Town of Mount Desert Planning Board
Planning Board Meeting Minutes
Meeting Room, Town Hall
6:00 pm, July 22, 2014
Public Present
John Fehlauer, Ed Bearor, Stephen Salsbury, Paul MacQuinn, M. Christine Breedlove, C.H. Breedlove, Pam Painter, Jan Coates, Dan Coates, Alan L. Drew, III, Joseph M. Murphy, Judith Aylen, Laurie Shencavitz, Gerald Shencavitz, Jean Gilpin, George Gilpin, Dianna H. Young, Anne S. Funderburk, Daniel A. Pileggi, Peter Aylen, Virginia Heffner Treweek, Claire Woolfolk, Jean Travers, Jeff Gammelin, Dick Broom, Katrina Carter, Chris Buczko
Board Members Present
David Ashmore, Bill Hanley, Chairman Ellen Brawley, Lili Andrews, and Dennis Kiley
Also present were CEO Kimberly Keene, Attorney for the Board James Collier, and Recording Secretary Heidi Smallidge.
The meeting was called to order at 6:00 p.m. by Chairman Brawley.
Chairman Brawley declared that she had a bias regarding the issue to be discussed and requested recusal from the Board. Ms. Andrews moved, with Mr. Hanley seconding, to accept Chairman Brawley’s recusal. Motion approved 4-0. Chairman Brawley left the meeting.
In Chairman Brawley’s absence, Ms. Andrews as Vice Chairperson continued the meeting. She noted Mr. Hanley would act as recording secretary. She noted the other voting members.
- Quarrying License Application:
Completeness Review:
- Conditional Use Approval Application #001-2014
OWNER(S): Harold MacQuinn, Inc.
OPERATOR(S): Fresh Water Stone & Brickwork, Inc.
AGENT(S): Steven Salsbury, Herrick & Salsbury, Inc.
LEGAL REPRESENTATION: Edmond J. Bearor, Rudman Winchell Counselors at Law
LOCATION: Off Crane Road, Hall Quarry
TAX MAP: 007 LOT(S): 075 ZONE(S): Residential 2
PURPOSE: To review completeness of quarrying license application
It was noted that public notice is not necessary for a completeness review.
Attorney Collier stated that the initial question was whether or not the applicant must be a lawfully pre-existing use. He added that the applicant submitted to him materials regarding the operation in question.
Mr. Hanley asked whether there was a required time period that defines what is considered to be existing. Attorney Collier noted that the Mount Desert ordinance required activity that does not have a break in operations lasting longer than 18 months; that period of time was reduced to 12 months in approximately 2009.
Vice Chairperson Andrews pointed out that the Board received information from those opposing the quarry questioning whether the quarry could be considered grandfathered. Attorney Collier stated that procedurally the applicant should have time to respond to the information submitted. If it is found that the applicant does not lawfully exist because they have not maintained continued operations then they are not able to apply for a license. Alternatively, the Board might want to look through the evidence submitted to determine operation. In which case, Mr. Collier would urge the Board to continue the meeting to another time to allow for a review of additional submissions.
Attorney Bearor, representing Harold MacQuinn, Inc., stated that MacQuinn had been operating out of the quarry for the last few years with the Town’s knowledge. Attorney Bearor noted that the new quarrying ordinance does not use the term “non-conforming”, therefore in his opinion a lawful non-conforming use is not a point of contention. Mr. Bearor quoted Article 6 of the quarrying ordinance: “the owner of an active, unlicensed quarry shall apply for a permit within 180 days of the effective date of this ordinance.” Attorney Bearor pointed out that nowhere does the quarrying ordinance say the applicant has to demonstrate that it is a lawful non-conforming use. The quarrying ordinance requires the applicant to prove that it has right, title, and interest.
Attorney Bearor offered a general timeline of quarrying ordinances for the Town of Mount Desert.
Section 8 of the current Land Use Zoning Ordinance defines non-conforming use as “the use of a building structure, lands or parts thereof which are not allowed in the district in which they’re situated”. However, Attorney Bearor asserted that mineral extraction was allowed in the R2 district until last year.
Mr. Kiley inquired when “excavation/gravel pits” became a prohibited use. The exact year was unknown. A discussion of the history of use ensued.
Attorney Dan Pileggi, representing Hall Quarry residents, read Section 2.8 of the quarrying licensing ordinance: “This ordinance shall in no way impair or remove the necessity of compliance with any other rule, regulation, bylaw, permit, or provision of law. It is anticipated that the application will be reviewed concurrently with this ordinance and the requirements of the Land Use Zoning Ordinance.” Mr. Pileggi noted that the quarry ordinance essentially incorporates the LUZO. And the LUZO states that the resumption of a non-conforming use is prohibited. Attorney Pileggi pointed out the section in the LUZO that notes existing quarries can apply for a license; he felt it pertained to lawfully existing quarries. He noted the ordinance of 2010 allowed a quarry with a permit from the CEO. A
permit was never applied for or received. The only way the applicant could have been a lawful non-conforming use was to exist without breaks in use lasting longer than 18 months or 12 months. Attorney Pileggi noted several instances where there had not been use in the quarry in question for years. It was his feeling that the quarry had been abandoned for years at a time. It was noted that the applicants were selling stone stockpiled elsewhere and this did not constitute quarrying.
Vice Chairperson Andrews inquired where the definition of quarrying was being found as including both removing stone and transporting stone. Attorney Pileggi noted that in the older ordinances there was no definition; in the current one there is. He expressed his view that transporting stone already stockpiled did not count as quarrying.
Attorney Pileggi opined that the quarrying ordinance addresses non-conformity by adopting the LUZO standards. The only way to read the two ordinances in concert was to use the non-conformity definition. The Town can’t arbitrarily make something legal by using the term “existing”.
Attorney Pileggi asserted that the applicant has to show one of two things: they have to show they were permitted under the 2009 or 2010 ordinance, or they have to show they were a lawful non-conforming use.
Attorney Bearor noted that the connection between the LUZO and the quarrying ordinance refers to matters such as minimum lot size requirements. Section 6B.12 was read; “quarrying activities are regulated by the Town of Mount Desert quarrying license ordinance.” Attorney Bearor opined that the statement cedes the issue of quarrying to the quarrying ordinance. Mr. Bearor asked why if the ordinance was supposed to say “lawful non-conforming use” in the quarrying ordinance does it instead say “active unlicensed quarrying operations”. There is no question in Mr. Bearor’s mind that the applicant has an “active unlicensed operation”. Furthermore they have filed the required application.
Discussion regarding whether the Land Use Zoning Ordinance applies to a quarrying operation ensued. Attorney Bearor asked why a quarrying ordinance would be necessary at all if not to review and regulate quarries in existence. Otherwise, the LUZO could have been amended to simply prohibit all quarrying operations.
Mr. Hanley asked about what the situation would be if a quarry operation were scaled back due to an economic recession or other business slowdown. Attorney Bearor noted that the ordinance defined quarrying as both extracting stone and removing it from the site. Mr. Hanley voiced his concern regarding an applicant not having standing based on a technicality of their business volume.
Mr. Hanley noted that a quarry ordinance indicates the Town is trying to regulate quarries, as opposed to simply prohibiting all quarries.
Mr. Hanley noted that stone has been removed from the site periodically since 1978. Mr. Collier agreed. Mr. Pileggi questioned whether the stone removed was actually from the site, or removed from the site in the past and stockpiled elsewhere.
Mr. Kiley expressed his view that the heart of the question is whether the quarry has been active. Therefore, the paperwork providing evidence of activity must be reviewed. Vice Chairperson Andrews agreed. Mr. Kiley added that the question of what is active needs to be addressed – is it both the removal of stone from the ground, and the transportation of stone from the quarry or not?
CEO Keene read the definition of “inactive” from the Quarrying Ordinance: “quarrying that has ceased for 12 consecutive months prior to the passage of this ordinance in any areas where quarrying activities had previously occurred.” Attorney Bearor noted that the definition shows the burden of proof is only for the 12 months prior to the creation of the ordinance. Mr. Kiley asked if all the applicant was doing was transporting already-quarried stone from the site, then wouldn’t that define the quarry’s use, and the Planning Board could allow that continued use.
Vice Chairperson Andrews felt that the Board needed to determine whether the quarry lawfully exists in order to apply for the permit. Attorney Collier reiterated that the applicant has to determine whether they are lawfully conforming by having a permit, which they do not, or by being grandfathered. Mr. Hanley and Mr. Kiley agreed it would have to be grandfathered. Attorney Collier noted that if it has to be grandfathered, then the Board has to determine there were no periods of time in which they were considered inactive. He instructed the Board to review the submission of paperwork describing the quarrying operations. He asked that Attorney Bearor might create a dateline for the operations.
In addition, Attorney Collier noted that one thing that could be decided at the meeting was whether quarrying means cutting stone only, or also carrying away cut stone. A review of the official dictionary was made. CEO Keene read a number of definitions of the word “quarry”, the most pertinent to the meeting being, “an open excavation for obtaining building stone, slate or limestone, a rich source.” The pertinent definitions of “Quarrying” were “to dig or take from as if from a quarry. To take a quarry or to delve in as if in a quarry”, “The business, occupation, or act of extracting useful material as building stone from quarries.” The question of the words “take from” as part of the definition and what exactly they mean was discussed at length.
It was determined that the Board would review the submittals regarding operations to determine the status of the operation in question.
Mr. Kiley asked if a receipt for Hall Quarry granite was proof that the site was being quarried. What if the stone sold was not in Hall Quarry when it was sold. Vice Chairperson Andrews noted that such an action fell within the broader definition of quarrying. Mr. Kiley felt he would prefer to know the applicants were physically in the quarry, rather than operating with materials that were at one point in the quarry. Mr. Hanley and Vice Chairperson Andrews felt that stone stored elsewhere was part of the quarry operation. Mr. Kiley stood by his preference to ensure the applicant has actually operated out of the quarry site itself.
It was agreed that the next meeting would be planned to determine standing of the applicant and completeness of the application. Discussion of the next meeting date was held.
Mr. Hanley moved, with Mr. Ashmore seconding, to adjourn the meeting. Motion approved 4-0. Meeting was adjourned at 8:17 PM.
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