Town of Mount Desert Planning Board
Planning Board Meeting Minutes
Meeting Room, Town Hall
6:00 pm, June 10, 2013
Public Present
Wallace R. Grant, Judith Grant, Richard Fuerst, Will Burden, Daniel Pileggi, Erma Smallidge, George Gilpin, Jean Gilpin, Virginia Ruth, Bob Ruth, Christine Breedlove, Laurie Shencavitz, Gerald Shencavitz, Jean Travers, Sharon Musetti, Muriel Christian, Laura Smallidge, Jan Coates, Katrina Carter, Scamp Gray, Rick Mooers, Kathe McCoy Katie Bell, Douglas Hopkins, Peter Aylen, Judy Aylen, Mimi Heckman, Christine Stanley, Noel Musson, John Fehlfuer, Audrey Wentworth, Jock Williams, Paul MacQuinn, Anne Funderburk, George Davis, Lelania Avila, Jeff Gammelin, Benjamin C. Moore, Melissa Moore, Dianne Lytle, Earl Brechlin, Jess Toman, Sara Pierce, Ted Warholak
Board Members Present
Chairman Ellen Brawley, Dennis Kiley, Lili Andrews
Also present were CEO Kimberly Keene, Town Manager Durlin Lunt, and Recording Secretary Heidi Smallidge.
The meeting was called to order at 6:05 p.m. by Chairman Ellen Brawley. The members present were noted.
May 28, 2013 Checklist: It was noted that at the May 28 2013 meeting Mr. Kiley was an alternate member at the time of the meeting. Ms. Andrews moved to amend the checklist so the votes read “5-0” rather than “6-0” to reflect the fact that Mr. Kiley was an alternate, non-voting member at the meeting. Chairman Brawley seconded the motion. Motion approved 3-0.
Ms. Andrews noted that with regard to page 13 of 21 under the Findings of Fact, it noted “See insert 8F2”. Ms. Andrews moved to remove the note. Mr. Kiley seconded. Motion approved 3-0.
After some discussion CEO Keene suggested the checklist be tabled until further review.
May 28, 2013 Minutes: Approval of Minutes were tabled until they could be further reviewed.
CEO Keene noted that at the May 28th meeting, Mr. Kiley made several seconds. How would his being deemed an alternate and non-voting member affect those seconds? Chairman Brawley noted the Board received approval from Planning Board Members Sandy Andrews and Bill Hanley on the checklist as it was. She felt that would suffice.
- Public Hearing: Proposed Quarrying Licensing Ordinances And Related Amendments to the Land Use Zoning Ordinance
Chairman Brawley turned the meeting over to Noel Musson of the Musson Group for a brief overview of the progress on the proposed quarrying licensing ordinance. Mr. Musson provided background regarding why they were working on the ordinance. He noted there were some draft warrant articles for review as well.
Mr. Musson listed the three questions that will be reviewed at the Town: 1 (Article 3) - whether the Town wants to disallow all mineral extraction operations, 2 (Article 4) – if the first article doesn’t pass, does the Town want to allow quarrying but not allow other mineral extractions. With regard to question 2, Mr. Musson noted the rationale behind this particular question was that the focus had been on quarrying, but not on the other activities that are included in mineral extraction. 3 (Article 5) – Does the Town want to adopt the quarrying licensing ordinance? Mr. Musson noted that if the Town votes to disallow all operations, then the ordinance can be amended to remove it completely. He distributed the wording of the warrant questions for discussion.
Chairman Brawley noted that even if the Town disallowed all mineral extraction the existing quarry in Hall Quarry would be able to continue because it is grandfathered. Grandfathered rights cannot be taken away regardless of changes to the ordinance.
Christine Breedlove asked for confirmation that in the event that mineral extraction is voted down completely, existing quarries will still be allowed to operate. Mr. Musson confirmed that existing quarries would be grandfathered and allowed to operate even if the Town votes to disallow mineral extraction.
Attorney Dan Pileggi, representing Hall Quarry residents Mr. and Mrs. Shencavitz and Mr. and Mrs. Aylen, had a question regarding Article 3. He asked what gives an existing use nonconforming status if it hasn’t already been granted by the Town. Mr. Musson noted that if it has been determined that the use pre-existed then it is Mr. Musson’s understanding that it is an existing use that is allowed but not conforming; a grandfathered non-conforming use. He noted he used the term “non-conforming” because the use would no longer be allowed otherwise. Mr. Pileggi noted that there is an ongoing dispute over whether the existing quarry is lawful or not. This ordinance won’t necessarily affect that argument. Mr. Musson agreed.
Ms. Breedlove asked if the concept of nonconforming or grandfathered use was irrelevant in the third Article. Mr. Musson affirmed and noted that part of the reason they were looking at a licensing process is because the committee felt that through a licensing process there are ways to implement standards that are applicable to existing operations.
Ben Moore inquired whether if Article 3 gets voted down, the Town skips Article 4. Mr. Musson noted that if Article 3 passes, then the Town skips Article 4 and proceeds to Article 5. He confirmed that Article 5 would get voted on regardless of votes on the other articles.
Richard Fuerst thought that the wording on Articles 3 and 4 is not normally used for LUZO amendments. He stated that normally the wording included the proposed amendment to the LUZO, and these do not. Mr. Fuerst felt it seemed as though Articles 3 and 4 adopt a stand-alone ordinance. He felt it was confusing and was not the way it had been done historically. Mr. Fuerst opined that the voters want to see how the Town is proposing to amend the LUZO.
CEO Keene noted the language had been taken from previous warrants. Mr. Musson noted the wording in the beginning was the language required legally. Mr. Musson noted that the land use amendments that will be made available and will consist of an amended ordinance with both the parts the Town is proposing to omit (striked through) and the parts they are proposing to add included (underlined).
Laura Smallidge inquired whether there was a certain type of mineral being extracted. Mr. Musson confirmed the mineral being extracted was granite. He noted this was why the advisory group focused on quarrying rather than the broader term “mineral extraction”.
Peter Aylen inquired what would happen if all three warrant articles failed. Mr. Musson stated the situation would be back to where it started. If nothing passes, then the standards that are in place now remain in place and the moratorium ends.
Muriel Christian asked if the new quarrying ordinance is approved and someone buys property in Hall Quarry and they have to extract rock in order to build their foundation would that be considered quarrying. Mr. Musson noted there was an exemption for that scenario.
Mr. Musson continued, noting that the amendments, depending on how the warrants are worded, would result in modifications to the allowed uses table in the ordinance depending on the outcome of the vote. Sections in B12 regarding quarrying would either be removed completely, amended, or would be replaced with a reference to the quarrying ordinance, depending on the vote. The definition of “quarry” would be added to the LUZO as well.
Mr. Musson specified that the version of the quarrying ordinance being reviewed at this meeting is dated May 24, 2013. He noted the proposed ordinance sets up a licensing process for both new and existing quarries and requires a thorough application process, including the submittal of application materials, performance standards, and waiver provisions to allow for some flexibility. Mr. Musson added there was a yearly renewal process and a five-year review process.
Mr. Fuerst noted that normally with proposed amendments to the LUZO they are being proposed because the Planning Board has recommended them. He inquired what the Planning Board’s recommendations were with regard the three warrant articles. Chairman Brawley stated the Planning Board has not yet decided on their recommendations; they will be meeting June 24th to make that decision.
Ms. Breedlove did not find anything in the proposed ordinance reflecting the different zones allowing quarrying. She inquired if quarrying was proposed to be applicable to all zones – would any zones be excluded from quarrying? Mr. Musson referred to the allowed uses table. If quarrying is adopted as an allowed use it would be allowed, per the LUZO, in any zone except resource protection, stream protection, and conservation.
Attorney Dan Pileggi spoke on behalf of Gerald and Laurie Shencavitz. He noted the warrant consists of two parts; the application process for new and existing quarries, and the enforcement of performance standards. Mr. Pileggi acknowledged the ordinance was an improvement, however he felt the enforcement part of the ordinance fell short. Mr. Pileggi cited the section regarding noise (section 5L) as an unenforceable standard. Mr. Pileggi noted that there was no enforceable performance standard in the ordinance that allowed a landowner to bring a viable complaint to the CEO. There are no references to decibel levels or reference to other standards or regulatory bodies – it’s merely a broad statement concerning noise. Mr. Pileggi felt that the Planning Board had some power over
the issue in that they could approve or disapprove the noise control proposed during the application process, however once a quarry is approved, the CEO has no way to enforce noise standards. Mr. Pileggi pointed out this was probably the most important issue to abutting and nearby neighbors.
Buffering was also an ambiguous issue. Currently there is no particular requirement for buffering. If the land is bare, or stripped prior to application, a buffer such as a large fence would be acceptable per the wording in the ordinance. Mr. Pileggi reported that the Shencavitzes would not feel that was an adequate buffer. Mr. Pileggi asked that on behalf of those residents living near the quarry that the Planning Board take a look at the proposed ordinance. He felt that if there were opportunity to tighten these standards before the vote, the Planning Board or perhaps the Board of Selectmen should make every effort to work with the advisory committee to do so.
Wallace Grant, a resident of Hall Quarry, inquired what would be accomplished at this meeting tonight and what would happen after that.
Chairman Brawley stated that directly after this meeting, the Planning Board would meet with the LUZO advisory committee to discuss the issues that have been brought up tonight. The Advisory Committee plans to meet again. Noel Musson noted that the moratorium would expire in just a few weeks. The Advisory Committee has a workshop scheduled June 20. The Board of Selectmen has a meeting on the 17th to discuss the wording of the warrant. June 24th is another Planning Board Public Hearing. At that point the meeting will present potentially some adjustments given the feedback from the meetings prior. At that point, the wording will most likely be in its final form in order to meet the notification deadlines for the Town Meeting scheduled for July 25th. The moratorium expires August 6th. Mr. Musson noted the moratorium can’t be extended; it has already been extended once. The vote for the articles would be at the Town meeting July 25th.
Chairman Brawley noted that the third article to be voted on would still be in effect for any quarries existing as of that date. Mr. Grant inquired whether this would apply to inactive quarries. Chairman Brawley stated only active quarries would be affected. Mr. Grant asked how many active quarries were in the Town. Mr. Musson didn’t have that number.
Mr. Fuerst hoped the Planning Board would recommend not allowing quarrying in any districts in the Town of Mount Desert. He could not imagine any way quarrying could be done that would be compatible with the other uses allowed by the Town. He felt Mount Desert real estate was for things not industrial, and quarrying was the most industrial use allowed in the ordinance.
Diane Lytle noted that there is noise everywhere. Her own home is near the traffic light on Rte. 102. She felt the Town needed industry and business and year-round residents and employment. People living in Hall Quarry should expect there is a quarry.
Laura Smallidge asked how the granite is being taken from the ground. Is it being taken over private roads? If the granite is being taken over a private road, does the Town have any right to be discussing the issue? Mr. Musson noted the ordinance is not designed to target any single quarry in particular, but to address any quarries that may exist or be proposed. To restate Ms. Smallidge’s question Mr. Musson noted he didn’t know that there were any provisions that deal with the rights to a private road if the quarry owns or has access to the private road, with the exception of road dust. He noted there are provisions in the ordinance for how the quarry would impact a Town road. Ms. Smallidge noted that in the case of Hall Quarry a private road was being used, and it could
conceivably be the same circumstance in other areas in the Town where quarries could potentially be allowed. What happens once the load reaches the public roads, and what is the impact on the Town?
Mr. Musson noted there were provisions in the ordinance so the Planning Board can ask these questions of any applicants. Chairman Brawley asked if the traffic increases on the public road a quarry accesses is there something in the ordinance allowing enforcement of traffic impact. Mr. Musson felt the Board would have to look further at the question. Mr. Pileggi opined that if there’s a violation of the ordinance the CEO can give them a notice of violation but the Planning Board is the enforcement arm. Chairman Brawley asked if there were a standard that they would be violating. Mr. Pileggi noted there was no standard; there was a traffic impact statement. Mr. Pileggi felt that there would be delay inherent in setting the Planning Board as the enforcement of the traffic impact.
Jock Williams voiced concern over the way stone in the quarry might be handled. He wondered whether it would be taken from where it lies or would it be cut from the ground. He noted he concurred with the people who had raised concerns over the quarries ill effects. However, he noted the history of Hall Quarry - when three thousand people worked in Hall Quarry and the rock helped to build the US Mint and the US Library in New York – was something people should remember and respect. The history has to be remembered. There should obviously be some containment of problems like noise and dust, but it’s an error to eliminate a quarry with so much history. Mr. Williams added that the Town does need the work the quarry would provide.
Mr. Grant added that he was from Millstone Township in New Jersey, and some dormant mining operations were activated. It caused dust, noise, road damage and erosion. Mr. Grant disagreed with Mr. Williams. He felt that mining and quarrying were in Mount Desert’s past and the future is tourism and environmental activities.
Sara Pierce asked if shaking and sizing of gravel was part of quarrying.
Chairman Brawley noted that in the ordinance they have already separated gravel pits from other mineral extraction. This ordinance continues to do that.
Anne Funderburk added that in the ordinance it says a quarry can extract rock but that it may not be processed into gravel on site.
C.H. Breedlove voiced concern regarding the noise. He inquired why there were no specific numbers or specific ways to measure the noise. He agreed with Mr. Pileggi that enforcement of noise control without any specific numbers would be difficult.
Mr. Musson noted there were myriad ways to regulate noise. The Committee discussed several ideas and they decided on this wording due to many factors. One factor being that noise was a town-wide policy decision as well as the question of what should and shouldn’t be regulated. There was also concern among committee members over how to enforce the rule and the burden it would place on the Town. Mr. Musson added there are no other noise standards in Town. The committee would have been specifically setting a noise standard for one industry, when there are no other noise standards set in town.
Laura Smallidge noted she was under the impression that the Town of Mount Desert has no quiet hours. Perhaps quiet hours in general was a good idea to consider.
George Davis didn’t see how anyone could possibly apply for a new quarry license under the proposed ordinance. He wondered if this new ordinance and the requirements of application and renewal put such a burden on an existing quarry that they are unable to successfully function. Mr. Musson couldn’t speak to the burden on a specific quarry but he did note that waiver provisions were included in the proposed quarry ordinance so that the case could be made that certain parts of the required submittal were burdensome and unnecessary and so could be waived. He added that some of the requirements are not applicable to an existing operation. Mr. Musson noted that having looked at other quarry standards what is required here is not uncommon. Mr. Davis voiced his confusion at how people who
moved next to a quarry that has been in existence for over 100 years can complain that it’s there.
Ms. Breedlove stated that the quarries went out of business and there were no operating quarries for years. In the past few years there has been some small operation of people coming in to get stone but very little actual quarrying. She felt those who’ve moved to the area didn’t know it was an active quarry.
Paul MacQuinn of Harold MacQuinn Inc. stated that Harold MacQuinn Inc. purchased the quarry in 1983. It has been an active quarry every year ever since. In the 30 years prior members of his family have quarried in the area. They have taken stone already free of the earth, but the time has now come that they need to cut more stone. He noted the maps of the area have the quarry marked as “quarry”. Mr. MacQuinn felt the new ordinance will impede their operation. Other grandfathered uses in the Town are allowed to continue with no restrictions and he has asked the advisory committee and the Planning Board to allow him the same right.
Jeff Gammelin of Freshwater Stone noted they have a lease with Harold MacQuinn Inc. He offered to answer any questions regarding his methods of quarrying or his intentions.
Chairman Brawley reminded the public that the discussion tonight is not focused on one particular quarry.
Erma Smallidge noted she had purchased her Hall Quarry land in 1990 with the understanding that there was no quarrying now and had not been for years. She stated she and her husband would not have purchased the land had they known otherwise. The quarrying is noisy and there needs to be something definitive regarding noise in the ordinance with criteria – otherwise the noise section of the ordinance is completely subjective. Ms. Smallidge noted the hours were 7am to 4pm Monday through Saturday and emergency maintenance can be done at any time. Theoretically, operation could continue nine hours a day, seven days a week. Ms. Smallidge acknowledged and respected the history of the area, however, she knew people who had lived in Hall Quarry in the 1940s that said there had been no quarrying. Ms. Smallidge wondered how a subdivision was permitted if quarrying had been ongoing as far back as 1984. She noted that in other states when someone buys land in the country, they sign a
disclosure stating they accept the fact that they may live near a farm and they understand the sights, sounds, and odors inherent in farming. She felt there should have been some kind of disclosure regarding the quarry if it were active at the time she and others bought land. She wondered who should have been responsible for such a disclosure.
Mr. Williams pointed out that they have moved stone from the quarry since 1972. It has been used as commercial property and they were granted a license to quarry when they bought the property. He noted that in most cases once the rock is out of the ground no further processing occurs, other than to cut it to fit it into a truck for removal. Mr. Williams estimated that between 80 and 90% of the quarry process occurs away from the actual quarry. Mr. Williams felt all the ramifications needed to be considered before banning quarrying altogether.
Mr. Breedlove noted that the point to consider was the definition of “active quarry”. An “active quarry” to his thinking is drills and blasting. He moved to the area in 1995 and that kind of quarrying never occurred. He only ever saw trucks come in occasionally to remove rock already removed from the ground. That kind of quarrying didn’t create noise or otherwise disturb things.
Mr. MacQuinn noted that MacQuinn’s was mining the area in the 1970s. Eventually the Musettis sold the quarry to Harold MacQuinn Inc., and they have been there since before there was an ordinance in the Town of Mount Desert. Harold MacQuinn Inc. did a large amount of work in the quarry in the 1980s with no problems. The rock created from that work has now been depleted and more quarrying has started. He noted Mr. Gammelin is willing to work with the residents to help alleviate the situation.
Chairman Brawley again reminded the public that discussion should be held to quarrying in general, rather than focusing on a particular quarry.
Erma Smallidge inquired, with regard to dust control, whether air quality testing would be done and by whom.
CEO Keene noted that a quarry would have to come before the Planning Board for a permit and the Planning Board would have to review the submittals, including dust control and air quality to make sure the standards are acceptable. Then it is the CEO’s responsibility to ensure the standards are maintained.
Erma Smallidge asked what “best management practices and procedures” were with regard to blasting as noted in the ordinance. She noted it referred to MRSA; she wondered how detailed that was and whether criteria was included.
Mr. Musson noted they referenced the MRSA for blasting standards however they may want to provide other provisions to give examples of best management practices such as blasting mats. The current iteration of the ordinance references state law. Ms. Smallidge noted that the work currently being done at the highway garage in Mount Desert includes blasting, and the contractors went to each neighbor to check foundations and every room in the house for cracks, took pictures, tested the well water. Mr. Musson noted that was part of the ordinance for quarrying.
Mr. Musson summarized that the committee has come up with the set of rules. The advisory group will now deliberate on things that need to be added, based on the conversation held tonight. At that point it becomes a policy decision for the Town of Mount Desert.
Laura Smallidge inquired whether Mr. Musson was able to find other ordinances to use as models. Mr. Musson noted several Towns have applicable ordinance models: Augusta, Wales, Washington, Lamoine, and Stonington. He noted a lot of ordinances aren’t doing what the Town of Mount Desert is trying to do, but parts are applicable.
Erma Smallidge noted, with regard to noise, that 85 decibels can cause permanent damage. She wondered if a hearing comparison chart would be considered.
Chairman Brawley noted hearing would be an issue they would take up.
Erma Smallidge noted that protection of natural resources was mentioned. How can natural resources be protected when they’re being cut from the ground. Chairman Brawley noted that the resources around the stone can be protected. Ms. Smallidge noted that stone does not grow back.
Ms. Breedlove inquired whether the Town would come up with a noise ordinance. Mr. Musson noted that was not the task of this advisory committee. It was a complex issue, and there were other forums where the issue could be discussed more effectively.
Erma Smallidge noted that she understood the licensing process may be expensive, but the depreciation on the residents’ property value was approximately half.
Anne Funderburk asked of Mr. Pileggi when an industrial or commercial operation causes marked decrease property values in the immediate neighborhood does this constitute an illegal taking. Attorney Pileggi noted that it was not an easy question, but in most cases the answer was no. Ms. Andrews felt it did not constitute a governmental taking, but it was a nuisance.
The meeting was tabled by general consensus at 7:35 pm. It was agreed to continue the meeting on June 24, 2013.
The meeting closed at 7:35 pm.
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