Town of Mount Desert Planning Board
Planning Board Meeting Minutes
Meeting Room, Town Hall
6:00 pm, December 10, 2012
Public Present
Lawrence Stabile, Blaine Hopkins, William C. Fernald, Thomas J. Fernald, Carroll Fernald, Sheila S. Swanson, and Bill C. Swanson
Board Members Present
Dennis Kiley, Chairman Ellen Brawley, Joseph Tracy, Lili Andrews, and James Clunan
Also present were CEO Kimberly Keene, James W. J. Collier Esq., Counsel to the Board, and Recording Secretary Heidi Smallidge.
I. Call to Order
The meeting was called to order at 6:02 p.m. by Chairman Ellen Brawley.
Proper public notification was confirmed. It was also confirmed that abutters were notified.
II. Approval of Minutes
November 13, 2012 – Ms. Andrews felt the description of the Manchester Road lots were a bit confusing. Discussion was postponed till the end of the meeting.
III. Conditional Use Approval Application(s)
Conditional Use Approval Application # 017-2012
NAME: Gordon & Rena King
APPLICANT: Daniel & Linda Lunt
LOCATION: 11 Kings Park Way, Otter Creek
TAX MAP: 033 Lot: 059-008 & 014 ZONE(S): Village Residential 2
PURPOSE: Section 3.4 – Commercial Fishing
SITE INSPECTION: 3:30 PM
Chairman Brawley reported this application had been withdrawn.
IV. Subdivision Approval Application(s)
Public Hearing (s):
Property Owner(s): A.C. Fernald & Sons, Inc.
Agent(s): ATC Realty
Property Location: 1049 Main St., Somesville
Tax Map: 010 Lot: 147 Zone(s): Village Commercial District
PURPOSE: Amendment to a 3-Lot Subdivision
Chairman Brawley reminded the Board that at the October 9, 2012 Planning Board meeting the subdivision was approved, contingent upon receiving a letter from the Fire Chief confirming that the access road met his specifications. The road did not meet the Fire Chief’s specifications. The applicant has now revised the plan to make the road meet new grade specifications. The subdivision plan the Planning Board has received now has revised specifications. Mr. Tracy inquired whether the Fire Chief’s specifications were different from that of the Planning Board. Chairman Brawley noted the Fire Chief must approve the specifications presented and he has approved the latest revision of those specifications.
In addition to the Fire Chief’s approval, Chairman Brawley noted there were additional requirements: 1 - Lot 2-1 has to be conveyed to Bangor Hydro, and 2 – the cul de sac had to be shown on the plan and physically completed. These are now reflected on the plan.
The Board must decide whether to approve the new plan as provided by the applicant.
Blaine Hopkins, representing A.C. Fernald & Sons Inc., and Global Tower Assets, LLC, presented the revisions to the Planning Board. Mr. Collier asked Mr. Hopkins to verify the date of the plans he had received. Mr. Hopkins noted the date was December 3, 2012 on the plans, and Mr. Collier had received a newer version of the plans that the Planning Board had not received. He noted the Plans Mr. Collier had were unchanged, other than a section of the property in question was enlarged for better ease of viewing. He noted the version the Planning Board has was dated November 26, 2012.
Mr. Hopkins continued his summation of the history of the project; the property is owned by A.C. Fernald and Sons Inc. Earlier in the year the parcel was approximately 33 acres. There was an existing road and nothing more. A.C. Fernald and Sons Inc. was approached by Bangor Hydro and subsequently sold to them a 4-acre parcel. Bangor Hydro began construction on a facility there. Shortly thereafter, Global Tower Partners approached A.C. Fernald and Sons Inc. and they leased a small parcel of land. This created a third lot and triggered the subdivision requirements.
On their first meeting with the Planning Board, the installation of a cul de sac was deemed a requirement. It was also required that all parcels must own to the center line of the right of way. With the final approval of the plan the lot needs to be transferred to Bangor Hydro as well as a section of right of way. Both documents are prepared and they have been sent to Bangor Hydro’s attorneys.
At the last meeting, it was found there were two sections of the road where the grade exceeded the amount allowed by the subdivision ordinance. The Planning Board has the right to waive that requirement and they did so with the caveat that the waiver would have to get the approval of the fire chief. The fire chief did not approve the waiver. The engineer, with the cooperation of the fire chief, altered the grade of the road, alleviating two areas of concern. The grades of the areas in question ranged from 15 to 20%. They have been reduced to 12% through regrading. The fire chief is now satisfied that the plans meet specifications.
In addition, Mr. Hopkins sent a letter to the CEO requesting that the conditions of approvals be prepared by Attorney Collier.
Chairman Brawley asked whether the change in the grading makes a difference in the stormwater runoff. Mr. Hopkins asserted that the stormwater would be unchanged.
Mr. Collier asked about the area where the signatures go, it notes “Date of Approval Conditions”. He wondered about the wording. Mr. Hopkins felt it was a simple error of mistakenly including the word “Conditions”.
Mr. Collier asked if Mr. Hopkins could assure the Board that the leased parcel has included somewhere in the lease a right of way to access the road. Mr. Hopkins affirmed that the right of way was included.
Mr. Collier asked that with regard to the right of way to be granted Lot 2, the actual road would be within the right of way. Mr. Hopkins confirmed the road would conform to the plan in its final form. Mr. Collier noted there was currently on the plan the road and below it the utility easement and they’re not in the same location. It was difficult to determine that the driveway was inside the right of way. Mr. Hopkins confirmed it was inside.
Mr. Hopkins noted that when the work is done an engineer and a surveyor will be onsite supervising the work.
With regard to the performance bond, Mr. Hopkins reported that he and Mr. Collier had talked and the results of their conversations had been sent to the bonding company. It was his intent to have the bond to the Town in the latter part of next week. It was noted the Town Manager had the authority to sign the bond.
Mr. Hopkins noted the deed transfer and the right of way have to be completed, mylar plans have to be prepared, and the bond prepared. Mr. Collier requested the lot 2-1 enlarged inset on his set of plans be included in the mylar set. Mr. Hopkins agreed to do so.
Chairman Brawley asked if there were questions. Mr. Clunan mentioned the site inspection on June 11 and it was noted that those in attendance were Chairman Brawley, Mr. Andrews, and Mr. Tracy. Mr. Clunan asked whether that were enough in attendance at the site inspection, given that some members have left the Board. Chairman Brawley didn’t believe there was a quorum requirement for a site inspection.
Mr. Collier noted there was an extra “.” in the Notes on Number 7.
Chairman Brawley inquired whether reference to the bond should be included in conditions of approval.
Mr. Collier inquired whether the bond was in reference to the entire subdivision or just regarding the road and why the Board wants the bond for this project.
Ms. Andrews replied that the Board required the bond given the Town’s history of problems with the construction of another road. It was agreed construction of the road was the point of concern for the Planning Board.
Mr. Hopkins noted he could not secure a building permit until the bond was in place so he wasn’t entirely sure the bond was a necessary condition. However, wording could be added to the conditions if the Planning Board so desired.
Mr. Hopkins hoped the application for conditional use would be the triggering action of the bond process. Mr. Collier maintained it was very important to know the order of these actions. Ms. Andrews suggested that the condition could be that prior to the construction of the road the bond has to be posted. Mr. Collier preferred a timeline for the various actions.
Mr. Tracy felt that wouldn’t work because the next applicant could have an application that requires an unusually long amount of time. Mr. Collier didn’t feel the process had to be fair to all potential applicants.
Chairman Brawley felt the Planning Board was concerned about the road. Mr. Collier was more worried about the use of Bangor Hydro lot with regard to transformers and fire. He pointed out that the Board knows nothing of the specifics of what Bangor Hydro plans to install.
Mr. Hopkins noted that if the project is not approved by the Planning Board, Bangor Hydro is already there and they already have a permit to build, and the current grades are already there.
CEO Keene noted the vehicles go up the current road to the Bangor Hydro lot. Mr. Collier stated the current road had been considered a driveway when the Bangor Hydro lot was created. CEO Keene read Section 7 of the Subdivision Ordinance: “No lot or unit in a subdivision may be sold, leased, or otherwise conveyed before the improvements upon which the lot depends to be fully serviced ( e.g. sewer, road, water, etc.) are completed in accordance with the provisions of the Ordinance…”
Mr. Collier noted that the parcel was already sold to Bangor Hydro and facilities built. CEO Keene reiterated that that was when the road was considered a driveway because the area was not a subdivision at that time.
Mr. Hopkins stated that if this is approved and if the subsequent application – a conditional use - is approved the first thing he’d do is build the road before any improvements were made to the lot. From a financing perspective, Mr. Hopkins won’t get funding for the project until there’s actually an approved structure.
Mr. Collier suggested adding wording such as “subject to any additional uses being approved for any of the lots on the subdivision.”
Mr. Tracy cautioned that the wording would effectively hold Bangor Hydro hostage through no fault of their own.
Mr. Hopkins noted the lease is signed and its commencement is contingent on obtaining these approvals. Mr. Tracy pointed out that in that case the area is not a subdivision until the Planning Board approves it because the lease is not approved rendering the third lot is nonexistent until the subdivision is approved. Mr. Collier disagreed; once the plan is approved the area is a subdivision and all the regulations pertaining to the subdivision apply.
Mr. Hopkins noted he was reasonably comfortable that if that were to happen, and a future application were held up and Bangor Hydro needed to make modifications, it would not be a problem. The work is not extensive; less than 250 feet of modification to the road.
Ms. Andrews asked if the subsequent conditional use permit application is not approved and the lease becomes nonexistent, is the area still considered a subdivision. Mr. Collier affirmed it would be considered a subdivision. It was noted that a subdivision can be un-subdivided or amended with Planning Board approval.
Mr. Hopkins inquired whether the subdivision could be signed but delay recording. Chairman Brawley noted the recording is required to take place within a certain timeframe after approval.
The condition agreed to by the Board states:
Prior to approval of any additional use on any of the lots in the subdivision, applicant shall have completed negotiation on and execution of a performance bond with the Town of Mount Desert concerning regrading of the subdivision road per plans previously submitted to Fire Chief Bender and dated October 31, 2012, and completion of construction of the cul de sac per said plan.
Mr. Collier inquired whether Fire Chief Bender commented on the stormwater management. Mr. Hopkins said he did not.
Mr. Hopkins verified that the next steps would be for him to bring back the mylar plans for signatures, and submit the bond to the Town. Mr. Collier inquired whether the final drafts of the deeds had been submitted. Mr. Hopkins noted they had been sent to Bangor Hydro’s attorneys and he would follow up with them. The deeds would then have to be reviewed by attorneys for A.C. Fernald & Sons, Inc. Once the final copies were available Mr. Hopkins promised to get them to Attorney Collier. Mr. Hopkins added there would be a complete title policy on the property before any construction began.
Larry Stabile, an abutter to the property, asked how regrading the road would affect his driveway. Mr. Hopkins replied the grade would improve from 20% to 12%. A portion of the road would be repaved. The newly graded road would merge into his driveway.
There were no other comments from the public.
MR. TRACY MOVED TO APPROVE WITH CONDITIONS AS RECORDED BY THE RECORDING SECRETARY. MR. CLUNAN SECONDED.
AFTER SOME DISCUSSION THE MOTION WAS REVISED TO MOVE TO APPROVE SUBJECT TO THE ADDITION OF THE CONDITION AS RECORDED BY THE SECRETARY AND ADDITION OF INSET ON LOT 2-1 DETAIL ON PLAN DATED 12/3/12.
Prior to approval of any additional use on any of the lots in the subdivision, applicant shall have completed negotiation on and execution of a performance bond with the Town of Mount Desert concerning regrading of the subdivision road per plans previously submitted to Fire Chief Bender and dated October 31, 2012, and completion of construction of the cul de sac per said plan.
MOTION APPROVED 5-0.
Mr. Tracy asked that, assuming the Board would sign off on the plans in January, was there a prediction of when the anticipated conditional use permit would be applied for. Mr. Hopkins felt the application would follow as quickly as possible.
Mr. Clunan noted that in January he would no longer be a Planning Board member and would not be in the area to sign off on the plans. Mr. Collier stated that a majority of the board signing the plans would be sufficient.
V. Workshop:
There was no workshop discussion.
VI. Other:
It was agreed to return to the question of the November 13, 2012 Minutes. Ms. Andrews and Mr. Collier agreed that the paragraph starting on line 30 of page 3 of the Minutes should be deleted, leaving only the sentence “Mr. Musson reviewed the work proposed.” There were no further revisions. It was noted voting members for these Minutes would be Chairman Brawley, Mr. Clunan, Mr. Tracy, and Ms. Andrews. MS. ANDREWS MOVED TO APPROVE THE MINUTES OF NOVEMBER 13, 2012 AS AMENDED. CHAIRMAN BRAWLEY SECONDED. MOTION APPROVED 3-0-1. (CLUNAN IN ABSTENTION)
CEO Keene reported that Sandy Andrews was resigning his position though he planned to be at one final meeting.
CEO Keene requested that the Planning Board formally move to accept the withdrawal of Conditional Use Approval Application # 017-2012. Mr. Collier noted the reason it had to be voted on was that it must be a withdrawal or denial. This will make the circumstances clear. MR. TRACY MOVED TO ACCEPT THE WITHDRAWAL OF CONDITIONAL USE APPROVAL APPLICATION # 017-2012, MS. ANDREWS SECONDED. MOTION APPROVED 5-0.
Ms. Andrews inquired what the Board of Selectmen’s response was regarding the suggestion of hiring a Planner. Chairman Brawley said the Board of Selectmen stated they preferred to continue using consultants.
CEO Keene announced that this was Mr. Clunan’s last meeting. She noted Mr. Clunan had served on the Planning Board for 12 years. Chairman Brawley noted that Mr. Clunan had presented the Town with a gift. Ms. Keene displayed the new edition of Webster’s New Collegiate Dictionary to the Board. The Planning Board requested Mr. Clunan sign the new dictionary, which he reluctantly did. MR. TRACY MOVED TO THANK MR. CLUNAN FOR HIS MANY YEARS OF DEDICATED SERVICE TO THE PLANNING BOARD. CHAIRMAN BRAWLEY SECONDED THE MOTION. MOTION APPROVED 4-0. CEO Keene stated that Mr. Clunan would be missed.
VII. Adjournment
CHAIRMAN BRAWLEY MOVED TO ADJOURN. MS. ANDREWS SECONDED. MOTION APPROVED 5-0. MEETING ADJOURNED AT 7:13PM.
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