Town of Mount Desert Planning Board
Planning Board Meeting Minutes
Meeting Room, Town Hall
6:00 pm, April 22, 2013
Public Present
Andrew Hamilton; attorney for Global Tower Assets LLC, Audra Klumb, Sharon Kelley, James Reed, Ruda Brunetti, Blaine Hopkins; Project Manager for Global Tower Assets, LLC, Carroll Fernald, Tom Fernald, Sheila Swanson, Bill Swanson, Bill Fernald, Wells Bacon, Mark Phillips, Ted Bromage
Board Members Present
Chairman Ellen Brawley, Dennis Kiley, Lili Andrews
Also present were CEO Kimberly Keene, James Collier, Attorney for the Town of Mount Desert, and Recording Secretary Heidi Smallidge.
I. Call to Order
The meeting was called to order at 6:02 p.m. by Chairman Ellen Brawley. The members present were noted.
II. Approval of Minutes
Minutes could not be approved, due to lack of a quorum.
III. Subdivision(s):
Public Hearing: Plan Revisions After Approval
Subdivision Application # 001-2012
PROPERTY OWNER(S): Global Tower Assets, LLC
AGENT(S): ATC Realty
P. Andrews Hamilton, Eaton Peabody, Esq.
PROPERTY LOCATION: Someshenge Way, formerly a portion of
1049 Main Street, Somesville
TAX MAP: 010 LOT: 147-002 ZONE(S): Village Commercial District (VC)
PURPOSE: Section 5.13 of the Subdivision Ordinance – Plan Revision After Approval
It was established that there was a quorum. Ms. Andrews confirmed that there had been adequate public notice, as well as notice to the abutters. It was noted that everyone within 1000 feet of the site were sent notice. No conflict of interest was found. It was determined the Board had jurisdiction over the matter.
Andrew Hamilton of Eaton Peabody, representing ATC Realty, gave a brief outline of the situation. Mr. Hamilton was called on based on a conversation Blaine Hopkins of Global Tower Assets had with Attorney Collier and Planning Board Member Sandy Andrews after the adjournment of the last meeting regarding the question of whether the setback requirement was met. Mr. Hamilton referred to page 6-17 of the LUZO, in section 6B.17, noting that most tower ordinances have “fall zones”; the area where a tower might land if it were to come down. This ordinance sets the fall zone as the setback. Looking at Section A the ordinance states:
“The center of the base of any wireless communications tower must be set back a minimum of 105% of the tower height or the required minimum setback of the district in which it is located, whichever is greater.”
Mr. Hamilton noted that in this case the 105% of the tower height is the greater area. In Section F the LUZO notes:
“Setback requirement cannot be waived by abutting property owners as otherwise allowed in Section 3.5 footnote (d).”
The applicants looked at what was required to configure the lot to accommodate the setback. From the center of the tower the setback area is 131.25 feet around the tower. The revised plan shows a lot that meets the 131.25 foot setback from the center of the base of the tower.
Mr. Hamilton noted that there had been a previously approved plan that had been signed and recorded at the Hancock County Registry of Deeds which makes it a valid plan. This newly revised plan will need to reference that plan.
Ms. Andrews inquired whether the setback could be in a shared easement area. Mr. Hamilton affirmed it could.
Mr. Collier asked Mr. Hopkins or Mr. Hamilton to point out the changes to the plan. Mr. Collier noted with regard to the Northwest corner of the Savage lot it seems there is a new blow-up there showing the distance from the Northwest corner.
Mr. Hamilton noted they did not want to landlock the rear parcel or to configure a separate and new lot. As long as they’re not dividing off the balance of the property that starts at Main St. and comes back in the direction of the tower. The blow-up on the plan depicts more clearly what they did. Chairman Brawley inquired whether this was within the letter of the law. Mr. Hamilton assured her it was.
Mr. Collier inquired about the blow-up at the top of the plan. It was confirmed the blow-up was new. Mr. Hamilton noted the blow-up showed the location of the cul-de-sac with reference to the lot. It also shows the lot straddles the right of way. He noted there’s a provision in the LUZO and the subdivision ordinance that says that lots run to the centerline of a road. There was no way to place the center of the base of the tower and avoid crossing the road. The intention is to continue to use the 100’x100’ area for purposes of locating operational requirements. This is a requirement of the ordinance to establish compliance. They are meeting the standards of the ordinance which require 105% of the tower height.
Mr. Collier noted that in the blow-up it also shows 20 feet of road frontage. Mr. Hamilton agreed. The location of the lot line runs down the centerline and provides both for Bangor Hydro and Global Tower Assets the 20 feet on the centerline of the road which is the requirement for this particular zone.
Ms. Andrews asked if Mr. Hamilton could explain the road frontage. She noted the road in question was a private road. Chairman Brawley agreed and asked why it was marked Road Town Frontage. Mr. Hamilton noted it was a requirement to have road frontage in that district. Mr. Collier noted the Town ordinance requires width of the lot at the road.
Ms. Andrews asked about whether lots One and 2-1 had access. Chairman Brawley noted that lot 2-1 is connected to another lot. Mr. Collier thought lot 2-1 was to be conveyed to lot Two. Mr. Hamilton confirmed it was. Mr. Collier noted that lot One’s access is actually down on the highway which refers back to the first blow-up discussed. Mr. Hamilton noted there were principally wetlands in the area making development unfeasible.
Mr. Collier inquired whether there was anything else new that the Board should be looking at. Mr. Hamilton noted there was a new note – Note 10 – “The purpose of this plan is to supersede plan recorded in plan file 41, page 136 dated April 2, 2013 of the Hancock County Registry of Deeds. Purpose was to revise Lot number 2-1 and Lot 3 as shown on plan.”
Mr. Collier asked if there were any deletions that were on the other plan, other than the one needed for the size of the lot. Mr. Hamilton didn’t believe there were.
CEO Keene noted she had spoken to Mr. Hamilton, Mr. Hopkins, the surveyor, and another attorney. After much discussion, she felt the revision met the ordinance.
Chairman Brawley opened discussion to the public. There were no comments at this time.
MR. KILEY MOVED, WITH MS. ANDREWS SECONDING, THAT GIVEN THE NEW ITEMS ON THE NEW PLAN SUCH AS INSETS, ADDITIONAL NOTE (NOTE 10), THE NEW SIZE AND SHAPE OF LOT 3 AND OTHER MATTERS DISCUSSED BY THE BOARD, THE BOARD FINDS THAT THE APPLICABLE STANDARDS OF MOUNT DESERT SUBDIVISION ORDINANCE AND THE MOUNT DESERT LUZO AND THE CRITERIA SET FORTH IN THE STATE SUBDIVISION LAW (30-A, MRSA SECTION 44-04) HAVE BEEN MET. MOTION APPROVED 3-0.
MS. ANDREWS MOVED TO APPROVE THE PLAN REVISION UNDER SECTION 5-13 SUBDIVISION ORDINANCE. MR. KILEY SECONDED. MOTION APPROVED 3-0.
Mr. Hamilton requested he be able to discuss one additional, informal item - the issue of visual impact.
Mr. Collier stated it was fine to discuss, but the Board would not be able to take any official action because the application is not formally before them at this time. Mr. Hamilton agreed, however noted the timing challenge for the visual assessment. They hoped to complete the visual impact assessment prior to the trees leafing out for the season.
Mr. Collier noted that if the other Board members not in attendance tonight take issue with any decisions made it can cause a problem. Mr. Hamilton noted that was the case for every matter. It was Mr. Hamilton’s hope to engage those members present and members of the public to ensure it’s done well enough the first time that it doesn’t have to be repeated.
Mr. Hamilton requested to present a broad overview of the assessment along with Audra Klumb’s standard practice. He submitted to the board some supporting materials. The materials handed out show the properties within 1000 feet of the tower that can be used as a vehicle to secure written permission from private residential property owners and a map showing two circumferential areas for the purposes of determining public area; a one-mile radius and a two-mile radius.
Audra Klumb of A&D Klumb Environmental, LLC noted that for a general visibility study a balloon is typically used. Because winds are a factor, they are proposing using a crane raised to the height of the tower with a flag at the top to replicate the balloon. Chairman Brawley voiced concern over the whether the flag would be as visible as a balloon. Chairman Brawley stated she would like everyone to have the chance to see it regardless of the conditions. Ms. Klumb agreed that something could be worked out. Chairman Brawley felt that if it’s windy the flag will be sufficient, but if it’s calm the flag will be difficult to see.
Ms. Klumb noted that a typical study is half a mile for any tower less than 200 feet. On a special request a larger study can be done using one or two miles. The only place Ms. Klumb’s tested for a wider area would be for Acadia National Park, which requests four miles in specific spots within the park. Once the balloon is up, they conduct a drive-around and note places the balloon is visible with the GPS and take a picture.
Mr. Hamilton asked Ms. Klumb to compare her standard practice with other towns in Maine to the Mount Desert Land Use Ordinance. Ms. Klumb noted that generally she doesn’t do abutting landowners unless requested. In the nearly 100 assessments she’s done, she estimated doing abutter visibility twice per town request and it’s always with written permission. Mr. Hamilton stated that in Section 6B.17, Section 8 that private residences need to be included for visibility assessment purposes. However, no guidance is provided other than another section of the ordinance (Section G) speaking to abutting property:
“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 …”
Mr. Hamilton opined the references to public areas meant Acadia National Park and the Historic Preservation office. Based on this wording the argument could be made to mean every private residence on Mount Desert Island. Mr. Hamilton mentioned there is no mention of radio distance of 3 to 5 miles in the ordinance. Mr. Hamilton is looking at the structure of the ordinance as a whole. He noted that input from Acadia National Park has been included, as well as archeological and historic resources. Consideration needs to be given to other towers in the area, however there are none to his knowledge. It was noted the nearest one was approximately six miles away. Mr. Hamilton read the rest of the visual impact assessment of the tower ordinance. He then read the design standards from the tower
ordinance.
Chairman Brawley inquired whether reading the ordinance to the Board was pertinent to Ms. Klumb’s visual impact assessment. Mr. Hamilton felt it was because they refer to abutting property owners, which in the definitions (page 8-1) an abutting property owner reads:
“ABUTTING PROPERTY: Any lot which is physically contiguous with the subject lot even if only at a point and any lot which is located directly across a street or right-of-way from the subject lot such that the extension of the side lot lines of the subject lot would touch or enclose the abutting property.”
Mr. Hamilton noted the test would not be strictly adhering to the definition. Instead, in consultation with the Town, they’ve been considering using the same notification list as used for the subdivision notification, everyone within 1000 feet. It is the goal that the visual impact assessment will be scoped in a way that’s sensible to the Board. They are hoping for guidance from the Board.
Chairman Brawley inquired how Global Tower Assets plans to give people the opportunity to give permission to assess from their property. Ms. Klumb stated there would be a mailing. Wells Bacon, a Mount Desert resident, asked how much time would be given for residents to respond. Mr. Hamilton envisioned a letter going out to residents with a permission form and a request that if they wanted an assessment done, they should return the form within seven days. Mr. Collier asked about getting notice in the newspaper. Mr. Hamilton noted that because this was a courtesy by the applicant, he didn’t know how that will facilitate quick response. Mr. Collier noted that Mount Desert has a seasonable community that will only see a notice that’s in the newspaper. Mr. Hamilton asked about submission dates
for newspaper notice. Mr. Kiley informed him that Monday at noon prior to the Wednesday publication of the paper was the typical deadline.
James Reed stated that if permission for visual impact assessments was wanted he felt that letters sent could be mistaken for junk mail and discarded without being read. He suggested finding a better way to inform the residents.
Chairman Brawley noted the letters most likely wouldn’t be from the Town, and perhaps people would be more likely to read them. CEO Keene suggested a certified letter.
Mr. Collier noted that wanting a response and wanting the opportunity to respond are two different things. It was his opinion that the only thing needed is the opportunity created for people to respond if they so choose. The Board would most likely not look too kindly on neighbors who ignored the opportunity only to complain at a later date.
Mr. Bacon noted that whether a response was wanted or not depended on what the goal was. He hoped the goal of the Planning Board would be to determine what the people in the area can see; to that end, the Board should be hoping for responses.
Mr. Collier stated he was hoping for a methodology that will prevent a costly appeal. The last tower application went through a series of appeals. He hopes that something is done in a way that is not appealable.
Ms. Bacon mentioned that at the previous meeting discussion was had regarding the ability to have land owners get involved in the assessment. There was talk of notifying everyone within 1000 feet, and of making the assessment available to anyone in town who had a concern. Mr. Bacon had at the time felt there had been an understanding between the Board and the applicants; they would notify everyone within 1000 feet and put a notice in the paper and entertain requests from anyone concerned about the visual impact.
Chairman Brawley thought it might make sense to set a radius beyond which it would be silly to worry about impact.
Mr. Hamilton thought Mr. Bacon’s scenario was possible. He estimated there were thirty property owners within the 1000 foot radius. If there were anyone outside this radius that would like the opportunity to have a picture taken from their property it wouldn’t be objectionable.
Mr. Bacon noted that outside the 1000 feet, as discussed at the last meeting, there are a lot of residences that may see the tower. He added that at the last meeting the Board discussed letting the residences know when the balloon test would be held so they could do their own assessments. Mr. Bacon had several sites from his property that he’d like to know what the impact will be. To do that, he will need to know when the test will be done. Chairman Brawley noted it was only fair to provide notice. Ms. Klumb noted that weather is a factor for the test, making any test date tentative.
Mr. Hamilton noted that it’s difficult to address visibility from every point on a large lot. The ordinance notes “private residences” and Mr. Hamilton would not be comfortable trying to guess all the visible points on a property that might be important to a resident or future building sites, nor does he feel the ordinance requires it.
Mr. Bacon felt the conversation at the last meeting resulted in a pretty good approach to the issue. It gave those who live in the area the opportunity to know the test is happening and look from what vantage points they are interested in. He felt it important that anyone interested could be notified of when the test would occur.
Chairman Brawley asked if there were a way to have a website that people could check daily. Mr. Hamilton agreed this was a good idea. He noted the applicant would provide a newspaper notice, and post on a website the date of the test.
Mr. Kiley noted the applicant mentioned a half-mile viewshed radius is reviewed. The applicant has mentioned 1000 feet, but that is not a half a mile. Mr. Kiley was concerned that if only 1000 foot radius is considered, could a resident complain that they were not included though they were only 1200 feet away.
Mr. Hamilton noted that this question can be looked at. He noted the permission form approach can be coupled with the newspaper notice. Within 1000 feet of the site will be used as a starting point for the applicant to proactively get permission for assessments. For someone outside of that radius they can be invited to be in touch and/or make sure they have notice by checking the website.
Ted Bromage suggested asking for primary and secondary means of contact on the permission form.
Mr. Kiley asked for clarification with regard to mailing response time; would a response be expected back within seven days? Mr. Hamilton affirmed. He noted the time was getting short due to leaves coming out. If permission comes in after that seven days, as long as it comes before the test occurs they can probably accommodate the permission given. Mr. Kiley suggested this wasn’t a lot of time if someone doesn’t get their mail daily.
Sheila Sawnson mentioned the tower’s visibility at Babson Creek, as well as from boats in the Sound. A variety of other places the tower may be visible from were discussed at the previous meeting. Will those places be addressed? Chairman Brawley noted that the handout provided by the applicant had a list of specific places to assess visual impact.
Blaine Hopkins of Global Tower Assets noted the Natural Resources Protection Act (NRPA) has impacts assessed for protected natural resources. The Land Use ordinance doesn’t try to get at views from the water. An assessment has been done with the Acadia National Park, a NEPA review has been made, and also the applicant will look at public areas within the community, such as the Babson Creek walking trail and the town dock in Somesville. Places on the land near the water will be assessed, however the LUZO doesn’t seem to indicate assessment from the water is necessary.
Mr. Hamilton noted they were updating the visibility assessment to ensure views from State of Maine road intersections, town dock, and Babson Creek will be assessed. There were attempts to assess these areas previously, but this will be a broader, more comprehensive supplement. Mr. Collier asked about the Mount Desert Campground or Parker Farm Road. CEO Keene noted some assessment had been done from the Parker Farm Road area.
Chairman Brawley felt that the public notice given will cover areas people are concerned about. She felt that a one-mile radius would cover the areas mentioned. Mr. Hamilton noted that a one-mile radius covered a lot of property. Chairman Brawley noted that half a mile doesn’t cover enough. It was noted the Mount Desert Campground was a mile away.
Mr. Bromage stated he experienced a medical emergency off the Somesville landing and would have appreciated the coverage of a cell tower. Barbara Craighead, the owner of the Mount Desert Campground had been at the last meeting and she had been a great advocate of the tower. He added that once a cell tower is there, people stop noticing it after its initial installation.
Mr. Collier noted that as a procedural matter, he suggested codifying the process taken for future use with other towers.
Ms. Swanson noted that society has become too dependent on instant communication. She asked what happened to self-reliance and enjoying the natural beauty. She stated it was nice to have places where there aren’t things like cell towers. She felt people should live life and not be fearful. Mr. Collier suggested Ms. Swanson come back for the actual hearing.
IV. Other
Mark Phillips, General Manager – Asti Kim Corporation, Asticou Inn – seeks recommendation from the Planning Board to the Board of Selectmen for DOT directional signage as per Section 6B.15.4.5, of the Land Use Zoning Ordinance.
Mr. Collier declared he had a conflict of interest in the matter and immediately left the meeting. No other conflict of interest was determined. Chairman Brawley summarized that Mr. Phillips wants to put up signs for the Asticou Inn – one coming out of Northeast Harbor and one going down the hill into Northeast Harbor, both at intersections.
Ms. Andrews asked whether these had been approved by the Board of Selectmen. Chairman Brawley noted the Board of Selectmen won’t approve the signs until the Planning Board had reviewed and approved them. Mr. Phillips noted the signs would be in an area where other signs are, and submitted pictures of the two areas the signs would go. Discussion of exactly where the signs would go ensued.
Chairman Brawley noted she felt they had to define where at the intersection the signs would be. Ms. Andrews noted that at the light in Somesville, the signs are at the side of the road. Mr. Phillips noted he planned to put them where other signs were. Chairman Brawley noted she’d like them to be as near the intersections as they can be.
Mr. Kiley asked whether the Board was encouraging the addition of new signs, rather than placing them with others. Although having them at the intersections is a good idea, the possibility of adding more signage when other signposts are in place is not a good idea. Chairman Brawley suggested maybe putting them on the already in place posts would be the best compromise. The group tried to remember exactly where the existing signs were on the road.
CEO Keene felt the Board would have to have Mr. Phillips come back with actual photos of the signs already in place at the sites.
Mr. Kiley wondered whether the Town could encourage the DOT to shift the signs to one signpost.
V. Adjournment:
MS. ANDREWS MOVED, WITH MR. KILEY SECONDING, TO ADJOURN THE MEETING. MOTION APPROVED 3-0. Meeting adjourned at 7:25PM.
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