Town of Mount Desert Planning Board
Planning Board Meeting Minutes
Meeting Room, Town Hall
6:00 pm, March 25, 2013
Public Present
Thomas P. Fox, Bob Falt, Anne Funderburk, Noel Musson, and Katrina Carter
Board Members Present
Chairman Ellen Brawley, Lili Andrews, Sandy Andrews
Also present were CEO Kimberly Keene and Recording Secretary Heidi Smallidge.
The meeting was called to order at 6:00 p.m. by Chairman Ellen Brawley. The members present were noted.
It was deemed there was not a quorum for approving the Minutes. Approval of Minutes was tabled.
III. Section 4.3.4 Reconstruction or Replacement of a Non-Conforming Structure:
(CUA: 002-2013)
OWNER(S): Caren V. Sturges
AGENT(S): Thomas P. Fox, Fox Forestry, LLC
LOCATION: 13 Harbor Watch Lane, Northeast Harbor
TAX MAP: 024 LOT: 131 ZONE(S): Shoreland Residential Two (SR2)
PURPOSE: Harvesting in excess of 40%
SITE INSPECTION: 3:00 PM
CEO Keene noted that the Conditional Use Application had been filled out at a later date than the submission of the materials. CEO Keene wasn’t sure whether the Conditional Use Application was necessary, however she had the applicants use the form just in case.
Chairman Brawley confirmed there was a quorum and noted the members present. It was determined there had been adequate public notice, and that abutters had been notified. No conflict of interest was found.
A review of the application was made by the Planning Board. Reviews of the LUZO section addressing forest management and the submitted forest management plan were made as well. Mr. Andrews pointed out that if the application were approved the Planning Board would have to notify the state. CEO Keene agreed and stated that if the project were approved she would notify the state on the Planning Board’s behalf. Mr. Andrews moved, with Ms. Andrews seconding, to find the application complete. Motion approved 3-0.
Chairman Brawley reported that she and CEO Keene attended the site visit. Chairman Brawley requested that Thomas Fox, representing Fox Forestry, LLC, describe the proposed work.
Mr. Fox gave an overview of the management plan. He reported the property has had no forest management. Under the timber harvesting guidelines Mr. Fox plans to stay under the 40% harvesting requirement for the larger diameter trees on the site. He plans to take approximately 10% of the large-diameter trees throughout the stand at two 2 ½ year intervals. Mr. Fox noted that the amount of trees to be cut surpasses the 40% due to the number of trees he’d like to cut that fall within the smaller diameter frame of two to four inches and six to eight inches. Trees of this size are currently overcrowded and competing with each other. The proper spacing for a two to four inch diameter tree is six feet by six feet. Mr. Fox noted there is no provision for cutting trees of this size in the timber
harvesting regulations.
The guidelines also allow for some cleared openings. New cleared openings cannot exceed 10,000 square feet. Mr. Fox added there were some existing non-conforming openings. Mr. Fox plans to create some new cleared openings however their size will be no more than 2600 to 2900 square feet.
It is Mr. Fox’s goal to preserve the characteristics of the forest as seen from the harbor and from the adjacent shoreline. This is possible due to the location of the work and the slope of the land. There will be no cleared openings within 75 feet of the high tide line, but there will be some management of the younger trees in order to provide the proper spacing. Thinning the trees to a healthier density will allow for the trees left to quickly grow back in. Spacing them properly will force Mr. Fox to remove more than the 40% allowed. He surmised the crowns of the trees left would not be touching but would grow in to touch within three to five years.
Mr. Andrews asked what size the trees left would be. Mr. Fox reported the trees that remain would be of varying size. Mr. Andrews asked what the height was of the smaller diameter trees. Mr. Fox stated they ranged in the area of ten to fifteen feet in height. Mr. Fox added the trees have spent their lives growing in the stress of overcrowding, and it was becoming clear which of the trees would be the winners in the competitive environment.
Mr. Andrews noted that a conservation easement held on some land he owns has a similar overgrowth situation. He had been advised by those holding the easement that the competitive environment will simply result in the weaker trees dying off and overgrowth was not a concern. Mr. Fox agreed that was an option if active management was not wanted. The kind of management Mr. Fox was presenting was designed to promote forest health and aesthetics.
Mr. Andrews inquired whether the trees left would be strong enough to support each other in the wind. Mr. Fox noted this was another reason to thin; thinning allows for the younger trees left to grow strong enough to support themselves in the wind. Mr. Andrews asked about the smallest of the trees – those at one foot in height as an example. Mr. Fox reported there were no small trees – there’s no room and no sunlight.
Chairman Brawley asked for Mr. Fox’s comments on retaining clumps of trees near the clearcut areas. Mr. Fox referred to several pictures in his forest management plan. He noted the clumps of trees have strength because they stand together. His plan is to take a single tree from the clumps as appropriate. Doing so will not change the view from the water or the other shore, but will allow for more space for growth and will open up the view for the landowner.
Mr. Andrews hoped the area wouldn’t end up a manicured, highly maintained forest with no understory and a completely even canopy. Mr. Fox noted that such work is not really forest management.
Mr. Andrews voiced concern over the plan continuing for several years and then being discontinued. He wondered what would happen should the work be discontinued and voiced concern regarding the Planning Board’s lack of ability to enforce the plan. Mr. Fox felt the work would not be discontinued; in five years the growth will be thick enough to warrant more cutting. Chairman Brawley asked what would happen to the stand of woods if the cutting is discontinued after the first year. Mr. Fox suggested the Board could make completing the work a requirement.
CEO Keene inquired whether all the trees were diagrammed on a plan. Mr. Fox did not have a plan with that level of detail.
Mr. Andrews asked whether any of the work would occur in the setback area. Mr. Fox said that there would be no cleared openings made within the setback, but there would be some cutting to allow for the appropriate spacing. Mr. Fox added that he would be working with the landowner with regard to what areas he would be working on, and when. The plan he has submitted addresses the current state of the property.
Mr. Andrews asked whether it would be practical to set a condition on the application with regard to not increasing the visibility of the house from the harbor and shoreline. Mr. Fox noted the house is presently visible from the harbor.
Chairman Brawly asked if grandfathering would allow the previously clear-cut spaces to be completely cleared again. Mr. Fox noted it would, however the areas have grown back in. He felt the question would be up to the Town and the CEO. He added that the clear-cut spaces do help in allowing sunlight in to promote growth.
Chairman Brawley noted that what has to be clearly shown is a forest management plan and evidence that the work is necessary for good forest management and it will be carried out in accordance with the purposes of the ordinance.
Mr. Fox noted that disposal of the trees cut hasn’t been fully decided, some may be removed, some burned, some chipped.
Mr. Andrews moved to approve the application. Ms. Andrews seconded.
Mr. Andrews moved to use the short application form for the application review. Ms. Andrews seconded. Motion approved 3-0.
A review of the Conditional Use Application was made by the Board, using the short application form.
Motion to approve the application approved 3-0.
An Informal Discussion: Noel Musson, The Musson Group to discuss “draft” Quarrying Ordinance and the suggested amendments to the Land Use Zoning Ordinance.
Mr. Musson reported that the advisory group is in the process of creating a quarrying licensing process. This would involve creating a whole separate ordinance for quarrying operations and a licensing process that would apply not only to new quarries but to existing quarries as well. He noted the legal implications of such a process have been reviewed and the proposed process has been okayed. Mr. Musson noted the next meeting was Thursday, March 28, and a draft would be distributed for review.
Mr. Musson reviewed some of the revisions to the ordinance draft; referring to the appeals process already in place versus creating a new one, and a larger question being the question of whether an appeal should go directly to court, or should it first go to the Appeals Board. The Planning Board members agreed that any appeal made regarding this subject was almost certainly going to end up in court.
Ms. Andrews inquired whether Mr. Musson had discussed with the attorney the question of when a public hearing is required. She cited Section 4.4.a.2 of the LUZO as one of the many sections that refer to a public hearing, but no criteria has been provided for how to determine that a public hearing is required.
Mr. Andrews asked if a quarry could be opened anywhere in Town. Mr. Musson noted a quarry could be opened anywhere in town that fell within the criteria created by the ordinance. Currently, quarrying will be allowed in areas across the board, but it may be the feeling of the committee to change that.
It is Mr. Musson’s plan to create two warrant articles, the first one being the question of taking mineral extraction out of the ordinance as an allowed use, and second quarrying will become an allowed use. A definition of extractive industries will be added as not an allowed use. The definition will incorporate gravel pits, and crushing operations. In addition the definitions of “quarry” and “quarrying” will be added and the section in the current LUZO dealing with mineral extraction will be eliminated. The new quarrying ordinance will create a whole new review procedure. Mr. Musson is currently in the process of editing the ordinance to prevent overlap and ensure consistency.
Future meeting dates were discussed. With regard to scheduling, April 11th is the tentative date for a general public hearing. June 27th is the tentative Town Meeting date for voting on the changes; however the June date can be changed to sometime in July. Chairman Brawley reminded Mr. Musson that any public meetings would have to be given public notice well in advance of the actual meeting.
Ms. Andrews inquired why within the definitions the term Extractive Industries was included as well as Mineral Exploration and Mineral Extraction. She felt they were the same things. Mr. Musson suggested they might want to keep Mineral Exploration and Mineral Extraction as definitions. Ms. Andrews also wondered about the term Dimensional Stone Quarrying as opposed to Quarrying. Mr. Musson thought they would remove the term Dimensional Stone Quarrying. He added they may take out the term Rock Ore under the definition of Quarrying. Mr. Musson felt the term would confuse the type of rock allowed to be taken. He would add to the definition of Quarry that the term does not include Gravel Pit or Borrow Pit.
Mr. Andrews noted that it was his understanding that the working with stone would also be banned. He asked if this would eliminate an operation such as Doug Gott’s operation in Tremont. Mr. Musson affirmed that that was the intent. Mr. Musson noted that it was the intent to write an ordinance that allowed someone to remove a big chunk of rock from the ground and remove it to another place for processing. Mr. Musson added that it was not necessarily the intention to disallow the screening of rock for private endeavors such as an approved commercial construction project. Mr. Musson mentioned variances have been removed and buffering and setback standards have been included.
Mr. Musson stated that the DEP had recently informed the Town that there were three issues with the shoreland zoning ordinance that needed to be addressed. After the notification of the three issues, the DEP sent a letter with 30 or more additional issues. Chairman Brawley noted this was the same shoreland zoning ordinance the DEP had approved. Mr. Musson felt this issue should probably be included and addressed at the special Town Meeting. The issues included the definition of “setback”, Section 6C6, and the definition of “tree”. With regard to the definition of “tree”, Mr. Musson suggested the Town simply adopt the DEP’s definition of tree.
One final point Mr. Musson made was the question of where the definitions should be within the LUZO. Town Manager Lunt prefers them to be in the front of the document; however they are currently at the end. CEO Keene and Chairman Brawley preferred they stay at the back.
Mr. Andrews moved to adjourn the meeting. Chairman Brawley seconded. Motion approved 3-0. Meeting was adjourned at 8:04 PM.
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