Planning Board Meeting Minutes
Town Hall Meeting Room, Northeast Harbor
August 22, 2011
Public Present
Katrina Carter, Norman A Bourg, Edith Scharp, Karen Dube, Thomas Wheatley, Robert E. Hamor Jr., Douglas B. Chapman, Sally G. Black, Jim Black, Phoebe & Gerrish Milliken, Agnes Peele, Cynthia Stroud, Steedman Bass, Gordon Longsworth, George A. Bass, Hope Lapsley, Barbara Danielson, Ruth Baldwin, Jean Travers, Weston Milliken, Alison Schafer, Seth Singleton, Margot Bass
Board Members Present
Sandy Andrews; Ellen Brawley, Chair; James Clunan, Vice Chairman; and Patti Reilly, Secretary
Kim Keene, CEO; Claire Woolfolk, Recording Secretary
I. The meeting was called to order at 6:06 p.m. by Ellen Brawley.
II. Public Hearings
Section 4.4 – Non-conforming Uses (1) Expansions:
Expansions of non-conforming uses are prohibited, except that non-conforming residential uses may, after obtaining a permit from the Planning Board, be expanded within existing residential structures or within expansions of such structures as allowed in Section 4.3.2 above.
Owner(s): Paul B. & Serena Kusserow
Agent(s): Robert E. Hamor Jr.
Property Location: 14 Lower Dunbar, Seal Harbor
Tax Map: 31 Lot: 79-1
Zoning: VR1
Site Inspection: 3:00PM
No conflict of interest was reported. Sandy Andrews, Ellen Brawley, James Clunan, and Patti Reilly are the voting members for this hearing.
A MOTION TO FIND THE APPLICATION COMPLETE WAS MADE BY Ms. Reilly; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (4-0).
It was confirmed the notice was published in the Bar Harbor Times on August 10, 2011.
Site Inspection was attended by Mr. Andrews and Mr. Clunan and one abutter; reported by Mr. Clunan. It was not at all clear what the work was to be done from the paperwork and since there was not a representative of the applicant present to explain the project, Mr. Clunan asked that the item be tabled until a complete site inspection could be held.
CEO Keene asked if they could not determine what the applicant was applying for by reviewing their packet. Mr. Clunan and Mr. Andrews said they could not and that it would have been very useful to have someone there to explain exactly what the project entailed.
A MOTION TO Table until the meeting of September 12, 2011 WAS MADE BY Mr. Andrews; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (4-0).
Conditional Use Approval Application(s):
A. Conditional Use Approval Application # 020-2011
NAME(S): Barnacles, LLC
AGENT(S): CES, Inc.
LOCATION: 8 Barnacles Way, Northeast Harbor
TAX MAP: 23 LOT: 1-1 ZONE(S): Shoreland Residential 2
PURPOSE: Sections – 6C.7 - Marine and Freshwater Structure
Performance Standards.
SITE INSPECTION: 4:00PM
A MOTION TO FIND THE APPLICATION COMPLETE WAS MADE BY Mr. Clunan; SECONDED BY Mr. Andrews.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (4-0).
No conflict of interest was reported. Sandy Andrews, Ellen Brawley, James Clunan, and Patti Reilly, are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times on August 10, 2011.
Site Inspection was attended by Mr. Andrews, Mr. Clunan, and Ms. Brawley; reported by Mr. Andrews. The site is located on southern shore of NEH between Sargent Head and Gilpatrick Cove. The proposed dock will be right next to Gilpatrick Ledge in a place where it will be highly visible to all the neighbors and everyone sailing about. It was noted that Gilpatrick Ledge is a major hub of bird activity. There are no other docks visible in the proposed area. Nothing had been buoyed to mark the location/expanse of the project so that it was impossible to see where the dock was going to be and what its possible impact would be. It was also high-tide so that also made it difficult to get the proper visual assessment.
Discussion
CEO Keene confirmed there had been letters dated today, August 22, 2011, from the public.
• Stephen Stroud expressing serious concerns and opposition to the proposed construction of the pier. The letter was summarized into the record by Chairman Brawley (see copy attached).
• Joan Stroud Blaine letter of opposition. The hand-written letter was difficult to read, however Chairman Brawley attempted to read the letter into the record (see copy attached)
Hope Lapsley asked have someone state what the alternative is. She said there is a lawsuit involving the brother, William (Bill) Grace, and his sister (Theresa Sears, applicant) in regards to the use of the original dock owned by Dr. Grace. She asked why this dock, which was the original dock to the house, can’t be used by the applicant. This alternative has been historically used by the property owners. Mr. Clunan explained that communal docks are encouraged but they are not mandatory. Mr. Andrews said ordinance does not require the Board to consider if an applicant has access to an alternative.
Tim Brochu, CES Engineer representing the applicant, clarified that the communal dock is currently in litigation and it is likely that she will lose her rights to use her brother’s dock. This is why the new dock is under consideration.
A MOTION TO APPROVE WAS MADE BY Mr. Clunan; SECONDED BY Mr. Andrews.
Discussion
Mr. Brochu explained the project as residential dock with a fixed length 150 ft. The fixed section will be supported by a seasonal ramp and float of 75’ off the end, bringing the total length of the dock to exceed 225. The deck will have a steel support system and the entire structure will be covered with wood. The final design has not been completed yet. The application went to The Army Corp of Engineers and the Department of Environmental Protection (DEP) and has obtained approval from both of them. The application has been under substantial review by both of the agencies in regards to wildlife habitat, navigation, and alternatives. Both permits are included in the CUA.
Ms. Reilly asked to see the DEP permit and if they had consulted with the Maine Department of Inland Fisheries & Wildlife (MDIFW) for their approval. She asked to see something from IFW approving this construction. Mr. Brochu said that he would get the approval.
Doug Chapman introduced himself and Tom Wheatley as attorneys representing the opponents to the proposed dock. He said he had various people available to make statements and to present testimonies in support of the opposition.
Gordon Longsworth, Director of the GIS Lab at College of the Atlantic, presented maps so that everyone had a common visual of what is being proposed. The maps included aerial views with each map stepping out further on various scales (marked as exhibits 1, 3, 4, and 5), and a digital data nautical chart (marked as exhibit 2). The board asked questions to clarify what they were seeing.
Mr. Chapman evidenced a copy of the deeds conveyed and subject to the covenant agreements made between June Spencer and In the Woods restricting the construction or placement of a pier or float from the Spencer premises. Quickclaim Deeds with the covenant from Steedman and Margot Bass; Phoebe and Gerrish Milliken; Susan Lyall; and W.B.D. Stroud were marked as Exhibits 6-10 and given to the Board. These covenant deeds are attached to the properties to protect each property against development along the shoreline.
Steedman Bass, abutter, thanked the Board for the public venue. He presented his strong objections against the dock stating that it is not a property battle or anything against the Sears family. He put the size into perspective by saying the length of the dock would be similar in size to putting three 18-wheelers end to end, or if you put it upright it would be taller than a 20-story building. He feels it is an inappropriate size for a 35’ boat in the cove area. A few hundred feet away is the Northeast Harbor Fleet (the Fleet) where the Sears family could get a mooring (Mr. Bass said, tongue in cheek, it would be faster for them to walk to the Fleet mooring than to the end of the 250’ dock). He presented a recent photo (entered as Exhibit 11) taken to show the pristine shoreline with no large
man-made structures and referred to the agreements that the property owners along the shoreline have to keep it that way. In his opinion there would be a serious negative impact on the property values if the massive dock was built; the pristine view does have an economic value. He also said that neither he nor any of the other neighbors he spoke with received any notice from the Federal or State level when the application went under review by the DEP or Department of Marine Resources (DMR). The first he heard about the proposed dock was from the abutters notice sent by the Town’s Planning Board.
Jim and Sally Black, local realtors, were present at the site visit which was at high-tide. They took a photo earlier the day of the site visit at low-tide (entered as Exhibit 12) to show that the dock would stretch across the photo and block the Bass’ view of Gilpatrick Ledge. Mr. Black pointed out Gilpatrick Ledge as a natural area with abundant wildlife.
To quantify the economic impact to property values, Mr. Black spoke of a potential loss of neighboring property values ranging from $500,000 - $1,000,000 with a dock put in an otherwise pristine area; he said that in the end this estimate could prove conservative. He also referred to Exhibit 3 and said that a dock that size usually supported by 2-3 moorings, which would further negatively impact the real estate value. Mr. Black suggested that the Planning Board think about what the future implications would be if they approve this dock and any other future owners’ wishes to build docks in the cove.
Sally Black spoke about a renter who rents the Bass home each summer and said that the renter expressed great sadness about a potential dock interrupting the view. Mrs. Black also said she thinks the dock could impact the value of the property as a rental since one of the things that make it unique is the unspoiled shoreline.
Mr. Brochu asked to have access to copies of the exhibits submitted. CEO Keene said that they would remain in the Town Office as part of the record but that he could have access to review them.
Mr. Milliken, a neighbor who owns property with five siblings, testified that he has and continues to enjoy the long walks to Gilpatrick Ledge as a child and as an adult with guests who have children. He stated that should the pier be approved, the long-preserved nature of these walks would no longer be available up and down the beach.
Agnes Peele, a neighbor who owns 36 South Shore Road is opposed to the construction because of:
a) Its physical incompatibility with the area since there are no docks in the cove, an area between Gilpatrick Ledge and Sargent Head Point;
b) The dock would affect the viewshed integrity. The dock would be inappropriate because it affects the abutters and the nearby neighbors to the Sears property more than the Sears themselves. The visual impact would be minimal to the Sears; however huge to the others along the cove. It would go right across the property views. One of the reasons she chose the location was for the unobstructed views;
c) Concerns for the tidal flat;
d) Precedent for building in the cove;
e) The availability of other reasonable alternatives; and
f) The duty to protect the beauty and character of Mount Desert Island.
Ms. Peele stated that these opinions are not based on any animosity with the Sears family; in fact her children are friends with several of their children. She also submitted her statement and statements from her children to the Board for the record (they were not included as exhibits). This is so important to her that she flew up from Connecticut today for the meeting. She asked that the Board deny this application.
Margo Bass, abutter, read into the record a lengthy oration of the history and uses of the Bass property along the cove (entered as Exhibit 16). In the written statement she issued serious objections to the dock, other objections of general relevance, and presented photos (Exhibits 13-15) from the 2005 Sears application to build a pier which was withdrawn before going to the Planning Board. Ms. Bass referenced three parts of Section 6 of Mount Desert’s LUZO (6A.1, 6A.9, and 6C.7.2&4) as evidence as to how important the compatibility with current uses and maintenance of the current character is to the Town. She cannot recall ever seeing a boat moored in this cove for the last 40+ years. Other objections regarding the lack of notification from the Federal or State level were voiced. Town notification was
the only notice received and that it was received in mid-August. Ms. Bass also echoed the huge negative financial impact of $500,000 to $1,000,000 (conservatively) and loss of rental income. She proposed alternative options to the construction of a large pier. Ms. Bass described how her almost 80-year-old father took a walk from his front door (abutting property) to the end of the Fleet float, and that it took him 6 minutes and 20 seconds. The same walk from 8 Barnacles Way is comparable in distance. Ms. Bass also summarized a conversation she had with John Lemoine, Deputy Harbormaster of the Northeast Harbor. He spoke of seasonal moorings for 30-40 foot boats available for rent and that ownership of a mooring is also feasible without waiting too many years. Finally, she got preliminary indications from the Fleet that moorings for boats in the size range of the applicants are available effective immediately.
Ms. Danielson, a year-round resident on the cove, submitted a written statement that she read into the record (entered as Exhibit 17). The statement contained a strenuous objection to the proposed pier, citing environmental concerns such as the cove being home to nesting birds and a habitat for osprey, ducks, and herons. She claimed that the cove has been a space traditionally without piers and that there are several places where boats can moor nearby, that these places are within walking distance.
Cynthia Stroud, Trustee of Ms. Danielson’s property, flew in from NY specifically to attend this meeting. She read a letter of objection into the record (entered as Exhibit 18). Her objections included opposition to the pier based on various financial reasons including the devaluation of neighboring properties, the integrity of the waterfront including views on and off shore, and the fact that there are other very reasonable options for dock and water access available to the applicant. She asked that the Board disallow the application because the benefits to one owner are not neighborly.
Mr. Wheatly said that Ms. Bass had covered his points but added in his closing statements that the structure would forever change the character of the cove and set precedence for other future structures. This is an unnecessary project given the other options.
Mr. Billings, attorney for the applicant, said that certified mailings to the Bass family from the State came back unclaimed. He said that the appeal deadlines on the State permits (DEP and Army Corp) have run out and that the Board should focus on hearing this application based solely on the Town ordinance. Mr. Billings explicitly cited Section 6C.7 which specifically defines a pier and dock as an allowable marine structure, and that the application is consistent with the use in the Shoreland zone of the Town ordinance. People wharfing out are part of Maine’s coastal heritage and this use is an ancient right. He told the Board that they should focus on Theresa Sears’ right to wharf out as long as she complies with Maine law and town ordinances. Mr. Billings submitted that the affects of the pier on
neighboring property values is pure speculation. He told the Board that it is not their job to balance the issue of property values but rather to apply the ordinance as it is written. He commended the conservation efforts of the neighbors, but then stated that his client’s property is not part of a conservation easement. He said that the pier would not impede kayakers or walkers because they could easily go under the pier. Mr. Billings addressed the alternative options:
1) Use of the Bill Grace dock is not feasible given the lawsuit disputing Ms. Sears’ right to the use of the dock on his property;
2) The Fleet dock was looked at by the DEP (Audio 2:14:25). He leaves it to the Board to compare a 6 ½ minute stroll against owning a piece of property that you were told when you purchased it that you could build your own dock on that property.
He then addressed the environmental impacts and said they would be minimal. The eel grass and other creatures have lived on rock and wood for hundreds of years. Next Mr. Billings said the size of the dock is within the limitations set in the ordinance and complies with ME law. Regarding the conservation deeds, they are outside of Ms. Sears chain of title and do not bind her. Mr. Billings said this is a building permit ordinance and not a natural resource protection ordinance. The LUZO doesn’t give criteria for alternatives as a condition for issuing permits. Ms. Sears wants the dock for her use and for the potential resale of her property. She was told that she could build a dock when she purchased the property. Mr. Billings maintains that Ms. Sears should be allowed to build her dock.
Mr. Clunan said that the Board is working from a Land Use Zoning Ordinance and that it deals with more than just building permit applications. As a Planning Board they must look at the overall impact of the projects constructed. This is more than a simple building permit application. Historically the use of the ME coast included the need of docks for “wharfing out” for commercial uses and transit in times when land travel was not easy, but the historical uses of “wharfing out” do not apply to this case today.
Ms. Reilly stated that the purpose of the ordinance is to provide standards to determine if the project is compatible. She said the State permits were given based on the information provided and did not include site visits. She would like to see the analysis of the reasonable alternatives presented to the DEP that was called for in their permit application. Also, the DEP made their decision based on CES presenting to them that there were no public boat facilities near the proposed building project. The DEP was not made aware that the Sears are members of the Northeast Harbor Fleet and that there are moorings currently available. Mr. Andrews also pointed out that Clifton dock is available and that it is even closer than the Northeast Harbor town dock. Ms. Reilly said there is an appeals process on these permits
and that she would request a site visit from the DEP. She is very familiar with how these permits are approved and the data they use to approve them. Additionally, she said when the Planning Board site visit was done, there were no poles raised to 22’ or buoys placed to give Board members an idea of the mass of this structure. The Board has to consider the public and the Town as well as the neighboring properties when reviewing applications. This is an area open to the public below the high-tide mark. Also, Ms. Reilly said she would like to have Dr. Jane Disney from the Bio Lab come to look at the area and give her professional opinion regarding the impact of the dock to the local eel grass. Eel grass is very sensitive and important to the ecological system of the area. It is one of the things that makes the cove so valuable to the local wildlife.
Mr. Billings requested an opportunity to respond to the evidence submitted by the opposition should the board decide to go on additional fact finding. The first they heard about any opposition was Friday afternoon. He would like to have time to review their evidence and respond to these exhibits. Ms. Reilly said if it had been a well-prepared application, it would have addressed all these issues. Mr. Billings stated that the application was prepared well enough to pass DEP on these questions. Ms. Reilly said that her point is the DEP made their decision based on the information provided and that the information was not complete.
Mr. Andrews said he was shocked to go on the site visit and find that the applicant hadn’t even put out a buoy to show the impact of the project. This is the minimum that a professional engineering firm should have done to prepare for a site visit. He would have preferred to see that the applicant provide photos and a mock up to give Board members an idea of the size of this project and what it is going to look like from various vantage points, rather than coming from the opposition.
Ms. Bass requested that Mr. Billings submit the DEP mailings and documentation. He agreed that if the Board requested it he would provide it. Board members said it was a reasonable request and did ask that it be submitted.
George Bass was going to make a statement. Mr. Billings objected to the witness being taken out of order and asked that if Mr. Bass be allowed to make his comment that Mr. Brochu be allowed to make his presentation tonight. The Board agreed that that was fair. Mr. Bass had a question regarding a past proposal of a 150’ long pier and a argument about having that built. He wondered what happened with that application and if it had bearing on tonight’s application. The Board said that it was a different issue and that not all docks are allowed.
Ms. Reilly questioned the engineering drawing and that the measurements in the application appear to be too long.
Mr. Brochu made his presentation. Length of the dock is measure from the point of the highest annual tide. The approach ramp is pinned to the ledge and is not considered as part of the dock. The measurements were confirmed by the CEO and are realistically only 150’ long.
Ms. Bass asked about the total length of the top of the stairs to the end of the float. She asked that Mr. Brochu put it on record. Mr. Brochu said he couldn’t give an estimate unless the Board requested it. The Board did not make the request.
Mr. Andrews said it didn’t look like the drawing met the requirements of the size limitations. That it is significantly longer than 150’. Mr. Brochu thought that it was in fact within the guidelines as determined by his discussion with the CEO. Mr. Clunan said the Planning Board can over-rule the CEO in terms of interpreting the LUZO. He asked CEO Keene to tell the Board how she came up with the measurements. She went over her interpretation of the submitted plans. Mr. Brochu said the cribs could be moved one way or another and that he could adjust the project by 5’ or so by shifting the placement of the cribs. The Board requested new drawings to look at.
Mr. Andrews wondered if the board could request additional information after they found the application complete. It was determined that they could ask for more information. He questioned if they needed to approve or deny the application based on the application as submitted and found complete, meaning they could not ask for more information. A discussion ensued as to whether they should move forward with the process or table the application and request the additional information. Items requested for additional information were also discussed.
Mr. Billings asked if these things are above and beyond what is called for in the ordinance. Ms. Reilly said they are not above and beyond; these items are justification for the application. Mr. Billings said the applicant submitted a complete application and that if additional information was required, the applicant would have liked to have known that early on. Mr. Billings discussed Section 6A.9. vs. 6C.7.4 and said that courts look at the more specific parts of the ordinance as overruling the more general parts of the ordinance and that Section 6C talks about docks being one of the uses in the Shoreland zone. Ms. Reilly said the uses are allowable uses but the application is for a Conditional Use and that doesn’t necessarily mean that an allowable use will be approved on a Conditional Use
Application. The use has to conform to other standards within the ordinance and not just the allowed uses. The ordinance is not a building permit ordinance.
A preliminary list of requests was drafted as follows:
1. New drawings that show redesign to meet dimensional requirements of the LUZO,
2. Copy of reasonable alternatives analysis submitted to the DEP, to be verified with the DEP,
3. Qualifications of visual impact assessment done by MDEP,
4. Visual Impact Statement from to include Buoys and height poles, photo mock-ups from land and water range points,
5. Site visit at low tide,
6. Request Environmental Impact assessment from MDIFW with site visit,
7. Opinion of eel grass from Dr. Jane Disney.
A MOTION TO CONTINUE THE HEARING UNTIL THE Thursday, August 25, 2011 at 5pm BY Mr. Andrews; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION TO CONTINUE THE HEARING ON Thursday, August 25, 2011 at 5pm CARRIED UNANIMOUSLY (4-0).
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