Public Present
Stephen Mohr, Terry Haynes, Leslie Haynes, Michael Ross, Greg Johnston, Story Litchfield, Sam Coplon, and Dennis Smith
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
- The meeting was called to order at 6:05 p.m. by Ellen Brawley.
It was agreed to take the agenda items out of order and first address Item III.
Motion to take the agenda out of order AND ADDRESS THE PUBLIC HEARINGS FIRST by Mr.Clunan; seconded by Mr. Tracy.
A VOTE WAS CALLED AND THE MOTION TO AMEND THE AGENDA CARRIED UNANIMOUSLY. (5-0)
Approval of the draft minutes from the February 16, 2012 meeting was tabled due to the number of public hearings on the agenda.
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: 4:00PM
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 February 15, 2012 in the Bar Harbor Times and February 16, 2012 in the Mount Desert Islander.
It was noted that the motion to find the application complete was made and carried at a previous meeting.
The site inspection was attended by Ellen Brawley, Jim Clunan and Lili Andrews; reported by Mr. Clunan. Also present was Mr. Mohr, Mr. Coplon, Mr. Johnston, Mr. Ross, and CEO Keene. Mr. Mohr showed those present where the berm would be located to the west of the house by the placement of blue flags (between the house and the sound). He also explained the project and the drainage system that is underneath the fill at a depth sufficient to prevent freezing in the winter. The system would drain the water from the southwest side of the house to a wooded area to the north between the property line and the abutter’s property belonging to Mr. Rales. Those present also spent time looking at the proposed wall which would extend westward from the existing wall for about 80 feet. The 80 feet
of wall would be made up of granite blocks which are approximately 24” X 12” X 28”. The proposed berm to the north of the wall is meant to capture water and direct it towards the drainage system. The wall as it slopes down westward towards the sound steps down. Lowest height of the wall is 18” and highest point of the wall is 46” (towards the east). The retaining wall to the west of the house will be built on top of the fill. The proposed retaining wall will have its footing on the existing grade with fill added on either side.
CEO Keene confirmed there had been no correspondence from the public.
Mr. Ross questioned if abutter’s notices went out. He thought that there was a requirement that abutter’s notices go out for each public hearing and cited wording from the LUZO Section 5.3.3. He believes that his client, Mr. Rales, did not receive proper notice of this hearing. CEO Keene said the meeting was continued and therefore additional notices were not required. She said that the Town attorney, James Collier, said at the January 23 meeting, that abutter’s notices were not required for a continued meeting and that Mr. Ross had indicated his agreement with a nod.
Mr. Ross responded to a question posed by Mr. Tracy that he would like to postpone this hearing until his client receives proper notice.
A Motion to continue the HEARING at aN APPROPRIATE TIME IN THE future to allow for proper abutter notices to be sent out was made by Mr. Tracy; seconded by Patti Reilly.
Discussion
Mr. Tracy suggested that the Board go ahead with the meeting as scheduled and check with MMA as to whether they thought additional abutter’s notices were required. If MMA finds that additional notices were required, the Board would review the application again at a future meeting.
Mr. Mohr commented that the Town Attorney had said this hearing was a continuation.
Board members agreed that “each” pertained to separate hearings and that a hearing which is continued is still the same hearing. Mr. Clunan didn’t see that it would do any good to delay the hearing.
A VOTE WAS CALLED AND THE MOTION TO CONTINUE THE MEETING AT A LATER DATE DID NOT CARRY. (0-5)
A revised version of the plan had been submitted to the Board for consideration by Mr. Mohr. Mr. Mohr made a statement regarding the structures and additional documentation. He said after the meeting on February 13, the drawings were revised to make the wall reflect the discussions they had with the abutter, Mr. Rales. Additional drainage has been added to the plan. Further verbiage has been added to the application to address the swales and drainage courses being interrupted by the project. Separate exhibits were submitted to respond to each of the criteria the Board will be looking at for 6A, 6B, and 6C. Also, a response to the setback requirement for the wall was addressed by CEO Keene. Her interpretation is that the wall is not considered a structure subject to setback
requirements. The wall that extends into the 75’ setback for the shore has been addressed with the DEP. Mr. Mohr said he has been in discussions directly with Mr. Coplon, a landscape architect retained by Mr. Rales, and Mr. Rales himself regarding the notion of a common grading scheme.
Mr. Coplon was asked by Mr. Rales to step into the process to address his concerns with the amount of fill and the treatment of the fill along the property line with regards to the wall and the amount of planting proposed to screen the two properties. Mr. Coplon said the issues raised are important because there is a long-standing tradition along this stretch of Manchester Road for common landscape in this area. There is a time-honored and shared experience of the view up and down the sound. Mr. Coplon stated that there is a mutual interest to come to an agreement to blend the grades between the two properties and to address drainage and the continuity of the land form. His client wants to make sure that the reasons for the fill going in will be addressed to a mutual satisfaction. The two
parties are working towards the common goal. In essence, the proposed harsh edge between the two properties is not in keeping with the historical character of the landscape in this neighborhood.
Mr. Ross referenced the LUZO Section 8-Definitions, Conditional Use on page 8-3, regarding compliance with the provisions of the ordinance and avoidance of harm to public or private interests. Mr. Ross said that as an abutter, Mr. Rales has a private interest in not having a sea wall built between the two properties. Mr. Rales also has other private interests in the scenic view as addressed in Section 5.8.
Mr. Smith, property manager for Mr. Blair, maintained that Mr. Blair has a right to have privacy on his property. He said that Mr. Blair has gone out of his way to try to be accommodating in this situation. He could have built the wall at any time without approval from the Board. As soon as there was opposition from Mr. Rales, Mr. Blair stopped the work and tried to address his concerns.
Chairman Brawley asked the parties if they felt that they were close enough to resolving their differences if the hearing was delayed. Mr. Mohr said that no, they are not close to a resolution. Mr. Ross disagreed. He thought that a few more hours of negotiation would resolve the differences. Mr. Mohr said this is the same dialog that they have been having for six weeks; Mr. Blair is not willing to concede on the issues in the way that Mr. Rales is seeking.
Mr. Johnston, representing Mr. Rales, said that the parties get closer to finding a common ground each time they have discussions. The result is portrayed by the continued submissions which show the progress of the project towards common interests, and will ultimately result in a better project.
Chairman Brawley thought that flexibility could be put in the approval to encourage cooperation between the parties so that they could continue to work on their solution after the hearing. Mr. Tracy said that the solution to their differences was up to them and not up to the Board; the Board is to hear the application that is before them.
A MOTION TO APPROVE THE APPLICATION WAS MADE BY MR. Tracy; 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 # 002-2012.
Mr. Ross read to the Board Section 6.A.1 compatibility regarding the visual impact.
Mr. Tracy asked if Mr. Rales was aware that the abutter could put up a 5.5’ fence along the entire property line without the approval of the Board. Mr. Ross said he would argue that right and that isn’t the issue before the Board.
Pertaining to Section 6A.1, Mr. Coplon said he had not prepared a visual assessment. However, he said it was pretty clear that the wall ranged from 18” - 4’ and that it is a physical barrier affecting the visual impact. CEO Keene asked the Board if they agreed that the wall is part of the application when the application is for fill. The retaining wall is not being used to stabilize fill for erosion control reasons. Mr. Ross said it was included in the application. CEO Keene reasoned that even though information about the wall was in the application, the application is specifically for fill and grading.
Mr. Ross argued that it is part of the application. Mr. Johnston added that if the fill was not there then the wall would not be there. CEO Keene said the Board should decide if the wall is to be considered as part of the application.
Chairman Brawley said that CEO Keene’s comment needs to be addressed. Mr. Clunan understands the fill to be a wrap-around and comprises what is proposed to be in the front of the house including the wall on top of it and the berm. Mr. Mohr said the wall is being used to retain the fill in order to preserve the two specimen trees and further down the line it will retain grade. He said the wall could be dealt with independently from the fill with the CEO.
Mr. Tracy asked CEO Keene if that was true, could a four foot wall be put up without Planning Board approval. CEO Keene said that a permit is not needed for a fence or wall less than 4’, and 6’ and under she can issue the permit. The wall would only come before the Board if it was over 6’. The wall is not over 4’ anywhere along its length.
Mr. Johnston said that the conditions and requirements for retaining walls in the Shoreland zone, as well as other sections of the ordinance, pertains to this wall. CEO Keene stated that she had an email today, from the DEP, confirming her interpretation and that 6C.8.7 does not apply beyond 75’. Mr. Johnston does not interpret 6C.8.7 as standing alone from 6C.8.
CEO Keene and the Board disagreed with Mr. Johnston’s interpretation. Chairman Brawley said it is irrelevant; that 6C.8.7 Retaining walls states “…structure setback requirement, except for low retaining walls...” Mr. Johnston said there two sets of structure setbacks that apply: the property line setback and the high water setback in 6C.8. CEO Keene asked Mr. Mohr if the wall was less than 24” within the 75’, he confirmed that it would be less than 24”. Mr. Johnston said that the 24” does not only apply to the 75’, but to the entire Shoreland zone; clearly there are sections of the wall that are 48” high within 250’ of the shoreline. Mr. Mohr also pointed out that Mr. Johnston is not a Code Enforcement Officer and
that CEO Keene is in charge of the interpretation of the building code and has confirmed her interpretation with the DEP. He asked that the Board rely on the CEO’s interpretation and continue with the application.
Chairman Brawley asked Mr. Mohr if in fact this retaining wall was for erosion control. Mr. Mohr responded that the wall is aiding in erosion control and also that one of the functions of the wall is to aid in the maintenance of the grade and the protection of the two trees. Mr. Clunan asked other Board members if they thought it had been established that the wall is necessary for erosion control. Chairman Brawley said it was to her satisfaction. Mr. Tracy asked for CEO Keene’s opinion. CEO Keene said she was told by Mr. Mohr that the wall was not necessary for erosion control; that it was for the preservation of the two trees.
Mr. Johnston said that setbacks need to be respected according to the ordinance and that at 48” high, the wall is clearly too high to meet the structure requirements within the setback (since the wall is a structure, it does not meet the exemptions for height). Mr. Mohr clarified for the Board that the western plane of the wall, the part of the wall that is in front of the Rales’ property, never exceeds 30” in height. The part that is visible does not have 10’ of fill, nor is it 4’ in height.
Mr. Clunan asked Mr. Johnston to clarify if the issue is that the berm would be an offensive obstruction to the Rales’ view that it would interfere with the characteristic view of the neighborhood. Mr. Johnston said his point is that the wall must meet the setback requirements under 6A, 6B & 6C. Chairman Brawley said that she agrees with CEO Keene and the State’s interpretation of the ordinance. Mr. Coplon asked if the DEP realized what they were addressing. CEO Keene said she had cut and pasted the wording of the ordinance for them to review, they understood what was meant by structure and setback.
Mr. Ross brought up Section 6B.8 for the record which could be interpreted as a “need no permit provision” under certain circumstances for fences and walls. He said this section talks about one thing only - do you need a permit or approval from the Planning Board. Nowhere does this section talk about what is or is not a structure and what is allowed to be within a 25’ setback. He said that the Board’s interpretation of the ordinance is that a wall or fence is not a structure. He referred the Board to the definition of Structure on pg. 8-13 of the ordinance. Nowhere in this definition is a fence or wall mentioned as not being included as a structure in the list given within the definition. Chairman Brawley referenced the definition of Setback on pg. 8-12 where it
specifically states for setback purposes that fences shall not be considered structures. Mr. Ross said a wall is a solid structure, which is permanent and nowhere in Section 6B.8 does it say that a wall is permitted within the 25’ setback requirement. Mr. Tracy asked if he would hold the same interpretation for fences. Mr. Ross said absolutely, in reference to a solid fence. Mr. Tracy noted that if the fence has more than 50% transparency is not considered a fence. He also said that Section 6B.8 included walls. Mr. Johnston said that Section 6B.8 states that under certain circumstances a permit may not be required, but it didn’t say that setback requirements are not applicable. Mr. Tracy said Mr. Ross and Mr. Johnston’s interpretation is contrary to the way the Board has interpreted the ordinance ever since he’s been on the Board, which is more than 18 years. Mr. Clunan agreed and said that they would address the
issue with the ordinance in the future.
Mr. Smith talked about a wall that had existed on site in the past and that parts of it can still be seen. He showed Mr. Tracy where on the map the previous stone wall had existed. Mr. Smith also said that the only usable space between the properties has historically been the 4-5’ between the properties. He said nothing of the usable space will be changed.
The Board began their review of the Section 6 standards (refer to the recording dated 2-27-12 for a complete record of discussions). After completing Section 6A.1 the Board determined that they would not finish the review at this meeting and discussed continuing the hearing on March 12, 2012.
A MOTION TO CONTINUE THE HEARING FOR CUA #002-2012 AT THE MARCH 12, 2012 MEETING BY MR. TRACY; SECONDED BY MR. CLUNAN
Discussion
Mr. Mohr stated for the record that he thought it was unfair to Mr. Blair to further delay the hearing. Mr. Clunan and Mr. Tracy both noted that it is unfair, but that the hearing would be continued at any rate because the Board would not complete the proceeding this evening. The March 12, 2012 meeting will be dedicated to this hearing.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (5-0).
B. Conditional Use Approval Application #001-2012
NAME(S): Terrance L. & Leslie L. Haynes
LOCATION: 50 Beech Hill Cross Road, Mount Desert
TAX MAP: 9 LOT: 96 ZONE(S): Rural Woodland 2
PURPOSE: Section 3.4 - Auto Repair Business
SITE INSPECTION: 3:00PM
Mr. Tracy reported a conflict of interest as an abutter and removed himself as a voting member for this hearing. Lili Andrews, Ellen Brawley, James Clunan, and Patti Reilly are the voting members for this hearing. It was confirmed the notice was published February 15, 2012 in the Bar Harbor Times and February 16, 2012 in the Mount Desert Islander.
A motion to recuse Mr.Tracy was made by Ms. Reilly; seconded by Ms. Andrews.
A VOTE WAS CALLED AND THE MOTION TO RECUSE MR. TRACY CARRIED UNANIMOUSLY. (4-0)
A MOTION TO find the application complete WAS MADE BY MR. clunan; SECONDED BY MS. reilly.
The Board members agreed that the application was complete.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (4-0; Mr. Tracy recused).
Site Inspection was attended by Ellen Brawley and Jim Clunan. As reported by Mr. Clunan, the road is fairly level and the buildings on the property are fairly level as well. The setback requirements are more than met. The land slopes down behind the buildings in a southerly direction.
Mr. Haynes would like to change oil, do break jobs, etc., and inspect vehicles for MV, which he is licensed for.
CEO Keene reported that abutter Sherwood Carr called and professed his support for this application. Mr. Clunan also reported another abutter, Ellen Gilmore, was at the site inspection and also declared her support of the application. Mr. Tracy added his support and asked how many cars would be parked on site at any given time. Mr. Haynes reported only one or two cars would be parked at a time on the property while being worked on. Leslie Haynes added that the cars would only be there when being worked on and while waiting to be picked up by the owners. The cars would be in the garage while the work is being done.
There were no other comments from the public. CEO Keene confirmed there had been no correspondence from the public.
A MOTION TO APPROVE THE APPLICATION WAS MADE BY MR. CLUNAN; SECONDED BY MS. REILLY.
A MOTION TO USE THE SHORT VERSION OF THE FORM WAS MADE BY MR. CLUNAN; SECONDED BY MS. REILLY.
A VOTE WAS CALLED AND THE MOTION TO USE THE SHORT FORM CARRIED UNANIMOUSLY. (4-0; Mr. Tracy recused).
Ms. Reilly asked about spilled oil and how Mr. Haynes proposed to clean it up. Mr. Haynes said he would use kitty litter to absorb any spills. Ms. Andrews asked how he would dispose of the kitty litter. Mr. Haynes stated that he dries it out and reuses it. Mr. Clunan noted that the site visit indicated that Mr. Haynes is very neat and orderly.
The Standards of Section 6 of the LUZO, as amended May 3, 2011 were reviewed as follows: See attached checklist for CUA # 001-2012.
A MOTION TO AMEND THE ORIGINAL MOTION TO APPROVE THE APPLICATION TO INCLUDE A CONDITION FOR THE PROPER DISPOSAL OF TOXIC WASTES WAS MADE BY Ms. Reilly; seconded by ms. Andrews.
A VOTE WAS CALLED AND THE MOTION TO AMEND THE ORIGINAL MOTION CARRIED UNANIMOUSLY (4-0; Mr. Tracy recused).
A VOTE WAS CALLED AND THE MOTION TO APPROVE THE APPLICATION WITH THE CONDITION OF PROPERLY DISPOSING OF TOXIC WASTE CARRIED UNANIMOUSLY. (4-0; Mr. Tracy recused).
C. Conditional Use Approval Application #005-2012
NAME(S): Lot 5 BN LLC
AGENT(S): Greg Johnston of G.F. Johnston & Associates
LOCATION: 20 Narrows Road, Mount Desert
TAX MAP: 11 LOT: 34 ZONE(S): Shoreland Residential 3
PURPOSE: Section(s) 3.4 Excavation or Filling of greater than 50 cubic yds. 6B.7 Excavation (other than gravel pits) or filling.
SITE INSPECTION: 2:00PM
No conflict of interest was reported. The Board welcomed Mr. Tracy back for this hearing. 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 February 15, 2012 in the Bar Harbor Times and February 16, 2012 in the Mount Desert Islander.
A MOTION TO find the application complete WAS MADE BY ms. REILLY; SECONDED BY MR. tracy.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (4-0, Mr. Clunan absent).
The site Inspection was attended by Lili Andrews, Ellen Brawley, and Jim Clunan. As reported by Ms. Andrews, Board members, Mr. Johnson, agent for Lot 5 BN LLC, and Mr. Washtal, property manager, met shortly after 9:00 am. They walked down to the beach and viewed the work that was done earlier and then looked at the site subject to this application. They noted at that time that only 250’ had not been stabilized by two earlier projects in 2011 and 2005. Only the areas needing stabilization are involved in this project. There is one area along the shoreline that will not be touched by this project. All work will be done by barge, with materials being brought to the site by barge. There will be no land access to the work site. The height of the proposed work varies
from 4’-10’. The rip-rap will be done with natural stone. Mr. Johnston explained to the Board the history of the property and the intent of this project. The name of the lot is derived from Bartlet’s Narrow (BN) and the 5 refers to the lot number (Lot 5 BN).
Note that the visit was scheduled for 2:00pm, but moved to 9:00am so that Board members could see the proposed site. Due to high tide at 2:00pm, there was very limited ability to see the desired rip-rap site; however, Mr. Johnston was available at the site at 2:00pm to give a less effective site walk to any public who showed up for the advertised site visit, and for Board members who could not attend the 9:00am visit. Mr. Johnston met Board members at the neighboring lot, lot 33, as it has stairs going down to the beach.
Ms. Andrews asked about the property that was eroded at the end near the 2011 project area and what it was caused by. Mr. Johnston explained that the water table in that area “floats” the top layer of the land. There is no cohesiveness with clay to bind the top layer to the sub-layer; it is made up of sandy loam, which is easily eroded.
There were no other comments from the public. CEO Keene confirmed there had been no correspondence from the public.
A MOTION TO APPROVE WAS MADE BY MR. Clunan; SECONDED BY MR. Tracy.
A MOTION TO USE THE SHORT VERSION OF THE FORM WAS MADE BY MR. CLUNAN; SECONDED BY Mr. tracy.
A VOTE WAS CALLED AND THE MOTION TO USE THE SHORT FORM CARRIED UNANIMOUSLY. (5-0)
The Standards of Section 6 of the LUZO, as amended May 3, 2011 were reviewed as follows: See attached checklist for CUA # 005-2012.
a Motion to amend the EARLIER motion to approve to include A CONDITION WHEREBY all required FEDERAL AND STATE permits WOULD BE RECEIVED prior to THE CEO issuing ANY permits FOR THIS PROJECT was made by mr. Clunan; seconded by ms. Reilly.
A VOTE WAS CALLED AND THE MOTION TO AMEND THE ORIGINAL MOTION CARRIED UNANIMOUSLY (5-0).
A VOTE WAS CALLED AND THE MOTION TO APPROVE THE APPLICATION WITH THE CONDITION THAT all required FEDERAL AND STATE permits WOULD BE RECEIVED prior to THE CEO issuing ANY permits FOR THIS PROJECT CARRIED UNANIMOUSLY (5-0).
IV. Other Business
Bob Ho
The passing of Board member Bob Ho was noted with regret. Chairman Brawley stated that he had been a valuable member of the Board.
Sam Shaw
Discussion regarding Sam Shaw’s approved application #027-2011 ensued. He is amending his original proposal from food service to retail. Mr. Shaw would like the Board’s approval to move ahead with the new plan without submitting a new application.
CEO Keene read the attached letter dated February 8, 2012 into the record.
Board members discussed the request and thought that the application should come before them again since the original application was specifically for food service. Mr. Tracy explicitly said that this new application needs to have a public hearing since it will directly affect and/or compete with neighboring businesses. There is a danger to open-ended applications like this. In fairness, abutters should be notified. Other Board members concurred and CEO Keene will notify Mr. Shaw that he must submit a new application.
Cell Tower Moratorium
Mr. Clunan questioned the cell tower issue and the moratorium proposed by Ms. Williams. Mr. Clunan and Mr. Tracy were absent at the meeting when the Board voted to support the moratorium. They indicated that they would have voted in opposition. Mr. Clunan said it is in the interest of the Board to find out what the Park is doing with the cell tower plan for the Island, and to find out how long are they going to take to implement the plan. Mr. Tracy said that it could take years, especially if they have to get Washington’s approval, which he suspects they will. CEO Keene informed the Board that a moratorium could last up to six months with a one-time six month extension. She is checking with the Town Attorney, James Collier, to see if the Town can call a moratorium again since
they had already done so in the past. Mr. Clunan volunteered to call Park representatives to inquire about their plan and the time-frame they expect for implementation. Mr. Tracy added that the processing of the moratorium should be delayed until somebody talks to the Park Service and gets the specifics of the plan. Ms. Reilly said that she had been contacted by Mr. Kelly of Acadia National Park regarding the solicitation of the Island towns to work together to come up with a common plan for cell towers on the Island.
V. A MOTION TO ADJOURN WAS MADE BY Mr. Tracy; SECONDED BY Ms. reilly.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (5-0)
Meeting adjourned at 9:30 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, March 12, 2012 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
ORIGINAL SIGNATURE ON FILE
Patti Reilly, Secretary
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