Town of Mount Desert Planning Board Meeting Minutes
January 23, 2012
Town Hall Meeting Room, Northeast Harbor
Public Present
Alison King, Stephen Mohr, Story Litchfield, Greg Johnston, Michael Ross, Peter Roy, Dennis Smith, Ellen Kappes, Moorhead Kennedy, George Grohs, and Katrina Carter
Board Members Present
Lili Andrews, alt.; Ellen Brawley, Chair; James Clunan, Vice Chairman; Patti Reilly, Secretary; and Joseph Tracy
Kim Keene, CEO; Claire Woolfolk, Recording Secretary; James Collier, Town Attorney
I. The meeting was called to order at 6:02 p.m. by Ellen Brawley.
A review of the agenda was made and the agenda was amended.
MOTION TO REMOVE THE PRELIMINARY DISCUSSION OF THE PROPOSED WIRELESS TELECOMMUNICATIONS TOWER FROM THE AGENDA BY MR.TRACY; SECONDED BY MRS. REILLY.
A VOTE WAS CALLED AND THE MOTION TO AMEND THE AGENDA CARRIED UNANIMOUSLY. (5-0)
The Preliminary Discussion of the Proposed Wireless Telecommunications Tower located at 1049 Main Street, Somesville was removed from the agenda.
It was agreed to take the Agenda Items out of order and first address Items III and IV.
II. Minutes
The draft minutes from the January 9th meeting and January 10th workshop were unanimously approved.
A MOTION TO APPROVE THE MINUTES FROM THE JANUARY 9, 2012, MEETING AS AMENDED WAS MADE BY MR. TRACY; SECONDED by MRS. REILLY.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (4-0)
A MOTION TO APPROVE THE MINUTES FROM THE JANUARY 10, 2012, WORKSHOP AS WRITTEN WAS MADE BY MR. CLUNAN; SECONDED by MRS. REILLY.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (4-0)
III. Public Hearings
Conditional Use Approval Application(s):
A. Conditional Use Approval Application # 002-2012
NAME: Edward McCormick Blair, Jr. 50% int. & Francis I. Blair, 50% int.
AGENT: Mohr & Seredin Landscape Architects – Stephen B. Mohr
LOCATION: 66 Manchester Road, Northeast Harbor
TAX MAP: 27 LOT: 4 ZONE(S): Shoreland Residential 2
PURPOSE: Sections 3.4 & 6B.7 – Excavation or filling in excess of 50
cubic yards.
SITE INSPECTION: 3:30PM
No conflict of interest was reported. Lili 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 January 11, 2012 and Mount Desert Islander on January 12, 2012.
A MOTION TO FIND THE APPLICATION COMPLETE WAS MADE BY Mr. Clunan; SECONDED BY Mr. Tracy.
Discussion of the completeness of the application began. Mr. Johnston has been retained by Mr. Rales (an abutter) to review the application and found it was lacking required submittals. He stated that Section 5.8 of the Town’s LUZO requires that the burden of proof is on the applicant to submit a complete application. Mr. Johnston specifically pointed out the following items:
1. Sec. 6A.2 (5) Drainage ways and outlets. Concerns that the plan take into consideration 25 year storm or greater.
2. Section 5.8 (8) 8. Floodplain management. The application is absent any information demonstrating compliance with the Flood Management Ordinance.
3. Sec. 6C 3.2 Clearing of vegetation. The applicant is proposing to cut trees in the 75ft buffer. The application does not contain any information regarding this cutting being made under the 250 square foot allowed opening. He also said the application doesn’t provide evidence that the removal of the trees in the 75ft buffer will leave enough vegetation to be compliant with the point system.
4. Sec. 6C 3.3 The application does not provide information regarding the size of the 6-7 trees that will be removed in this project, and therefore the Board would not be able to verify compliance with this section.
Mr. Johnston submitted a letter outlining his concerns to the Board. He would like the Board to look at the total picture of the proposed work. Runoff may not be reduced and the impervious area decreased; removal of trees and adjusting the steepness of the slope can have unintended effects.
In addition to Mr. Johnston’s comments, Mr. Ross, attorney for Mr. Rales, also doesn’t think there is enough information in the application to determine if the standards have been met. The house owned by Mr. Rales is about 5ft from the boundary line and is not shown on the submitted plan. His client reported that he has had less than a week to review the application, stating that he received notice on 1/13/12. Mr. Ross outlined several items he felt were necessary to complete the application.
Mr. Collier, attorney for the Town, recommended that Mr. Johnston slowly dictate his requested documentation to the Board’s Secretary, Ms. Reilly, so that she could document all requested information.
In addition to the items named by Mr. Johnston, Mr. Ross would like the following items in the application before the Board considers it:
1. FEMA map showing where the floodplain is located.
2. Letter from Maine Historic Preservation regarding the visual impact on historic resources. (Section 6C.2)
3. Letter from Acadia National Park approving the proposal for their viewshed.
4. Comprehensive Plan regarding prehistoric and archaeological resources; confirm that this area is not considered a prehistoric archaeological resource (Section 5.8.6).
Mr. Tracy said he didn’t agree that a letter from Acadia National Park was necessary since the area of work is not in their direct viewshed. Further, it is not part of the by-laws and the Board has never required one before. Mr. Ross stated that per the application, he can’t tell if there will be a visual impact from the water. Mr. Collier questioned if Mr. Ross was referring to Section 6A.1 or 6A.9 for visual impacts.
Mr. Mohr, the landscape architect for the Blair’s, stated that he has been in discussion with Mr. Ross for several days to determine how to address Mr. Rales’ concerns. His firm has put together stormwater calculations, a stormwater narrative, & stormwater plan included on submitted site plan indicating existing stormwater drainage piping that currently exists on the property, and proposed drainage piping locations, and where they would connect into the current stormwater system on the site.
Mr. Mohr addressed the concern about the flood hazard zone, saying that the elevation of the area being filled is above high tide. He said he also looked at the FEMA flood map and the proposed job site is 9 -17ft above the flood zone.
CEO Keene confirmed that the area to be filled is not in the flood plain.
Mr. Mohr spoke to the issue regarding the trees by saying that the existing trees are identified on the property. There was one tree in the 75ft zone scheduled to be removed, but it will not be removed. He also said there are plans to aerate the area. He commented that the site would exceed vegetation coverage requirements. Mr. Mohr deferred to the board to determine if additional documentation was needed.
Mr. Clunan asked Mr. Ross if the concerns he raised would be resolved if the missing documentation were available to be addressed. Mr. Ross responded by saying he would consider the application complete when all documentation required by the Ordinance was received.
Mr. Tracy asked Mr. Mohr if it would be a problem to present the documentation to meet Mr. Rales, Mr. Ross and Mr. Johnston’s concerns. Mr. Mohr said that it would not be difficult to present the documentation requested. He said that if the Board is not comfortable moving forward without the requested documentation he would understand. He added that it is Mr. Blair’s intent is to make this his year-round residence.
Mr. Mohr asked that the board determine if there were additional requests so that all concerns could be addressed. The Board had no further requests for documentation at this time.
Mr. Tracy suggested the Board table the application until the requested documentation was received and to withdraw the motion to find the application complete.
A MOTION TO TABLE THE APPLICATION MADE BY Mr. Tracy; Seconded by Ms. Andrews.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
For the record, the applicant understands why the application has been tabled and is in agreement to comply with the request for further documentation as discussed.
IV. Subdivision – Public Hearing
Moorehead C. Kennedy, Trustee, 13 Pray's Meadow Road, Tax Map 012 Lot 031-004, per Section 5.13 (Mount Desert Subdivision Ordinance) "Plan Revisions After Approval" (2) - If the revision involves the creation of additional lots or units, or extends the boundaries of the subdivision, and Title 30-A §4406 (1) (E) of the Maine Revised Statutes Annotated.
CEO Keene stated that all abutters within a 1,000ft radius have been properly notified. No conflict of interest was reported. Lili 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 January 5 & 6, 2012 and Mount Desert Islander on January 11 & 12, 2012.
Mr. Roy, on behalf of Mr. Kennedy, gave a brief history of Mr. Kennedy’s use of his property. Mr. Kennedy built a guest house for his family to use and when family members were not using it as Mr. Kennedy had hoped, he began to rent it out. Neighbors reported that in this zone, a guest house could not be rented. Further, the lots did not meet frontage standards and were non-conforming lots. Later Mr. Kennedy acquired a 10 acre contiguous lot that was not part of the sub-division. Last summer, a map was drawn that incorporated the 10 acres Mr. Kennedy acquired with his original lot and a cul-de-sac put in to his lot bringing the property into conformity with the LUZO dimensional requirements. Mr. Roy came before the board in July to present Mr. Kennedy’s
request to amend his property in the subdivision. The Board approved the amendment and it was recorded in the Registry of Deeds. Ms. King, attorney for the neighbors opposed the plan because there had never been a formal public hearing. Currently there is litigation on behalf of the Wrights (an abutter within the subdivision) because there was not a public hearing.
CEO Keene stated that the Planning Board voted in July that the subdivision did not require a public hearing because the subdivision boundaries were not being changed and additional lots were not being created by the plan as presented to the Board.
Mr. Collier clarified that CEO Keene and the Board did not know and were not made aware that the additional 10 acre lot was not part of the original subdivision. Had he been aware that the 10 acre lot was being added to the subdivision he would have told the Board they couldn’t do that without a hearing because it is necessary to obtain the permission of the subdivision neighbors at the very least. Adding the 10 acres to the subdivision changes the boundaries of the subdivision. Additionally, the 10 acre lot is without road access and has no road width/frontage, and therefore is not a lawful lot. It was his and the Town’s understanding that the subdivision neighbors were thought to be on board with the amendment and that the neighbors and Mr. Kennedy were working for a
common solution; that Ms. King’s lawsuit had been tabled until all parties could come into agreement.
Mr. Roy explained that it was Mr. Kennedy’s intention to keep the 10 acres as undeveloped and available to all subdivision property owners as open space with pedestrian & non-vehicular pathways; it was never intended to become part of the subdivision. Mr. Kennedy is willing to put a deed restriction or restricted covenant on the 10 acre parcel to that effect.
There was confusion as to what Mr. Kennedy and Mr. Roy were bringing before the Board for approval (sub divide an existing lot, merge a newly acquired parcel into the subdivision, amend lot access and add a cul-de-sac, etc.). It remained unclear throughout Mr. Roy’s presentation.
Ms. King, attorney for the subdivision neighbors, said she had her clients almost in agreement with adding the 10 acre lot to the subdivision with a deed restriction attached until the new plan was submitted. She stated that she had several pages of problems to address with the new submission that Mr. Roy presented tonight and is ready to discuss them, but she was unclear as to what was actually being presented before the Board. She said that the division of lot 4 which has been conveyed has created a whole host of new issues. Ms. King said her client’s litigation could be solved if Mr. Kennedy would record a new plan that does not include the additional 10 acres as part of the subdivision. Once the new plan is recorded it would negate the previously recorded plan and eliminate the need
for litigation. However, regardless of the 10 acre lot, there are issues with the newly created lot that was recently conveyed.
Mr. Collier said that Ms. King’s solution doesn’t solve the Town’s problem with the 10 acre lot, which is that it is an unlawful lot without road width/frontage or easement to allow access to the lot.
Possible solutions for the unlawful 10 acre parcel would be that Mr. Kennedy includes it as part of his lot with the Board’s and the neighbor’s written approval of all property owners within the sub-division (possibly attaching a deed restriction). Or he keeps it as a separate lot and obtains an easement through the sanctuary abutting the lot from Mr. Harris.
Mr. Collier suggested that Mr. Kennedy revise the plan to reflect the discussions. The plan presently before the Board does not reflect the prior discussions. He suggested that the Board not hear this application at this time and that Ms. King continue with her lawsuit.
A MOTION TO TABLE THE APPLICATION MADE BY Mr. Tracy; SECONDED by Ms. Andrews.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
The renter of Mr. Kennedy’s guest house made a statement. He expressed his view that the entire situation is petty and a waste of time and money for all involved. He said that it is unfortunate that a part-time resident has a problem with his renting the “guest house” and that his family has to be uprooted.
Other Business
Mr. Clunan spoke to Pat Foster and asked her to be a member of the view/vista advisory committee. She replied that since she is a part-time resident and is retired she didn’t feel that she was the right person to join the committee. She did convey a concern that there will be more regulation as a result of the project. She gave him more names of people to contact.
V. A MOTION TO ADJOURN WAS MADE BY Mr. TRACY; SECONDED BY Mrs. ANDREWS.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (5-0)
Meeting adjourned at 7:50 p.m. The next scheduled meeting is at 6:00 p.m., Tuesday, January 31, 2012 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Patti Reilly, Secretary
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