Public Present
Michael Ross, Dennis Smith, Noel Musson, Bill Haney, Story Litchfield, Chuck Bucklin, Martha Bucklin, and Stephen Mohr
Board Members Present
Sandy Andrews; Ellen Brawley, and Joseph Tracy
Kim Keene, CEO; Claire Woolfolk, Recording Secretary
I. The meeting was called to order at 6:02 p.m. by Ellen Brawley.
The agenda was amended by removing the discussion of item III. B. CUA # 001-2012, Terrance L. & Leslie L. Haynes. Mr. Tracy would recuse himself and without his participation in the hearing there would not be a quorum. The applicants had been notified prior to the meeting. CUA# 001-2012 will be heard on February 27, 2012.
MOTION TO AMEND THE AGENDA BY MR.ANDREWS; SECONDED BY MR.TRACY.
A VOTE WAS CALLED AND THE MOTION TO AMEND THE AGENDA CARRIED UNANIMOUSLY. (3-0)
II. Minutes
The approved minutes from the January 23, 2012 meeting were requested to be revised, noting that after Mr. Ross requested a letter from Acadia National Park approving the proposal for their viewshed, 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 agreed to the revision.
The Board could not formally revise the minutes at this time because a quorum of the January 23, 2012 meeting was not present. The revision will be made at a future meeting.
III. Public Hearings
Conditional Use Approval Application(s):
Mr. Mohr, agent for the applicant, had not yet arrived due to road conditions. It was agreed by Board members to take the hearings out of order and first address hearing B. for CUA# 003-2012.
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.
Continued from January 23, 2012
No conflict of interest was reported. Sandy Andrews, Ellen Brawley, and Joseph Tracy are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times on February 1, 2012 and Mount Desert Islander on February 2, 2012.
Chairman Brawley began by stating it appeared that all the items requested by Mr. Ross and Mr. Johnston have been submitted by Mr. Mohr’s firm except the letter from Acadia National Park, which the Board had said was not necessary. She asked other Board members if they agreed that the application is now complete. They agreed.
A MOTION TO FIND THE APPLICATION COMPLETE WAS MADE BY MR. ANDREWS; SECONDED BY MR. TRACY.
Discussion:
Mr. Ross did not think the application could be considered complete because he asserts the stormwater management report is not complete. There is a failure to incorporate all the property included within the application. He illustrated his argument with a diagram of the property. Also, Mr. Ross said he was confused about which plan has been submitted for approval. He doesn’t know what is being proposed since changes have been made that are not on the plan filed at the Town office as of this morning. Another concern is the methodology for controlling the water seeped over the wall, as well as the water being channeled in a different direction; what is going to happen with the natural water flow? Nothing in the submission addresses the water heading towards Mr. Rales’ property.
Mr. Ross submitted a report from Greg Johnston which supports his arguments. Board members took a few minutes to review the report. Mr. Tracy asked Mr. Ross for clarification of the complaint; is the issue that water flow from Mr. Rale’s property flowing across the property line onto Mr. Blair’s property will no longer be allowed to do so if Mr. Blair makes the proposed changes? Mr. Ross said that is correct and that with the stormwater plan submitted, his client does not have the engineering information as to what effect the changes will have to his property. Mr. Tracy said he did not have the expertise to know where the responsibility lies and wondered if the Board should postpone the hearing in order to get an opinion from MMA. Chairman Brawley said she didn’t see anything in the stormwater
section of the ordinance addressing this. CEO Keene asked what the reasoning is for why they have to address the abutting property’s flow of water onto the applicant’s property. The fill being proposed is directly behind the Blair house. The wall appears to be the cause of the issues that Mr. Rales has and the wall is not what the application is for; it (the wall) is not before the Board for consideration.
Mr. Ross countered that Section 6A.7 requires that the applicant show compliance with the ordinance. Mr. Ross read from the ordinance: Section 6A.7.5:
Existing swales or drainage courses that carry water through the site are to remain undisturbed to the maximum extent possible.
The existing water course that goes across the property line is clearly being disturbed.
Mr. Andrews said when the stormwater section was drafted, one of the concerns that was specifically addressed was one person doing something that caused water to back up onto another person’s property and causing damage to the abutting property. CEO Keene said that is for new construction. Mr. Andrews said that it is a new wall that will change the existing flow of water. Mr. Tracy said at this point there is no claim that the water will be backed up.
Mr. Smith, property manager for 33 years stated that he has never seen any water issues caused by either property to the other. He has seen 4-5” of rainfall without any flooding in the area under discussion.
Mr. Mohr, submitted a stormwater narrative and calculations that looked at the post-development watersheds. He said they did look at the sheet flow coming off of the Rale’s property; it isn’t a drainage course, it isn’t a drainage way, and it isn’t a swale. It comes across the lawn and onto the lower part of the Blairs lawn. Mr. Mohr described the construction of the wall and said that they specifically installed a crushed stone base under the wall to capture sheet flow in the storm system and redirect it back onto Blair’s property. The wall will not stop the flow, but redirect a small portion of it. He described to the Board the stormwater report with calculations and narrative to explain what his firm is doing. Mr. Mohr agrees that the Board must contemplate storm drainage
and that the applicant has the responsibility not to block natural drainage ways and swales. The area under discussion is a concentrated sheet flow and they are allowing it to continue onto the Blair property through the crushed stone. The flow is still being taken onto the Blair property, but down a little bit further.
Mr. Mohr feels the Board has a detailed set of calculations that document the concerns of Mr. Ross’ client. What Mr. Ross is submitting to the Board does not accurately reflect the sub drainage and catchments on the adjoining property. He said that the drainage issues have been thought about, looked at, and that he has had discussion with Mr. Ross’ team about this.
Mr. Ross responded that no data has been submitted that shows what the effects of the changes to the sheet flows are going to be with the water flow coming across from Mr. Rale’s property.
Mr. Andrews asked Mr. Mohr to show the Board where in the report it talked about the flow coming off the Rale’s property and how they were dealing with it. Mr. Mohr said he wasn’t sure it was in the submission documents, but that the wall placement allowed for flow. Chairman Brawley surmised that having a permeable base would allow the water to flow through. Mr. Andrews said that it should be in the submission and that no detail showing the drainage base is in the application. Mr. Tracy said there is a cross-section diagram in the submission. Mr. Mohr said there is not detail that shows the drainage base.
Mr. Ross said there isn’t any documentation in the submission showing how much flow is coming off the Rale’s property. He said that it may be that the gravel under the wall would work, but he can’t know that without the proper documentation. He said it’s the applicant’s obligation to give the details to support their plan.
Mr. Andrews agreed that it is the obligation of the applicant to show the plan is sound, and without the data they can’t really know. Chairman Brawley agreed and thought the Board should address the remainder of the application to see if there any further information is missing so that they can meet Mr. Ross’ requirements and proceed with the hearing.
Mr. Ross said that they need supporting evidence that the system along the property line will safely convey the run-off blocked at the property line by the wall’s construction. He felt that with that information he would be comfortable that they could evaluate a complete application.
Specifically what Mr. Ross requires:
• Have the calculations done by their engineer incorporated onto the contour map of Mr. Rales’ property and show what the effect of the change will be.
• Include the area by the wall where there is an indent in the wall which is about 7’ from the Rales house.
• Address what is going to happen on the Blair’s property as a result of the proposed changes.
Mr. Ross said that the point of a conditional use permit is to protect public and private rights of the neighbors and adjacent properties. He said proper engineering is needed to be sure that the abutters rights are protected.
Chariman Brawley reiterated that the application is for putting in fill in excess of the amount within the CEO’s authority. The wall, which is less than 4’ in height, is not subject to Planning Board approval and is a separate issue. CEO Keene added that the wall did not need a permit from her because it is less than 4’ in height.
Mr. Andrews supposed that the reason the wall is being built is to retain the fill that is being brought in. Mr. Mohr said the fill and the wall is to save a large spruce tree. The wall will also retain the fill, but that the wall is not before the Board for review. He restated that they are allowing the water flow to continue onto the Blair property. Chairman Brawley said they need to determine if the wall is sufficiently permeable to take care of the 25 year condition. She didn’t see evidence to support that in the submission.
Mr. Mohr asked the Board to look at the rest of the submission and provide guidance for any other issues that they would like further data on. Chairman Brawley agreed and the Board found that they were satisfied with the rest of the submission.
Mr. Andrews said that the ordinance states that the Board does not have to be satisfied with the stormwater plan; the CEO must find it acceptable because the Board does not have that expertise and it is up to the CEO to determine acceptability. The Board found that the stormwater plan meets the requirements of the submission under the ordinance and asked CEO Keene if it was adequate. She said she is satisfied that the plan is adequate; the flow of water is not impeded.
Mr. Ross said that he didn’t think that the plan met the requirements of clear and convincing evidence as required in the ordinance under Section 5.3.4.2. and that it is the for the Board to determine that the submission requirements are met. Mr. Tracy said the CEO has the expertise that the Board does not have on certain matters and that is why the ordinance states that it must be to her satisfaction. Mr. Andrews thought that clear and convincing evidence in this case is the CEO’s statement that stormwater runoff has been minimized and that it will not exceed pre-existing conditions. Mr. Ross said that at present, the existing run-off conditions are not known.
A VOTE WAS CALLED AND THE MOTION TO FIND THE APPLICATION COMPLETE CARRIED UNANIMOUSLY (3-0).
On January 23, the site inspection was attended by Chairman Brawley, Mr. Ross, Mr. Mohr and Mr. Smith; reported by Chairman Brawley. The property slopes down towards the sound and the area is closely abutted by a garage with an apartment above on Mr. Rales’ property. The Rales’ lawn slopes down towards the Blair’s property. There is a much larger swale on the north end of the site. The property is essentially level at the top on the east side of the house (less than 2% grade confirmed by Mr. Mohr).
Mr. Ross encouraged an additional site visit to get a clear understanding of what the new grade will be. Mr. Andrews said he was uncomfortable discussing this application since he wasn’t able to attend the site visit. Mr. Tracy said he would defer to the CEO since this has to do with drainage; if she is comfortable with what is being proposed, then he is fine with moving ahead.
Chairman Brawley said that further delays are not fair to the applicant, Mr. Blair. Mr. Andrews felt he would have to abstain since he hadn’t seen the site because he was unavailable when the site visit took place. If Mr. Andrews abstains, the hearing would have to be deferred due toa lack of a quorum. Mr. Tracy agreed that it was unfair to the applicant not to proceed, that if Kim were willing to sign off on it with her expertise, then they should continue. Mr. Andrews said his discomfort was not just about the drainage issue, it was about all of Section 6, such as visual impact.
Mr. Mohr said that he thought they had done a good job showing what the grades were going to be at the site by marking them with poles. Chairman Brawley said that the height of the fill will impact the view from the Rales’ property. It will have very little effect on the Blair’s visual impact because the windows are higher than the level of fill. Mr. Mohr made an affirmative statement in the documents asserting because there is an absence of tree removal inside the 75’ and because of the way they designed the terrain with the drains, there is not a visual impact and as a landscape architect he is qualified to make that statement. The visual impact statement is not about occluding views from the Rales’; the visual impact statement refers to the privacy of Mr. Blair’s lot and will be
primarily done through landscaping.
Mr. Ross was concerned about the statement of the grading fill having no visual impact on the public and the adjacent properties. Mr. Tracy said that is not a requirement of the ordinance to have no visual impact; everything has some visual impact. Mr. Mohr said the submittal should state that it won’t have a negative impact on the views. Chairman Brawley asked if he would like to insert the word “negative” between “no” and “visual”. Mr. Andrews said that the statement is a judgment and that the applicant can say whatever they want, but the Board must make its own determination.
The Board decided to quickly review the remaining items in the application to determine if any further clarification was needed. The Board concluded that the remainder of the application is fine. The hearing will be postponed until another site visit could be made and the applicant could submit further detail on the stormwater plan. Mr. Andrews suggested, while the Board would consider the application complete based on the CEO’s satisfaction with the stormwater plan as currently submitted, the applicant provide the data requested by Mr. Ross as well as details on the wall showing the contours and the water flow to avoid a future appeal. Mr. Tracy said it is not required since CEO Keene has authority and expertise to accept the stormwater plan, but the applicant is welcome to submit further information. Mr. Tracy
said that if the CEO has any doubts in her mind about the stormwater plan, she would ask for clarification.
Mr. Mohr thanked the Board for the advice. He asked CEO Keene about the statement in Mr. Johnston’s report that the wall is considered a structure and it is within the 25’ setback. CEO Keene said it does not need a permit from the town.
A date to continue the hearing was discussed. Mr. Mohr said the delay is bordering on being unfair to Mr. Blair. As soon as the applicant found out he had to come before the board, work on the project stopped. Mr. Mohr and Mr. Blair are not moving forward with the wall in effort to negotiate with the neighbor in an appropriate way.
CUA# 001-2012 will be continued on February 27, 2012 assuming a quorum of Board members is available.
A MOTION TO CONTINUE THE HEARING ON FEBRUARY 27TH WITH A SITE VISIT PRIOR TO THE MEETING WAS MADE BY MR. ANDREWS; SECONDED BY MR. TRACY.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (3-0).
The Board resumed Hearing B at this point. It was determined that both this application and the one following (CUA# 004-2012) had copy errors from the applicant’s submissions and that Mr. Hanley would need to complete the missing pages for both applications. The Board members moved on to item IV. New Business while Mr. Hanley completed the applications. (pg. 10, line 4)
B. Conditional Use Approval Application #003-2012
NAME(S): Charles E. & Martha L. Bucklin
AGENT(S): William Hanley, WMH Architects
LOCATION: 16 Tracy Road, Northeast Harbor
TAX MAP: 24 LOT: 67 ZONE(S): Village Commercial
PURPOSE: Section 3.4 – Services 3 Carpentry Business on first floor. Single Family Dwelling on second floor.
SITE INSPECTION: 4:00PM
No conflict of interest was reported. Sandy Andrews, Ellen Brawley, and Joseph Tracy are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times on February 1, 2012 and Mount Desert Islander on February 2, 2012.
Mr. Tracy asked for clarification as to why this application is before the Board. CEO Keene explained that because the use is not established at the location, it must come before the Board for approval. Apartments or dwellings within the village commercial district require a conditional use permit from the Planning Board, and the area is currently used for the storage of lumber. No offices are situated on the property; there is no building on site other than a storage shed/roofed structure for the storage of the lumber. The use of office space is not established there.
A MOTION TO FIND THE APPLICATION COMPLETE WAS MADE BY Mr. Andrews; SECONDED BY Mr. Tracy.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (3-0).
The site Inspection was attended by Mrs. Brawley and Mr. Andrews; reported by Mr. Andrews. The site is on Tracy Road just off of Neighborhood Road and across the street from the nursery school. The lot is a mostly level site and completely suitable for the proposed building. What is left of the existing structure is not in conformity with setback requirements. The proposed building is a mixed use residential and commercial office. It would be completely in keeping with other properties in the neighborhood. Across the street is a property with exactly the same type of structure. Also, Tracy Road has the same sort of configuration on one of the properties, as well as many similar arrangements on Main St.
Mr. Hanley, architect for the Bucklins, presented the project to the Board. He said it is pretty straight forward. There are three lots with common ownership. Lot number three, where this project will be located (the most northerly of the three lots), is a non-conforming lot just shy of the 5,000 square footage minimum required. They have been working with Mr. Jackson to have the lot line shifted to bring the lot into conformity. The lot change is being recorded at the Hancock County Registry of Deeds. On-site parking will be available for the commercial mixed use. It is a wood-frame two story structure that will have safety features to meet the ADA safety requirements as well as fire safety standards. A sprinkler system will be installed. ADA permit and Life Safety permits are in process of being
obtained. There has been a preliminary review with the State Fire Marshall as well as with CEO Keene. Mr. Hanley believes the proposal will be an asset to downtown Northeast Harbor.
CEO Keene reported a call from Mr. Lowell Chase, abutter, who asked, for privacy reasons, if the fence along the abutting right-of way was to stay. Mr. Bucklin said the building will serve as a fence. There were no other comments or correspondence from the public.
A MOTION TO APPROVE WAS MADE BY MR. ANDREWS; SECONDED BY MR. TRACY.
A MOTION TO USE THE EXPIDITED FORM WAS MADE BY MR. TRACY; SECONDED BY MR. ANDREWS.
A VOTE WAS CALLED AND THE MOTION TO USE THE EXPIDITED FORM CARRIED UNANIMOUSLY (3-0).
A review of the Standards of Section 6 of the LUZO, as amended May 3, 2011 was begun. During the review, the hearing was temporarily tabled due to copy error in the application while Mr. Hanley went to his office to make complete copies. The Board members went on to address item III. A., CUA# 002-2012 since Mr. Mohr had arrived. (pg. 1, line 44)
The Board resumed review of the Section 6 checklist after the hearing for CUA# 002-2012 and discussions of the subdivision changes under item IV. Other Business had been completed. The review of the Standards of Section 6 of the LUZO, as amended May 3, 2011 is as follows: See attached checklist for CUA # 003-2012.
A MOTION TO AMEND THE PRIOR MOTION TO APPROVE TO INCLUDE APPROVAL OF BOTH THE APARTMENT AND SERVICES 3 WAS MADE BY MR. ANDREWS; SECONDED BY MR. TRACY.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (3-0).
C. Conditional Use Approval Application #004-2012
NAME(S): Robert Clay Kanzler
AGENT(S): William Hanley, WMH Architects
LOCATION: 45 Main Street, Seal Harbor
TAX MAP: 30 LOT: 28 ZONE(S): Village Residential 2
PURPOSE: Section 6B.8 – Fences and Walls exceeding CEO authority.
SITE INSPECTION: 2:00PM
No conflict of interest was reported. Sandy Andrews, Ellen Brawley, and Joseph Tracy are the voting members for this hearing. It was confirmed that the notice was published in the Bar Harbor Times on February 1, 2012 and Mount Desert Islander on February 2, 2012.
A MOTION TO FIND THE APPLICATION COMPLETE WAS MADE BY MR. ANDREWS; SECONDED BY MR. TRACY.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (3-0).
The site Inspection was attended by Mrs. Brawley. The fence visually ties the existing residence to the studio being built behind. It did not appear to be out of scale with the area; it was not exceedingly high.
Patti Reilly, an abutter, called CEO Keene to point out that the fence exceeds the 6’ height limitation allowed by the CEO authority. Mrs. Reilly had no objection to the fence specifically; she just wanted to have it checked out. CEO Keene measured the fence and found it does exceed the limit. Therefore, it has come before the board after-the-fact to see if they will let it stand.
CEO Keene confirmed there had been no correspondence from the public. She reported that one abutter had stopped by the office earlier in the day to make sure that the fence was not going to be any higher as a result of possible approval. She assured the abutter that it would not change as a result of this hearing.
A MOTION TO USE THE EXPIDITED FORM WAS MADE BY MR. ANDREWS; SECONDED BY MR. TRACY.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (3-0).
A MOTION TO APPROVE WAS MADE BY MR. TRACY; SECONDED BY MR. ANDREWS.
The Standards of Section 6 of the LUZO, as amended May 3, 2011 were reviewed as follows: See attached checklist for CUA # 004-2012.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (3-0).
IV. Other Business (taken out of order)
Discussion of a possible revision to a previously approved subdivision known as “Long Pond Vista”, Tax Map 9 Lots 10-6 & 10-9.
Mr. Musson presented the proposed changes to Board members. Board members discussed whether or not a public hearing is required to move the right-of-way within this subdivision. Since no boundary lines are changing or lots being added, the Board determined that no public hearing is required.
A MOTION THAT NO PUBLIC HEARING IS REQUIRED TO APPROVE THE PROPOSED CHANGE BY MR. ANDREWS; SECONDED BY MR. TRACY.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (3 -0)
Mr. Musson produced correspondence indicating approval of the change from the two affected abutters on the right-of-way. CEO Keene said that all property owners in the subdivision must approve the change before the Board can sign the plats. Mr. Musson said he couldn’t get the subdivision property owners to sign the easement until the Planning Board had approved the change.
A MOTION TO APPROVE THE PROPOSED CHANGE SUBJECT TO THE WRITTEN APPROVAL OF ALL PROPERTY OWNERS IN THE SUBDIVISION KNOWN AS LONG POND VISTA AS EVIDENCED BY THEIR SIGNATURES ON THE REQUIRED EASEMENT WAS MADE BY MR. ANDREWS; SECONDED BY MR. TRACY.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (3 -0)
The Board returned to item III. B. CUA# 003-2012. (pg. 7, line 12)
V. Other
Mr. Tracy brought up a concern on the Haynes application regarding footprint and adequate parking. He questioned the maximum number of vehicles to be stored and where they would be stored. He didn’t see that explained in the application. He would like to see the dimensions noted. He will be abstaining from this hearing on February 27th, and wants the Board to address these issues with a condition on the approval for the parking area and maximum number of vehicles to be stored/parked on the premises.
Mr. Tracy asked if this was an after-the-fact permit. Mr. Andrews said Mr. Haynes has a sign up on the property stating what services he provides. Mrs. Brawley has also seen the sign; it doesn’t talk about cars, it refers to mowers etc. CEO Keene said they had talked about signage and that Mr. Haynes would need a permit.
CEO Keene said that she appreciated that Mr. Tracy looked at the application and brought the concerns to her prior to the hearing. She encouraged the Board members to review the applications and bring items they would like addressed prior to the hearings so that the applicants have a chance to respond to them for the hearing.
Mr. Andrews pointed out to Board members that Mr. Bucklin has a large piece of construction equipment that he owns on his property here in town. Under the ordinance, it is legal for him to park the equipment in his driveway, within the village commercial zone and drive it up the road to his other lot. This speaks to the irony in light of the controversy with Mr. Andrews’ proposed LUZO change on construction equipment.
V. A MOTION TO ADJOURN WAS MADE BY Mr. Andrews; SECONDED BY Mr. Tracy.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (3-0)
Meeting adjourned at 8:27 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Tuesday, February 14, 2012 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Sandy Andrews, Secretary
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