Town of Mount Desert Planning Board
Planning Board Meeting Minutes
Town Office Meeting Room
6:00 pm, August 27, 2012
Public Present
Valerie Chiasson; Attorney representing Fresh Water Stone and Brickwork, Barry Hobbins, Judith Aylen, Peter Aylen, Laurie C. Shencavitz, Gerald Shencavitz, Daniel Pileggi; Attorney representing Laurie and Gerald Shencavitz, Paul MacQuinn; owner of Harold MacQuinn Inc., John Hamer; Attorney representing Rudman Winchell, Attorneys at Law and Agent representing the applicants, Ben Duhaime; owner of Fresh Water Stone and Brickwork, Jeff Gammelin, C. Keith Martin, Don E. Coates, Jan Coates, Anne S. Funderburk, Carol Martin, Jean Travers, Pamela Bowie, W. Keith Bowie, Douglas M. Miller, Diane Miller, Deborah Reed, Kim Heist, Nancy Colter, Virginia Heffner, C. H. Breedlove, M. Christine Breedlove, Rob Benson, Cristy Benson, Mimi Mooers, Marianne Buchala, Sharon Musetti, Rick Mooers, Dave Ashmore, Doug Hopkins
Board Members Present
Chairman Ellen Brawley, Sandy Andrews, Bill Hanley, James Clunan, and Joseph Tracy
Also present were CEO Kimberly Keene, James W.J. Collier Esq. – Attorney for the Board, and Recording Secretary Heidi Smallidge.
I. Call to Order
The meeting was called to order at 6:00 p.m. by Chairman Ellen Brawley. Planning Board members present were named.
II. Approval of Minutes
June 25, 2012: Chairman Brawley verified that voting members for the June 25, 2012 Minutes would be Mr. Clunan, Mr. Tracy, Mr. Hanley Mr. Andrews, Ms. Andrews who had voted via email earlier, and herself. MR. ANDREWS MOVED, WITH MR. CLUNAN SECONDING, TO APPROVE THE MINUTES AS SUBMITTED. MOTION APPROVED 6-0. Ms. Reed inquired about the transcript of a portion of the Minutes she had provided and had requested to be added to the Minutes. Chairman Brawley stated that the Town attorneys had advised them that the notes Ms. Reed had taken could be submitted to the Zoning Board of Appeals, but could not be incorporated as part of the meeting Minutes.
July 9, 2012: Chairman Brawley verified that voting members for the July 9, 2012 Minutes would be Mr. Clunan, Ms. Andrews who had voted via email earlier, and herself. MR. CLUNAN MOVED, WITH CHAIRMAN BRAWLEY SECONDING, TO APPROVE THE MINUTES AS SUBMITTED. MOTION APPROVED 3-0.
July 23, 2012: Chairman Brawley verified that voting members for the July 23, 2012 Minutes would be Mr. Tracy, Mr. Hanley, Ms. Andrews who had voted via email earlier, and herself. MR. TRACY MOVED, WITH MR. HANLEY SECONDING, TO APPROVE THE MINUTES AS SUBMITTED. MOTION APPROVED 4-0.
III. New Business
OWNER(S): Harold MacQuinn, Inc.
APPLICANT(S): Fresh Water Stone & Brickwork, Inc.
AGENT(S): Edmond J. Bearor, Rudman Winchell Counselors at Law
LOCATION: Off Crane Road, Hall Quarry
TAX MAP: 007 Lot: 075 Zone(s): Residential 2
PURPOSE: To review a proposed Reclamation Plan for Mineral Extraction as required under Section 6B.12.1
SITE INSPECTION: 3:30 PM
Chairman Brawley recused herself from the discussion, as she had at the July 23, 2012 meeting addressing this issue. MR. CLUNAN MOVED, WITH MR. ANDREWS SECONDING, TO APPROVE THE RECUSAL. MOTION APPROVED 4-0.
Mr. Clunan verified the remaining four members would review the plan. Mr. Andrews agreed to act as secretary.
Mr. Andrews inquired why the Planning Board was only considering section 6B.12.3 and not also subsection 4. Mr. Clunan felt the Board could review the plan and decide whether to include subsection 4. Mr. Clunan read subsection 4:
“In keeping with the purposes of this Ordinance, the Planning Board may impose such conditions as are necessary to minimize the adverse impacts associated with mineral extraction operations on surrounding uses and resources.”
Mr. Andrews felt they would need to see the application in order to properly review the plan. He noted that if the applicants weren’t expecting to address this section of the ordinance, perhaps they didn’t include information to be addressed. Mr. Clunan felt the Board should address what it could and defer that which required more information.
Mr. Tracy noted that subsection 4 did not seem to follow 3, and did not share the same indentations as 3. It possibly could be a new point, outside of the section as stated.
Mr. Collier reminded the Board that the procedure set out in the Planning Board reorganization was that the applicant speaks first, those in opposition speak next, followed by any others and questions. Following that, a consideration by the Board can be made. Mr. Collier felt the Board was putting the cart before the horse. Mr. Collier suggested the applicant should speak to the reclamation plan submitted.
Mr. Andrews noted that at some point the Board has to ask themselves if the application is complete.
Mr. Collier advised the Board to use their regular procedures and apply them to this application, given that this is a type of operation they’ve never reviewed before.
Mr. Clunan noted that even if the plan submitted were found incomplete, the Board could proceed with Section 6B.12.3 to expedite the process.
Mr. Andrews asked that if the Board accepted the plan, would an acceptance preclude additional information the Board required.
Mr. Collier felt that the Board could not impose conditions on something the CEO hasn’t approved. This is the review of a reclamation plan and not an application. He noted that the reclamation plan is submitted and approved by the Planning Board before applying to the CEO for a permit. He felt it was safe to assume the applicant intends to do both.
Mr. Andrews noted that Section 4 specifically states that the Planning Board was to review all potential impacts and impose conditions as necessary.
Mr. Collier asked what the Board would impose conditions on.
Mr. Clunan suggested the Board could advise the CEO. Mr. Collier felt the LUZO did not state the Board could advise the CEO. He felt Subsection 4 could be a mistake and asked what the Board would impose conditions on.
Mr. Andrews felt the Board could impose conditions on the mineral extraction operation and that such conditions could exist as either a stand-alone document or an addition to any permit issued by the CEO. Mr. Collier felt that the CEO issues the permit and only she can impose conditions. The Planning Board has no jurisdiction to impose conditions except in connection to the reclamation plan itself.
Mr. Andrews wondered if the chart where Mineral Extraction is noted as a “P” might be in error. Mr. Collier noted it could be in error; however the Board has to use the ordinance as it is.
Mr. Collier read the Scope of Authority from the organization document of the Planning Board:
“The Board shall perform such duties and exercise such powers as are provided by the Town of Mount Desert Land Use Zoning Ordinance (LUZO) and the Subdivision Ordinance and the laws of the State of Maine. It may also make recommendations to the Board of Selectmen and the Comprehensive Plan Committee as may be appropriate.”
Mr. Andrews pointed out that section 6B.12.4 specifically gave the Planning Board the power to “impose such conditions as are necessary to minimize the adverse impacts associated with mineral extraction operations on surrounding uses and resources”.
MR. ANDREWS MOVED THAT THE BOARD INTERPRET SECTION 6B.12.4 SUCH THAT THE BOARD HAS THE AUTHORITY TO REVIEW THE APPLICATION AGAINST CRITERIA OF SECTIONS 6A.1 THROUGH 10 AND SPECIFIC PERFORMANCE STANDARDS WHICH APPLY TO THEIR APPLICATION INCLUSIVE OF POINTS 6B.12.1 THROUGH 4 AND IMPOSE SUCH CONDITIONS AS RESULT FROM THAT REVIEW. MR. CLUNAN SECONDED THE MOTION.
Mr. Hanley didn’t think subsection 4 was relative to just the reclamation plan. He felt an application should be submitted as well as the reclamation plan. At this point the Board only has the indefinite back end of the operations intended.
Mr. Clunan was satisfied that the CEO would review the entire ordinance application and will consider Section 6 with regard to the proposed activity.
Mr. Andrews noted that the CEO review process did not include an open process in which the public could participate, something a Planning Board hearing would permit and which is important when an application may have a wide impact on the general public. The Planning Board does. He reminded the Board that his motion only notes the Planning Board may impose conditions, but that did not necessarily mean they would.
MOTION APPROVED 3-1 (Mr. Tracy against).
Mr. Hamer requested a five minute recess, which then ensued.
Mr. Clunan called the meeting back to order. Mr. Collier called a Point of Order. Now that the Planning Board has voted he requested they now move to reconsider the vote in order to hear from the attorneys and the public.
MR. ANDREWS MOVED RECONSIDERATION OF THE MOTION. MR. CLUNAN SECONDED. MOTION APPROVED 4-0.
Mr. Hamer, representing Rudman Winchell Counselors at Law, stated the Planning Board was a creature of statute needing a basis of legal authority to act. In the LUZO charts Mineral Extraction is noted as a P2 designation, meaning it is a permitted use, requiring a permit from the Code Enforcement Officer if more than 100 cubic yards of surface area, in total, per year, is disturbed. Under these rules the reclamation plan has been submitted for review and is worded to address the requirements of section 6B.12.3. Mr. Hamer felt subsection 4 is not indented or in line with the reclamation references.
Mr. Collier asked Mr. Hamer what he felt subsection 4 was in reference to. Mr. Hamer felt subsection 4 was referring to a plan requiring a conditional use permit. He added that under section 6A the Planning Board has the authority to impose conditions. This second reference would be a redundancy.
Mr. Pileggi represents Gerald and Laurie Shencavitz, who live in Hall Quarry, approximately 300 feet from the site, but not abutters. He noted the operation was a highly technical one and it was not possible for the Planning Board to review reclamation until more detail was available on the reclamation. He did agree that subsection 4 was a stand-alone statement, confined to conditional use.
Mr. Peter Aylen, an abutter to the site, inquired about when the public was to be allowed input. He pointed out that if the application goes directly to the CEO then the permit can be approved with no public input.
Ms. Christine Breedlove, a Hall Quarry resident but not an abutter, noted that the plans were to excavate more than 150 cubic yards per year from the site, and so it would require a conditional use permit. Ms. Keene corrected Ms. Breedlove, stating that it would only need a permit if the site was in a shoreland district area.
Ms. Valerie Chiasson, representing Fresh Water Stone & Brickwork, noted that the right to impose conditional use is in the LUZO; to be done by the CEO under section 7, 6B1 and 6B3.
Mr. Tracy asked whether the meeting shouldn’t be rescheduled to allow for better preparation for all parties. Mr. Andrews suggested the Board could simply find the plan incomplete. Mr. Hamer requested that the Board continue their review of the reclamation plan and review Section 4 afterwards.
Mr. Pileggi stated that the application filed has no details with regard to use. It was not fair to residents to argue in a vacuum. He noted that information on things like handling water, distance to abutters, vegetation, size and depth of holes was all absent. He felt the Board couldn’t have a vote or even a consideration of the plan, nor did he see how opponents could effectively argue the plan.
Mr. Hanley noted that a conditional use application shows pre- and post-development. At this point it’s unknown what post-development will be. Mr. Andrews concurred and mentioned it would be nice to have a list of things they might do on the site.
Mr. Clunan mentioned that some proposed reclamation may go into effect immediately, some later, and some may never happen at all. Mr. Andrews requested information on what the site will be like after it is reclaimed.
Mr. Pileggi felt that Summit Engineering has the wherewithal to show what may happen at the site. He felt that compaction and a 2 ½: 1 reseeded slope is not enough information.
Mr. Hamer countered that Section 6B.12.3 does not talk about existing conditions; it talks about plan review and is limited to what’s there. He can’t speak to the final elevations because he doesn’t know what they’ll be.
Mr. Hanley noted that a baseline for the site will be impossible to create 30 years from now. The site needs to be documented now so that in 30 years the Town and residents have recourse if they’re unsatisfied with the outcome. Mr. Clunan suggested the applicant could provide a detailed plan of the site as it is now.
Mr. Hamer stated such a plan is not required.
Mr. Tracy felt the Board needed to work with the rules they have.
Mr. Andrews felt the Board should be considering the reclamation plan with an overall review of the application. The reclamation plan language is general, but the LUZO says the plan will be in detail. He is unsure he has the means to make a determination at this time. Mr. Andrews suggested the Planning Board or CEO should require expert testimony; none of the Board has training to review a reclamation plan.
Mr. Tracy noted this was something the CEO would have to deal with in her review.
Mr. Andrews stated the Board was required to review with the goal of approving or not, and they have the right to get expert testimony while reviewing. He felt he did not have the knowledge to approve without expert testimony.
Mr. Collier felt that perhaps the Board should vote first on Mr. Pileggi’s points; whether the applicant needs to submit more information.
Mr. Clunan noted that looking at the ten bullet points in the reclamation plan some do address standards under the LUZO. He wondered if they couldn’t at least review what they had and possibly get some approved to find out where they stand.
Ms. Chiasson inquired about what types of detail were needed. Mr. Tracy wondered if the State had standards on quarries. Mr. Clunan cited MRSA 490-W – 490-Z. Mr. Hamer noted it was not part of the ordinance. Ms. Keene stated the Town was required to abide by State, federal, and local laws.
MR. ANDREWS MOVED TO DELAY CONSIDERATION OF THE RECLAMATION PLAN UNTIL AFTER REVIEW OF MATERIALS SUFFICIENT TO DETERMINE WHETHER THE PLANNING BOARD NEEDS TO IMPOSE ANY CONDITIONS AS ARE NECESSARY TO MINIMIZE ANY POTENTIAL ADVERSE IMPACT ASSOCIATED WITH THE PROPOSED MINERAL EXTRACTION OPERATION. MR. CLUNAN SECONDS.
Mr. Hamer stated that in light of the motion he would recommend that the Board deny the plan because there is not enough information submitted. He can then proceed to the Zoning Board of Appeals.
Mr. Clunan believed the Board could address the 10 bullet points of the reclamation plan. The Board should do what it could with what it had and address the reclamation plan as it stands.
Mr. Hamer asserted that the applicants would not submit more information and they would appreciate guidance from the Board. If the Board denies the plan for lack of information, the applicants will appeal.
Mr. Andrews noted the Board needed more information so they can decide if conditions need to be imposed. He asked if the applicant would submit additional information to that effect.
Ms. Chiasson noted that more information was outside the requirements of section 6B.12.3. Mr. Hamer added that they would prefer the Zoning Board of Appeals to determine if section 4 was necessary. He reiterated the applicant would refuse to supply more information, and preferred the Zoning Board of Appeals to determine whether more is needed.
Mr. Clunan asked if Mr. Andrews would consider withdrawing the motion.
Mr. Collier noted the motion is moot because the applicant will not submit.
MR. TRACY, WITH MR CLUNAN SECONDING, MADE A MOTION TO CALL THE VOTE. MOTION APPROVED 4-0.
MOTION TO DELAY CONSIDERATION MADE BY MR. ANDREWS FAILS 1-3 (Tracy, Clunan, Hanley voting against).
MR. ANDREWS MOVED WITH MR. CLUNAN SECONDING, TO REPEAT THE MOTION MADE PREVIOUSLY, I.E. THAT THE BOARD INTERPRET SECTION 6B.12.4 SUCH THAT THE BOARD HAS THE AUTHORITY TO REVIEW THE APPLICATION AGAINST CRITERIA OF SECTIONS 6A.1 THROUGH 10 AND SPECIFIC PERFORMANCE STANDARDS WHICH APPLY TO THEIR APPLICATION INCLUSIVE OF POINTS 6B.12.1 THROUGH 4 AND IMPOSE SUCH CONDITIONS AS RESULT FROM THAT REVIEW. MR. CLUNAN SECONDED THE MOTION. MOTION WAS APPROVED 3-1 (MR. TRACY AGAINST).
A five minute recess ensued.
Mr. Clunan called the meeting to order. He reviewed the bullet points that directly address the points in the LUZO. He requested that bullet point 5 have the words included to “remove to approved location or bury onsite” be added to mirror the LUZO requirements. Mr. Hamer acquiesced.
Mr. Collier called Point of Order. He reminded the Board the procedure is clear; applicant speaks to how the plan meets the standards; anyone opposing can argue that it doesn’t meet the standards, followed by public input and a decision.
Mr. Hamer stated that the plan has been submitted and stamped by an engineer. It complies with Section 6B.12.3. He noted they would include language to cover construction debris, stumps or stockpiled materials not used for reclamation to be “removed to an approved location or buried onsite”. He noted if permits were needed for fill or removal of material they’d get them, but they had no idea how much material that may be at this point. He noted the second point was the graded slope. The plan provides for it in bullet point 6. At this point Mr. Hamer did not know what the final grades would be or the depth, but he assured the Board the site would have the slopes required. For the third point of the LUZO, Mr. Hamer noted the area has been used prior and there may not be enough soil. Reseeding and erosion control will be included in their plan. Mr. Hamer added one final comment. This was a joint application between Freshwater Stone and Brickwork and Harold MacQuinn Inc. In
the long-term the owner will be responsible for the reclamation if the tenant is no longer there.
Mr. Pileggi referred to his submitted letter to the Board and reiterated that the Board does not have any information on existing site conditions. There is no plan on what exactly is going to be reclaimed - a slope can be made at the bottom of a hole – Mr. Pileggi felt reclamation meant bringing the site back to its original state. There is no detail on what’s currently there and how to bring it back to current conditions. There has been no discussion regarding groundwater or the existing slope. There has also been no discussion of financial capacity. Perhaps a performance bond or insurance policy should be in place to cover reclamation. Mr. Pileggi would like to see an engineering plan with a baseline for the site.
Mr. Collier asked where in the LUZO a performance bond was required. Mr. Pileggi noted that the Board can make it a requirement. Mr. Collier inquired where in the LUZO Mr. Pileggi felt it gave the Board the authority to ask for more detail. Mr. Pileggi felt in 6B.12.1 it mentioned looking at a detailed plan to reclaim.
Mr. Andrews noted that “reclamation” was not defined in the LUZO. The Board consulted the dictionary. Mr. Hamer felt the definition of “reclamation” was not relevant. It was clear it did not mean to restore to exactly how it was. Regarding the other information the Board discussed it was not required. The standards were set forth clearly. The final look of the site and topography was not known.
Mr. Collier asked about vegetation. He noted the charts included in the plan did not seem to indicate any bushes or trees. Mr. Hamer stated that the vegetation included is what was specified in the LUZO. Mr. Collier asked about whether the final plan was separate. Mr. Hamer stated they had no final plan. The applicants can only provide the procedure for once quarrying stops. They can’t create the plan because the state of the site will not be known. Providing a plan exceeds what’s required in the ordinance.
Mr. Collier reminded Mr. Hamer that 6B.12 states that “Such plan shall describe in detail procedures to be undertaken to fulfill the requirements of Section 6B.12.3, below”. Mr. Hamer stated they had provided as much detail as they felt was necessary. The Board should inform them of anything missing. Mr. Collier asked about Mr. Pileggi’s letter, but Mr. Hamer felt that everything Mr. Pileggi referenced was outside the scope of the plan. Mr. Collier asked what if the Planning Board requested more information. Mr. Hamer felt more information would be outside the scope of the reclamation plan. Mr. Clunan asked whether the applicant would be willing to provide a baseline. Mr. Hamer felt it unnecessary. The site would never be restored to pre-existing conditions, and so a baseline
doesn’t matter.
Mr. Pileggi notes the reclamation plan simply notes the applicant will do these things without any further information on how or what they’ll do. The LUZO asks for details and the plan only states that they’ll follow the LUZO. He felt this plan would not be considered adequate anywhere. A plan is supposed to impose a structure on the operation and the Planning Board is there to impose standards for the plan.
Mr. Collier asked how things would be done under this reclamation plan. Mr. Hamer stated the details are unknowable at this time. Mr. Collier used stumps as an example and noted that they could include information such as the stumps would be removed through chipping, or removed from the site by truck, or buried or a number of other methods. Mr. Hamer insisted the applicants could not know how that would happen. If the Town wanted more, the requirements should be in the LUZO.
Mr. Clunan noted it would be of interest to know how the operation will be as it proceeds. How long the operation will run is not known, however perhaps some reclamation could be done as the operation proceeds. Mr. Hamer stated such information was not required by the ordinance.
Ms. Chiasson noted that the section for mineral extraction was less than a page, yet the cell tower ordinance was a number of pages. The new cell tower ordinance is evidence that the Town can provide more information and detail in their ordinance when they feel it’s called for.
Mr. Andrews inquired about reclamation plans that include filling in a potentially deep hole without danger. Mr. Hamer noted there may not be any deep holes. Mr. Duhaime, owner of Fresh Water Stone and Brickwork, noted they need to keep their digsites open for trucks to drive in and out of, making pits very unlikely.
Mr. Aylen voiced concern over stormwater runoff. He noted the runoff is already affecting lands around his house. He noted that he felt the site was an excavation site which is prohibited in the LUZO. Mr. Collier noted that the question of quarrying vs. mineral extraction had been decided in a previous meeting and requested Mr. Aylen speak only to the reclamation plan. Mr. Aylen asked when the public would get their chance for input.
Mr. Clunan stated the Board was addressing the reclamation plan, and then would deal with subsection 4. At that point there would be a place for public input.
C.H. Breedlove, a Hall Quarry resident but not an abutter voiced concern over the financial safety. If both companies go bankrupt is the town then responsible for reclamation. Mr. Collier assured him the Town has no responsibility for the operation of a private business. Mr. Pileggi noted this was exactly why a more detailed plan was needed. Christine Breedlove asked how residents could be assured the operations at the site would not affect the water quality.
Mr. Clunan asked if members of the Board have specific suggestions for the applicant. Mr. Andrews wanted the applicant to produce likely scenarios of what the site will look like at the point of abandonment and reclamation. Mr. Collier asked Mr. Hamer if the applicant would bring to the Board specific requests for information. Mr. Hamer stated they would not supply bonding, but he would like to see a list of requests. Mr. Andrews reiterated it was problematic to review a reclamation plan without details. Mr. Hanley requested a pre-condition plan submitted.
Mr. Hamer stated the applicant would not be willing to provide the information requested.
Mr. Hanley stated the Board needs more information to make an informed decision on the reclamation plan and Section 4 allows them the liberty to ask.
Mr. Collier suggested that given the fact that Mr. Hamer has refused to provide the requested information, the Board can find the Reclamation Plan incomplete.
MR. ANDREWS MOVED THAT GIVEN THAT MR. HAMER HAS REPRESENTED THAT HIS CLIENT WILL NOT PROVIDE THE INFORMATION THAT THE BOARD HAS DECIDED IS NECESSARY FOR CONSIDERATION OF LUZO SECTION 6B.12.4 (SUCH AS INFORMATION TO ADDRESS THE STANDARDS IN LUZO SECTION 6A) TO UNDERTAKE THE APPROPRIATE ANALYSIS OF THE RECLAMATION PLAN AND IS REQUIRED UNDER 6B.12.1, THAT IS DETAILED PROCEDURES, THE BOARD DOES NOT APPROVE THE RECLAMATION PLAN AS SUBMITTED AS IT IS INCOMPLETE. MR. CLUNAN SECONDED. MOTION APPROVED 4-0
Mr. Hamer asked for more detail. He noted there had been a number of points discussed. Mr. Collier noted that the information required for a Conditional Use Permit Application was a minimum. Information that explains how the applicant will meet Section 6A.
Mr. Clunan asked for clarification on whether Mr. Hamer stated he would not submit more information, or he did not intend to. Mr. Hamer stated he said he would not submit more information.
Mr. Collier confirmed that he would provide a Findings of Fact and Conclusion of Law given the lengthy motion. It was noted that a continuation of the meeting to approve the Findings of Fact and Conclusion of Law would be necessary.
MR. TRACY MOVED, WITH MR. ANDREWS SECONDING, TO CONTINUE THIS MEETING TO SEPTEMBER 10TH 6PM AT THE TOWN OFFICE MEETING ROOM AND DIRECT COUNSEL TO DRAFT FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR REVIEW AND POSSIBLE APPROVAL BY THE PLANNING BOARD. MOTION APPROVED 4-0.
IV. Adjournment:
MR. ANDREWS MOVED, WITH MR. TRACY SECONDING, TO ADJOURN. MOTION APPROVED 4-0. THE MEETING WAS ADJOURNED AT 9:45 PM.
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