Mount Desert Planning Board Meeting Minutes
Town Hall Meeting Room, Northeast Harbor
January 9, 2012
Public Present
Diane Miller, Douglas M. Miller, Bob Goshlin for AT&T, Dick Broom, Valerie Cachon, Carolyn Felkel, Barry Hobbins for AT&T, Benjamin E. Caron for AT&T, Deborah Reed, Lili Andrews, Richard Fuerst, Lynne Williams for Abutters, Susan Myers, Greg Johnston
Board Members Present
Sandy Andrews; Ellen Brawley, Chair; James Clunan, Vice Chairman; Patti Reilly, Secretary; and Joseph Tracy
Kim Keene, CEO; Claire Woolfolk, Recording Secretary; Diane O’Connell, Attorney for the Town
I. The meeting was called to order at 6:00 p.m. by Ellen Brawley.
II. Minutes
Approval of minutes was tabled for a future meeting due to the number of items for discussion on the agenda.
III. Public Hearings
Conditional Use Approval Application(s):
A. Conditional Use Approval Application #017-2011
NAME(S): Timothy H. Gott
AGENT(S): Barry J. Hobbins, Esq.
LOCATION: 400 Pretty Marsh Road/Pasture Farm Way, Mount Desert
TAX MAP: 11 LOT: 8-1 ZONE(S): R2 & RW3
PURPOSE: Zoning Board of Appeals remand.
No conflict of interest was reported. Sandy Andrews; Ellen Brawley, James Clunan, Patti Reilly, and Joseph Tracy are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times on December 28, 2011 and Mount Desert Islander on December 29, 2011.
Chairman Brawley began the hearing by reading into the record the following statement:
The decision of the Zoning Board of Appeals stated: “This matter is remanded to the Planning Board with specific instructions that the Planning Board reconsider the adequacy of the Visual Impact Assessment and possibly accept new evidence concerning the visual impact of the proposed use on the neighboring private residences.”
The applicant has provided further evidence demonstrating the visual impact from neighboring private residences. The purpose of this hearing, therefore, is to determine the adequacy of that evidence and to hear any NEW evidence concerning the visual impact from the neighboring residences. Please limit your testimony to this topic, which is Section 6B.17.8.g of the LUZO.
A MOTION TO FIND THE APPLICATION COMPLETE WAS MADE BY MR. CLUNAN; SECONDED BY MR. TRACY.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
Mr. Tracy and Mr. Clunan went to the site visit in September. The site visit had not been reported at the October 11, 2011 meeting because CEO Keene informed the Board and members of the public that AT&T’s attorney, Mr. Hobbins, had filed an 80B Rule Appeal with the Superior Court prior to the hearing taking place. Mr. Tracy reported that on the September site visit he and Mr. Clunan had to wait for the wind and fog to clear so that they could see the balloons at the appropriate height in order to make their judgments. There was a “balloon flyer” that was present to tell them when the balloons were at the correct elevation. They were able to view the balloons from three residential sites, and once from the road which was not required. Mr. Tracy concluded that it was a thorough and successful site
visit and he is satisfied with the information they gained. Chairman Brawley added that on the June 20th site visit, several of the other board members saw the balloons from various neighboring sites; she personally observed them from Deborah Reed’s porch and the vacant lot. Mr. Andrews noted that the original site visit for the June 20th meeting was reported as well as the Board members opinions as to what they saw at the June 20th meeting; it is a part of the recorded record of the hearing.
Mr. Hobbins introduced individuals present representing the interests of AT&T. For the record he referenced the Submission Letter dated December 16, 2011 in the binder outlining the history of what has happened with this application to date.
Mr. Hobbins said that findings from the Zoning Board of Appeals (ZBOA) August 23, 2011 appeal only upheld the visual impact for review. The ZBOA saw the minutes but had not listened to the recorded record (tape) of the meeting and made decisions based on their findings, which are very specific. They found that all applicable LUZO standards had been met by AT&T except the visual impact assessment, which they determined to be inadequate to make a decision from. The appeal should only be upheld in regard to the visual impact of the use. It was remanded back to the Planning Board to specifically reconsider the adequacy of the visual impact assessment and possibly accept new evidence for the visual impact.
Mr. Hobbins then introduced Mr. Caron’s qualifications for generating the visual assessment submitted to the Board in September. Mr. Caron presented his assessment to the Board and to the public, explaining in detail the process he used to come up with the final analysis, which is within three inches of accuracy. He then fielded questions from Board members.
Attorney Lynn Williams, representing the abutters Reed & Miller, commented on the allegations Mr. Hobbins presented in his response to her arguments, dated January 5, 2012. She rebutted that the Aubry decision from the Superior Court, where it was held that a part of the Town’s LUZO was found to be “unconstitutionally vague” (§6A.9 – Preserving the Town’s Character), does not in any way support the allegation that §6A.1 - Compatibility as being unconstitutional. Ms. Williams said that she and her clients were very pleased with the second visual assessment and that it was thorough and showed an understanding of the locations to be taken into account (the abutting properties). She addressed the Board by saying the new evidence only takes into consideration the locations of the abutters
and that the Board needs to make a subjective decision on whether the visual impact data is sufficient to make the decision whether to approve or deny the permit application. She then notified the Board that the citizens of the community would be gathering signatures to make a moratorium on cell phone towers in response to Acadia National Park’s initiative to work with the towns on the island to develop a build out plan on the island. The Park is willing to look at towers on high elevations in the park, such as Cadillac Mountain and Beech Hill, which would cover a huge swath of the island.
Mr. Hobbins stated for the record, the decision of the ZBOA was very narrow and that the evidence Ms. Williams submitted is irrelevant. He wanted to make sure everyone is aware that there is evidence in the file that the Park does not object to the Tower under this application.
Mr. Fuerst, a neighbor close to the abutters’ locations, stated that he is glad that the Planning Board and citizens are finally addressing the issue of the visual impact of nearby areas and to specifically to meet the requirements of the LUZO. He feels that even the current visual assessment still is not representative of the three arrays that could potentially be placed on the tower. The current assessment only shows one array and that showing only 1/3 of the potential is not a true photo simulation. Mr. Hobbins responded that the tower is shown as designed; that it is impossible for AT&T to know what co-locator arrays would look like, although they couldn’t be wider than AT&T’s. Also, that the Planning Board would be reviewing any such arrays as part of the CUA needed to approve them.
Mr. Andrews agreed with Mr. Fuerst’s point that the photo simulations are not in strict compliance with Section 6B.17.8.(g) which calls for the simulation to show the tower at “design capacity” (in this case three antenna arrays to allow for co-location – the submitted simulation only shows one antenna array). However, Mr. Andrews continued that he did not think it was difficult to draw in the other two arrays in one’s imagination and that, accordingly, he felt the assessment was adequate.
Mr. Fuerst also asked that the Board use the LUZO to relook at the visual impact under 6A.1- Compatibility to permitted uses, which are limited to 40’. He would like the Board to use tools they have to deny the application. Mr. Hobbins opposed this argument that Mr. Fuerst raised by restating that the ZBOA rejected all other issues, leaving only one for the board to review, which is Section 6B.17.8.(g). Chairman Brawley stated that the ZBOA had already denied the appeal based on Mr. Fuerst’s 40’ argument and that the current hearing was dealing solely with the LUZO Section 6B.17.8.(g).
Carolyn Felkel, a neighbor on Pretty Marsh Road, stated that she is fine with the tower being there and her neighbors, the Willis’, also agree and support a tower being placed there.
Chairman Brawley asked if there were any further new comments from the public. None were forthcoming and the hearing was closed to further comments from the public.
A MOTION TO THAT AN ADEQUATE VISUAL ASSESSMENT HAS BEEN PROVIDED WAS MADE BY MR. TRACY; SECONDED BY MR. CLUNAN.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
A MOTION THAT THE APPLICATION BE APPROVED WITH THE PERMIT CONDITIONS SPECIFIED ON JUNE 21ST BY MR. TRACY; SECONDED BY MR. CLUNAN.
The conditions were read into the record.
The Standards of Section 6B.17.8.g of the LUZO, as amended May 3, 2011 were reviewed (see attached record of findings). The Board began their deliberations with comments from Diane O’Connell, Attorney for the Town, advising members to limit the discussion to the impact of the new visual evidence and whether it changes the Board’s decision on June 21, 2011.
Discussion was limited to the visual impact under Section 6B.17.8.(g). The Board found that the supplemental visual impact assessment sufficiently addressed the visual impact of the tower from the three abutting residences and that the visual impact was not unreasonable. Mr. Andrews pointed out that it would be impossible to place an effective tower in an area that would not be visible to some degree by someone. The Board has to determine if what is visible is reasonable.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED (4-0). Reilly abstained.
A short recess was called and the meeting reconvened at 7:49 p.m.
B. Conditional Use Approval Application #030-2011
NAME(S): Wynnestay, LLP
AGENT(S): G.F. Johnston and Associates
LOCATION: 125 Peabody Drive, Northeast Harbor
TAX MAP: 3 LOT: 35 ZONE(S): SR2
PURPOSE: Section - 6C.7 - Marine and Freshwater Structure
Performance Standards.
SITE INSPECTION: 3:30PM
No conflict of interest was reported. Sandy Andrews; Ellen Brawley, James Clunan, Patti Reilly, and Joseph Tracy are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times on December 28, 2011 and Mount Desert Islander on December 29, 2011.
A MOTION TO FIND THE APPLICATION COMPLETE WAS MADE BY MR. ANDREWS; SECONDED BY MR. CLUNAN.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
The site Inspection was attended by Mr. Andrews, Mr. Clunan, Chairman Brawley, and Mr. Johnston; reported by Mr. Andrews. The site is off 125 Peabody Drive. It is slopes steeply towards the water where it turns into 25’ high cliff over a rocky beach. At high tide the water comes 6’ up the cliff from its base. At low tide the water recedes approximately 50’ from the base of the cliff. The site where the dock is located will be visible from the other side of the harbor, particularly from the Burden and Milliken properties, and Wheelwright Point. It was hard to determine the visibility from sites east of the dock. There are several docks visible from the site where this dock will be and there are other docks to the east. Mr. Clunan added that the site of the float was buoyed for
visual impact.
Mr. Johnston made a presentation to the Board of the project including surveys of the area. The plan indicated 6’ wide stairs; the intention is to have 4’ wide set of stairs to comply with the ordinance. An adjustment was made to the plans by Mr. Johnston. He also added that the size of the proposed dock is considered small as compared to docks on either side and that this dock would be compatible in the area.
Mr. Johnston indicated that the property owner has contacted his neighbors to ensure their approval of this project. None of the neighbors had declared any negative opinions. Mr. Johnston further noted that a neighbor was currently allowing the applicant to utilize his dock, but the applicant had no legal right to do so.
There were no other comments from the public. CEO Keene confirmed there had been no correspondence from the public. She spoke with Mr. Murphy, Harbor Master, who approved the project and said that it would not interfere with navigable waters or moorings in the area.
A MOTION TO APPROVE WAS MADE BY MR. ANDREWS; SECONDED BY MR. CLUNAN.
The Standards of Section 6 of the LUZO, as amended May 3, 2011 were reviewed as follows: See attached checklist for CUA # 030-2011.
A MOTION TO AMEND THE PRIOR MOTION TO APPROVE TO INCLUDE PERMIT CONDITIONS WAS MADE BY MR. ANDREWS; SECONDED BY MR. TRACY.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (5-0).
A MOTION TO APPROVE THE APPLICATION SUBJECT TO ALL APPLICABLE STATE AND FEDERAL PERMITS BEING OBTAINED PRIOR TO CONSTRUCTION WAS MADE BY MR. ANDREWS; SECONDED BY MR. CLUNAN.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (5-0).
IV. Other Business
A. Northeast Harbor Masonic Lodge seeks recommendation from the Planning Board to the Board of Selectmen for DOT directional signage as a civic organization as per LUZO 6B.15.4.5.
The Board discussed whether a private fraternal organization meets the requirements under Section 6B.15.4.5.
A MOTION THAT A PRIVATE FRATERNAL ORGANIZATION DOES NOT MEET THE REQUIREMENTS OF SECTION 6B.15.4.5. WAS MADE BY MR. ANDREWS; SECONDED BY MR. CLUNAN.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
The Board will not recommend that the Freemasons of Northeast Harbor be allowed to erect a civic organization sign.
B. Interview of candidate(s)
Lili Andrews was invited to join the Board for a discussion. She gave the Board an overview of her qualifications and then answered their questions. One specific issued discussed was having siblings on the Board. It was reported by CEO Keene that Joelle Nolan, Town Clerk, indicated that there are no regulations against siblings serving on a Board. Both Mr. Andrews and the candidate felt that the issue would not pose any conflicts to their simultaneous service on the Board.
CHAIRMAN BRAWLEY MADE A MOTION TO RECOMMEND MS. ANDREWS JOIN THE BOARD; SECONDED BY MR. CLUNAN.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (4-0) Mr. Andrews abstained.
Chairman Brawley will write a letter of recommendation to the Board of Selectmen for the appointment of Ms. Andrews to the Planning Board.
V. A MOTION TO ADJOURN WAS MADE BY Mr. TRACY; SECONDED BY Mr. ANDREWS.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (5-0)
Meeting adjourned at 9:10 p.m. The next scheduled meeting is at 6:00 p.m., Tuesday, January 10, 2012 in the Community Room, Somesville Fire Station, Somesville.
Respectfully submitted,
ORIGINAL SIGNATURE ON FILE IN TOWN OFFICE
Patti Reilly, Secretary
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