip       shall be diffused or spread out to promote      infiltration of the runoff and to minimize channelized flow of the drainage through the buffer strip.
          N/A         Applicable, standard met     Applicable, standard not met
7.      Ditch relief. Ditch relief (cross drainage) culverts, drainage dips and water turnouts shall be installed in a  manner effective in directing drainage onto unscarified buffer strips before the flow gains sufficient volume or        head to erode the road, driveway, or ditch. To accomplish this, the following shall apply:
1.    Ditch relief culverts. Ditch relief culverts, drainage dips and associated water turnouts shall be spaced along the road or driveway at intervals no greater than indicated in the following table:
                                Grade                           Spacing
                                  (Percent)                              (Feet)
        
                                 0-2                               250
                                3-5                            200-135
                                6-10                           100-80
                                11-15                            80-60
                                16-20                            60-45
  •                                     40
2.    Drainage dips. Drainage dips may be used in place of ditch relief culverts only where the grade is ten             (10) percent or less.
  • Slopes greater than 10%. On sections having slopes greater than ten (10) percent, ditch relief   culverts shall be placed at approximately a thirty (30) degree angle down slope from a line perpendicular to the centerline of the road or driveway.
  • Culvert size. Ditch relief culverts shall be sufficiently sized and properly installed in order to allow for       effective functioning and their inlet and outlet ends shall be stabilized with appropriate materials.
          N/A         Applicable, standard met     Applicable, standard not met
  • Maintenance. Ditches, culverts, bridges, dips, water turnouts and other storm water runoff control installations associated with roads and driveways shall be maintained on a regular basis to assure effective functioning.
6C.11   Timber Harvesting       
1.      Resource Protection and Stream Protection Districts. In the Resource Protection and Stream      Protection Districts, timber harvesting is prohibited.
         N/A          Applicable, standard met       Applicable, standard not met
2.      Areas other than Resource Protection or Stream Protection. Except in areas as described in      Section         6C.13.1 above, timber harvesting shall conform with the following provisions:
1.      40% limit. Selective cutting of no more than forty (40) percent of the total volume of trees four (4) inches or more in diameter measured at 4 1/2 feet above ground level on any lot in any ten (10) year period is permitted.  In addition:
1.   No clearcuts within shoreline setback. Within one-hundred (100) feet, horizontal distance, of the normal high-water line of a great pond, and within seventy-five (75) feet, horizontal distance, of the normal high-water line of other water bodies, tributary streams, or the upland edge of a wetland, there shall be no clear cut openings and a well-distributed stand of trees and other vegetation, including existing ground cover shall be maintained.
2.    Cleared openings farther than shoreline setback. At distances greater than one-hundred (100) feet, horizontal distance, of a great pond, and greater than seventy-five (75) feet, horizontal distance, of the normal high-water line of other water bodies, tributary streams or the upland edge of a wetland, harvesting operations shall not create single clear cut openings greater than ten-thousand (10,000) square feet in the forest canopy.  Where such openings exceed five-thousand (5000) square feet they shall be at least one hundred (100) feet, horizontal distance, apart.  Such clear cut openings shall be included in the calculation of total volume removal.  Volume may be considered to be equivalent to basal area.
1.      Harvesting in excess of 40%. Timber harvesting operations exceeding the 40% limitation in Section 6C.13.2.1 above may be allowed by the planning board upon a clear showing, including a forest management plan signed by a Maine licensed professional forester, that such an exception is necessary for good forest management and will be carried out in accordance with the purposes of this Ordinance. The planning board shall notify the Commissioner of the Department of Environmental Protection of each exception allowed, within fourteen (14) days of the planning board's decision.
         N/A          Applicable, standard met     Applicable, standard not met
3.  Accumulation of slash. No accumulation of slash shall be left within fifty (50) feet, horizontal            distance, of the normal high-water line of a water body.  In all other areas slash shall either be removed         or disposed of in such a manner that it lies on the ground and no part thereof extends more than four (4) feet above the ground.  Any debris that falls below the normal high-water line of a water body or         tributary stream shall be removed.
             N/A      Applicable, standard met        Applicable, standard not met
4.  Stream channel travel prohibited. Timber harvesting equipment shall not use stream channels as travel routes except when:
                1.      Surface waters are frozen; and
                2.      The activity will not result in any ground disturbance.
                       N/A             Applicable, standard met        Applicable, standard not met
5.  Crossing of flowing water. All crossings of flowing water shall require a bridge or culvert, except in areas with low banks and channel beds which are composed of gravel, rock or similar hard surface       which would not be eroded or otherwise damaged.  
            N/A              Applicable, standard met          Applicable, standard not met
  • Skid trail runoff. Skid trail approaches to water crossings shall be located and designed so as to prevent water runoff from directly entering the water body or tributary stream.  Upon completion of timber harvesting, temporary bridges and culverts shall be removed and areas of exposed soil re-vegetated.
                     N/A              Applicable, standard met       Applicable, standard not met
  • Soil exposure setback. Except for water crossings, skid trails and other sites where the operation of machinery used in timber harvesting results in the exposure of mineral soil shall be located such that an unscarified strip of vegetation of at least seventy-five (75) feet, horizontal distance, in width for slopes up to ten (10) percent shall be retained between the exposed mineral soil and the normal high-water line of a water body or upland edge of a wetland.  For each ten (10) percent increase in slope, the unscarified strip shall be increased by twenty (20) feet, horizontal distance.  The provisions of this paragraph apply only to a face sloping toward the water body or wetland, provided, however, that no portion of such exposed mineral soil on a back face shall be closer than twenty five (25) feet, horizontal distance, from the normal high-water line of a water body or upland edge of a wetland.
            N/A              Applicable, standard met       Applicable, standard not met
6C.12   Water Quality   
No activity shall deposit on or into the ground or discharge to the waters of the State any pollutant that, by itself or in combination with other activities or substances, will impair designated uses or the water classification of the water body, tributary stream or wetland.
 N/A          Applicable, standard met       Applicable, standard not met

Section 6C.7_________  Findings of Fact(s)  See Application                                     

                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
        VOTE:  Findings of Fact  (Randolph/Ashmore)  5-0                                                
Conclusion of Law:  Based on Findings of Fact, Standard Met   (Randolph/Ashmore)  5-0           
                                                                                                        
FOR BOARD USE
CONDITIONAL USE PERMIT/approval

APPLICATION:            030-2014                                        

PERMIT CONDITIONS:  In addition to having all applicable federal, state, and town permits be in place prior to any construction, the following conditions apply:

                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
                                                                                                        
(Andrews/Kiley)  5-0

APPLICATION
APPROVED:       1/14/2015               DENIED:                 
(Date)                                          (Date)

NOTE:    The holder of a Conditional Use Permit/Approval must construct and operate the approved conditional use as applied for and as represented during the permitting process to the Planning Board.

NOTE:    The Land Use Zoning Ordinance requires that a Conditional Use Permit/Approval must be undertaken within one year from the date of approval, or a new permit must be obtained.

THE MINUTES OF THIS PUBLIC HEARING CONSTITUTE A PART OF THE RECORD FOR THIS MATTER


SIGNATURES OF ALL VOTING BOARD MEMBERS:

        Ellen Brawley                                                   Dennis Kiley                    
        Lili Andrews                                                    Meredith Randolph               
        David Ashmore                                             ORIGINAL SIGNATURES ON FILE