Conditional Use Approval Application # 009-2013
OWNER: Richard M. Savage III
APPLICANT(S): Bay Communications II, LLC/Mark Cook
AGENT(S): Jonathan Springer, Esq.; P. Andrew Hamilton, Eaton Peabody, Esq.
LOCATION: 26/28 Gatehouse Road, Northeast Harbor
TAX MAP: 005 LOT: 009-002 ZONE(S): Residential 2 (R2)
PURPOSE: Section 6B.17 Wireless Communication Facility – Cell Tower
SITE INSPECTION: 2:00 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
6A GENERAL PERFORMANCE STANDARDS
6A. 1 Compatibility The proposed use shall be compatible with the permitted uses within the district in which it is located as measured in terms of its:
Physical Size:
Findings of Fact(s): Proposed tower is 125’ tall______
Visual Impact:
Findings of Fact(s): Visible from cemetery, visible from 198 up to Gatehouse Road,____
Visible from occasional vantage point in park, see Steele letter dated 02/05/2014,___
Friends of Acadia letter dated 02/27/2014, Kirk Mohney, Deputy State Preserv. Office letter dated 02/26/2014
Proximity to other structures:
Findings of Fact(s): 300’ to Mr. Savage’s residence________________________
1000’ to other residences
Density of Development:
Findings of Fact(s): Area is not densely developed__
VOTE: Findings of Facts - _Kiley/Hanley (3-0-1 – Andrews in Abstention)_
Conclusion of Law for s. 6A. 1 Compatibility: The proposed use will / will not be compatible with the permitted uses within the district in which it is located as measured in terms of its physical size, visual impact, proximity to other structures, and density of development, based on the findings of facts.
VOTE: Conclusion of Law Kiley/Hanley (3-0-1 - Andrews in Abstention)
6A. 2 Erosion and Sedimentation Control
6A2.1-5 Soil Erosion Plan for unstabilized soil: Written soil erosion and sedimentation control plan required.
Findings of Fact(s): CEO has / has not received a satisfactory written soil erosion and sedimentation plan, which addresses: development to fit topography, erosion control measures, stabilization of bare ground, and drainage ways and outlets.
6A2.6 Removal of sand or gravel. Removal of sand or gravel from natural beaches or the disruption or removal of buffer strips that protect fragile land areas immediately behind a shoreline and on neighboring properties is prohibited.
X N/A ;
6A. 3 Highway Safety: The proposed use shall not cause unreasonable congestion on highways or public roads, or unsafe conditions with respect to the use of highways or public roads existing or proposed. Sufficient off-street parking shall be available.
Findings of Fact(s):
Highways or public roads: Minimal vehicle usage
Off-street parking: parking space provided
Conclusion of Law: Standards of Sections 6A.3 have/have not been met, based on findings of fact VOTE: Conclusion of Law Kiley/Hanley (4-0)
6A. 4 Impact on Town Services. The proposed use shall not unduly burden the capacity of the Town's facilities, including public water and sewage, or the ability of the Town to provide essential public services (such as, but not limited to, schools, fire and police protection, refuse collection, and parking) to its residents and visitors.
Findings of Fact(s): No use of water, sewer, school. Facility will be fenced and locked at
all times
VOTE: Findings of Facts Hanley/Kiley (4-0
Conclusion of Law: The proposed use will / will not unduly burden the capacity of the Town's facilities, based on above Findings of Fact.
VOTE: Conclusion of Law Hanley/Kiley (4-0)_______
6A. 5 Land Suitability: All uses to be on suitable soils. All land uses shall be located on soils in or upon which the proposed uses or structures can be established or maintained without causing adverse environmental impacts, including severe erosion, mass soil movement, improper drainage, and water pollution, whether during or after construction.
Findings of Fact(s): Geotechnical report dated 1/14/2014 supports suitable soils
VOTE: Findings of Facts Hanley/Kiley (4-0)
Conclusion of Law: Proposed use will / will not be located on soils so as to cause adverse environmental impacts, including severe erosion, mass soil movement, and water pollution, whether during or after construction based on findings of fact.
VOTE: Conclusion of Law Hanley/Kiley (4-0)_______
6A. 6 Lighting – Outdoor
1. Full cutoff. All lights greater than *1800 lumens (a 100 watt incandescent light produces 1800 lumens) shall be shielded to direct all light towards the ground.
2. Light trespass. All light shall be directed away from adjacent properties. The light sources in flood and spot lights shall not be directly visible from adjacent properties. High intensity light sources shall not be directly visible to motorists on public roads.
3. Excessive Lighting may not be used to direct attention away from existing business and community lighting.
1. The lighting of structural canopies such as gas station canopies shall not be used to attract attention to the business. Areas under structural canopies shall be illuminated so that the uniformity ratio (ratio of average to minimum illumination) shall be no greater than 5:1 with an average illumination level of not more than 30 foot candles.
2. Light fixtures located on structural canopies shall be mounted so that the lens cover is recessed or flush with the ceiling of the canopy.
Findings of Fact(s): Subsection 2 and 3 apply – only lighting will be small Light Fixture: Exterior Quartz 60W/250V light bulbs. Lighting will be directed down and away from adjacent properties.____________ See site plan
VOTE: Findings of Facts Hanley/Kiley (4-0)____
Conclusion of Law: Based on above Findings of Fact standards are met__
VOTE: Conclusion of Law Hanley/Kiley (4-0)_______
6A. 7 Stormwater: For development on all lots the applicant shall submit a Stormwater Management Plan which demonstrates to the satisfaction of the Code Enforcement Officer that stormwater runoff has been minimized, and will not excessively exceed natural predevelopment conditions.
Findings of Fact(s): CEO has / has not received a storm water plan which meets the standards of Section 6A.7.
VOTE: Findings of Facts Kiley/Hanley (4-0)
Conclusion of Law: Standards of Section 6A.7 have / have not been met based on Findings of Fact
VOTE: Conclusion of Law Kiley/Hanley (4-0)_______
6A. 8 Vegetation
1. Clearing. Clearing of trees or conversion to other vegetation is allowed for permitted construction provided that:
- Appropriate measures are taken, if necessary, to prevent erosion when activity is undertaken.
- The activity is in conformity with State Mandated Shoreland Zoning.
2. Tree removal near town or state roads. Removal of more than 25% of the trees within 25 feet of any town or state road in any 12 month period (except for those required to complete permitted construction) shall require a Conditional Use Approval of the Planning Board. Other woody plants must be retained or replaced with native species.
- Slash. No accumulation of slash shall be left within 50 feet of any town or state road or within 50 feet of the normal high water mark of any waterbody. Slash shall be disposed of so that no part extends more than 4 feet above the ground.
4. CEO Permit. A CEO Permit is required for cutting timber larger than 4 inches in diameter measured 4 ½ feet above ground when the total amount to be cut is greater than 10 cords but less than 50 cords in any one year period.
5. Conditional Use Approval. Conditional Use Approval is required from the Planning Board for cutting timber larger than 4 inches in diameter measured 4 ½ feet above ground when the total amount to be cut is 50 cords or more in any one year period.
Findings of Fact(s): Tree removal limited to construction of access road and facility
VOTE: Findings of Facts Kiley/Hanley (4-0)____
Conclusion of Law: Based on Findings of Fact, standards are met
VOTE: Conclusion of Law Kiley/Hanley (4-0)
6A. 9 Preserving the Town's Character The proposed use shall be consistent with protecting the general character of the Town, conserving the natural beauty of the area and shall not tend to change the historical or cultural character of the neighborhood. ~Such use shall be similar to a use specified as P, CEO or C in Section 3.4 and shall be in accord with the Comprehensive Plan.
Findings of Fact(s): Site near main Northeast Harbor roads and can provide improved wireless coverage to village and to adjacent parts of Acadia National Park______________
VOTE: Findings of Facts Hanley/Kiley (3-0-1 Andrews in Abstention)
Conclusion of Law: The proposed use will / will not be consistent with protecting the general character of the Town, will / will not be consistent with conserving the natural beauty of the area and will not / will tend to change the historical or cultural character of the neighborhood. ~Such use will / will not be similar to a use specified as P, CEO or C in Section 3.4 and will / will not be in accord with the Comprehensive Plan.
VOTE: Conclusion of Law Hanley/Kiley (3-0-1 Andrews in Abstention)_____
6A. 10 Nuisances
Notwithstanding any other standard in this section, the Planning Board shall not issue any Conditional Use Approval for any proposed use which if established would be obnoxious or offensive by reason of:
Odors; X N/A ;color:#000000;"> ter" style="line-height:150%;vertical-align:150%;text-align:center;">FOR REVIEW BY PLANNING BOARD
6B.1 Agriculture X N/A none of the specific activities or land uses described in section 6B, except for Applicable Sections(s) noted above.
VOTE: Findings of Facts Hanley/Kiley (4-0)
Conclusion of Law: Section 6B is not applicable, except for Sections(s):6B.17
VOTE: Conclusion of Law Hanley/Kiley (4-0)
6B. 1 Agriculture In non-shoreland areas, all spreading or disposal 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). In shoreland areas, all spreading or disposal of manure shall comply with Section 6C.1.
6B. 2 Air Landing Sites No air landing site shall be developed or used for such purpose without Conditional Use Approval of the Planning Board.
6B. 7 Excavation (other than gravel pits) or filling Excavation or filling shall be permitted in any district only to the extent such activities are essential or are incidental to any permitted, conditional, or other lawful use. Filling, dumping, or excavation of any matter of ten (10) to less than fifty (50) cubic yards is allowed, except in the Stream Protection District where a Code Enforcement Officer permit is required, and is prohibited in the Resource Protection District. Excavation and filling, greater than fifty
(50) cubic yards shall require Conditional Use Approval of the Planning Board, and is prohibited in the Resource Protection District. Appropriate measures shall be taken to prevent erosion during or after the filling or excavation, and the applicable standards of Section 6B.13 shall be complied with. All fill permits are approved for a twelve (12) month period only and expire twelve (12) months from the date of approval. The Code Enforcement Officer may renew either the Code Enforcement Officer permit or the Conditional Use Approval for additional twelve (12) month periods.
6B. 8 Fences and walls Such fences or walls shall not unduly restrict scenic views. The structural side of the fence shall not face the public view.
1. A Code Enforcement Officer Permit may be issued for solid fences or walls up to six (6) feet in height provided that:
1. A setback of six (6) feet is maintained from roads, sidewalks, and right-of-ways.
2. It does not obstruct highway visibility.
3. A plan for vegetative screening, in the six (6) foot setback area, is provided that produces a minimum of twenty (20) percent cover of the fence or wall area. The plan must be implemented and maintained.
4. Such fences or walls shall not unduly restrict scenic views.
5. The structural side of the fence shall not face the public view.
6B. 12 Mineral Exploration and Extraction Mineral exploration to determine the nature or extent of mineral resources shall be accomplished by hand sampling, test boring, or other methods which create minimal disturbance.
Approval of the Planning Board shall be required for mineral exploration that exceeds the above limitations.
6B.15 Sign Regulations
Size limit. No sign (except banners) shall exceed thirty-two (32) square feet in area. Nor shall the aggregate of all signs on site pertaining to any business exceed thirty-two (32) square feet in area unless Conditional Use Approval of the Planning Board is obtained. In shoreland areas, no sign shall extend higher than twenty (20) feet above the ground.
Roof signs. Roof signs shall not be permitted except after the issuance of Conditional Use Approval of the Planning Board. No roof sign shall extend above the roof line of the building.
6B.17 Wireless Communication Facilities:
6B.17.2 Exemptions. The following activities and structures are exempt from a Conditional Use Approval:
- A ground, building- or tower-mounted antenna, operated by a federally licensed amateur radio operator as part of the Amateur Radio Service, which is not licensed or used for any commercial purpose.
-left:108px;padding-right:40px;margin-top:12px;text-align:left;">d" size="+0" color="#000000" style="font-family:Garamond;font-size:9pt;color:#000000;">6B.17.3 Space requirements. The maximum height of any tower shall not exceed 125 feet, including antenna arrays and other attachments, subject to the approval of the Planning Board with possible conditions and restrictions to meet the purpose of this chapter.
shapes encompassing the entire perimeters of the array and all of its parts and attachments.
nding lot owners, and all setback requirements are met. This requirement does not apply to towers and antennas that are exempted in Section 8 – Structure Definition.
anchors, overhead lines, masts, etc., shall be located in the required district setback or in any required buffer area both on the ground or in the air space above the ground.
00000;">X N/A "> Other standards met as shown on plan
VOTE: Conclusion of Law Hanley/Kiley (4-0)
6B.17.7 Co-location requirements.
- Existing towers. Applicants for Conditional Use Approval for a new communications tower must send written notice by certified first-class United States Mail to all other owners of communications towers in the Town and all licensed communications providers utilizing existing towers, regardless of tower location, to service the town, stating their siting needs and/or co-location capabilities in an effort to meet the town co-location requirement. Evidence that this notice requirement has been fulfilled shall be submitted to the Planning Board and shall include a name and address list, copy of the notice which was sent, and a statement, under oath, that the notices were sent as required. An application for a new wireless communications tower must include evidence that existing or previously approved towers cannot accommodate the communications equipment (antennas, cables, etc.) planned for the proposed tower. Such evidence would be:
1. Planned, necessary equipment would exceed the structural capacity of existing and approved towers, considering the existing and planned use of those towers, and existing and approved towers cannot be reinforced to accommodate planned or equivalent equipment.
2. Planned equipment will cause electromagnetic frequency interference with other existing or planned equipment for that tower and the interference cannot be prevented or mitigated.
3. Existing or approved towers do not have space on which planned equipment can be placed so it can function effectively.
4. Other documented reasons that make it technically or financially unfeasible to place the equipment planned by the applicant on existing and approved towers.
X Acceptable ze="+0" color="#000000" style="font-family:Garamond;font-size:9pt;color:#000000;">6B.17.8 Submissions. In addition to all of the relevant Conditional Use Approval Application submission requirements, the following submissions, in a form acceptable to the Planning Board shall be required, unless waived by the Planning Board:
(a)~ A report from a professional engineer registered in the State of Maine that describes the communications tower, the technical reasons for the tower design and the capacity of the tower, including the number(s), type(s) and volume of antenna(s) that it can accommodate and the basis for the calculation of capacity.
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(d)~ Detail of the tower base or method of attachment to a structure. If the facility will be attached to an existing building or structure, measurements and elevations of the structure shall be provided.
00000;"> A visual impact assessment, which shall include a photo montage, field mockup, or other techniques, shall be prepared by or on behalf of the applicant who identifies the potential visual impacts at design capacity, of the proposed facility. Consideration shall be given to views from public areas, as well as from private residences and from Acadia National Park, archaeological and historic
resources, including historic districts, areas and structures, specifically those listed in the National register of Historic Places, or eligible for inclusion. The analysis of the impact on historical and archaeological resources shall meet the requirements of the Maine State Historic Preservation Officer in his/her review capacity for the FCC. The overall analysis shall assess the cumulative impacts of the proposed facility and other existing and foreseeable communications facilities in the area and shall identify and include all feasible mitigation measures consistent with the technological requirements of the proposed communications service.
te.
="left" style="text-indent:36px;padding-left:72px;padding-right:40px;text-align:left;">d, or have been waived.
Standard has been met for submissions and in form acceptable
VOTE: Conclusion of Law Hanley/Kiley (4-0)
6B.17.9 Design Standards. The following design standards shall be met by the applicant. The Planning Board, as part of the Conditional Use Approval review process, shall determine if the applicant has complied with these standards. All communications facilities shall be designed to blend into the surrounding environment to the greatest extent feasible. To this end, all of the following measures shall be implemented:
(a)~ Towers shall be constructed of metal or other nonflammable material unless specifically waived by the Planning Board due to technical or engineering reasons.
="_blank">(c)~ Accessory facilities shall be constructed out of no reflective exterior materials with earth toned colors or shall be placed underground, if possible.
eptable p;
B – accessory facilities located at base of pole within base compound – see Sabre report
C – accessory facilities above ground, non-reflective, earth-toned – see site plan
D – accessory facilities will be no taller than one story in height – see site plan
E – all poles, towers, antenna supports shall be painted and repainted with dark green matte
Finish paint to match surrounding vegetation. Accessory building to be earth-toned
______F – No findings of particular sensitivity were made_
______G – Security fence 6 feet addresses security______________________________________
______H – only security lighting directed toward the ground______________________________
______I – no commercial advertising signs will be permitted______________________________
______J – tower does not require use of guy wires______________________________________
VOTE: Findings of Facts Hanley/Kiley (4-0)
Conclusion of Law: All communications facilities will/will not be designed to blend into the surrounding environment to the greatest extent feasible.
VOTE: Conclusion of Law Hanley/Kiley (4-0)
6B.17.10 Location. All communications facilities shall be located so as to minimize their visibility and to minimize the total number of towers in the Town. The following measures shall guide the location:
(a)~ Communications facilities shall not be sited in areas of high visibility, as determined by the Planning Board, to meet the purpose of this subsection unless the facility is designed to minimize its profile by blending with the surrounding existing natural and man-made environment in such a manner as to be effectively unnoticeable.
"font-family:Garamond;font-size:9pt;">(c)~ No facility shall be located within areas two hundred fifty (250) feet of the normal high-water line of any great pond or salt water body.
aw: Based on above finding, standards are met__________
VOTE: Conclusion of Law Kiley/Hanley (4-0)
6B.17.11 Standards. In addition to the criteria and standards, listed in Section 6 of the Land Use Zoning Ordinance these additional criteria and standards shall be utilized by the Planning Board in reviewing applications for Conditional Use Approval for proposed communications facilities:
(a)~ Mitigation measures have been utilized to screen antennas and towers from view from public rights-of-way or scenic vistas, either by landscaping, fencing or other architectural screening.
Use green slatting in fence.
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VOTE: Findings of Facts Kiley/Hanley (4-0)
Conclusion of Law: based on above Findings of Fact, standards are met
VOTE: Conclusion of Law Kiley/Hanley (4-0)
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.
X N/A: Findings of Fact: The proposed lot is entirely outside the Shoreland Zone.
VOTE: Findings of Facts Hanley/Kiley (4-0_)
Conclusion of Law: Section 6C is not applicable.
VOTE: Conclusion of Law Hanley/Kiley (4-0_)______
FOR BOARD USE
CONDITIONAL USE PERMIT/approval
APPLICATION: 009-2013________
PERMIT CONDITIONS: In addition to having all applicable federal, state, and town permits be in place prior to any construction, the following conditions apply:
Permit by Rule from DEP for stream crossing to be obtained;
CEO to determine driveway standards met;___
Tower and antennas to be painted matte dark green; dark green slatting in compound
Fencing to be provided;
Removal bond to be provided that is in form and amount satisfactory to Town Manager
Kiley/Hanley (3-0-1 Andrews in Abstention)
APPLICATION
APPROVED: __02/26/2014 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.
MINUTES OF THIS PUBLIC HEARING CONSTITUTE A PART OF THE RECORD FOR THIS MATTER
SIGNATURES OF ALL VOTING BOARD MEMBERS:
William Hanley
Ellen T. Brawley
Dennis Kiley Original signatures on file
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