Mount Desert Planning Board Meeting
Town Hall Meeting Room, Northeast Harbor
October 11, 2011
6:00PM
Public Present
Earl Brechlin, David Turner, Douglas M. Miller, Diane Miller, Deborah Reed, Lynne Williams, Caroline Felkel, Timothy H. Gott, Katrina Carter, Cindy Phelps, Mark Phelps, Noel Musson, Alisha Strater, Charles Stephenson, Anne Funderburk, Douglass (Scamp) Gray, Brad Gray, Edie Dunham, Ted Bromage
Board Members Present
Sandy Andrews; Ellen Brawley, Chair; James Clunan, Vice Chairman; and Robert Ho; alt.; Patti Reilly, Secretary; and Joseph Tracy
Kim Keene, CEO; Claire Woolfolk, Recording Secretary
- The meeting was called to order at 6:00 p.m. by Ellen Brawley.
CEO Keene informed the Board and members of the public that AT&T’ Mobility’s attorney Mr. Barry Hobbins has file an 80B Rule Appeal with the Superior Court; therefore, the Planning Board has no jurisdiction to hear the remand at this time. The hearing for the application #017-2011 will not be heard tonight.
Conditional Use Approval Application(s):
- Conditional Use Approval Application #025-2011
NAME(S): College of the Atlantic
AGENT(S): Alisha Strater
LOCATION: 169 Beech Hill Road, Mount Desert
TAX MAP: 9 LOT(S): 43 ZONE(S): RW3/SR5
PURPOSE: Section 5.5 - Amendment to current use of horticulture activities and seasonal produce sales.
Site Inspection: 4:00PM
No conflict of interest was reported. Sandy Andrews, Ellen Brawley, James Clunan, Patti Reilly, and Joseph Tracy are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times on September 28, 2011.
A MOTION TO find the application complete WAS MADE BY Mr. Andrews; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
Site Inspection was attended by Ms. Brawley and Mr. Andrews; reported by Mr. Andrews. The proposed green house is to be located on the western side Beech Hill Rd. It will be immediately adjacent to three other existing greenhouses. The 96’ x 14’ x 30’ structure is comprised of four concrete anchors to secure the structure during the storms and a steel frame covered in plastic. The new structure will be identical to the other existing greenhouses. The greenhouses are visible from the road and the farm.
There were no other comments from the public. CEO Keene confirmed she did receive correspondence via an e-mail from a property owner in the area inquiring into the proposed amended application. Ms. Keene explained that a greenhouse had previously existed on the property, but it had been destroyed. This structure replaces the original greenhouse; COA wants to move the location and enlarge the footprint; therefore, this is an amendment to the original conditional use permit.
The Board reviewed the Standards of Section 5.5 of the LUZO, as amended May 3, 2011. See attached Section 5.5 for CUA Amendment # 025-2011.
A MOTION TO APPROVE a 96’ X 14’ X 30’ greenhouse as described in the Conditional Use Application # 025-2011 WAS MADE BY Mr. Clunan; SECONDED BY Mr. Tracy.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (5-0).
- Conditional Use Approval Application #011-2011
NAME: Grayline LLC; Douglass Gray, Jr.
LOCATION: 18 Main Street, Seal Harbor
TAX MAP: 30 LOT: 8 ZONE(S): VC
PURPOSE: Zoning Board of Appeals remand.
SITE INSPECTION: 3:00PM
No conflict of interest was reported. It was confirmed the notice was published in the Bar Harbor Times on September 28, 2011.
Ms. Reilly questioned why the application is being considered as Services 3 when the application is for storage and not for the operation of a business. Ms. Keene clarified that page three indicates that the specific section of the LUZO to be considered is Services 3 (not wholly enclosed). Mr. Clunan said that the Board of Appeals passed a motion to sustain the appeal and remand it back to the Planning Board for the issuance of a conditional use permit under Services 3. Ms. Reilly asked if they could do that. Other Board members did not know.
A MOTION TO find the application complete WAS MADE BY Mr. Andrews; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
Site Inspection was attended by Ms. Brawley and Ms. Reilly; nothing has changed since the prior site inspection. Mr. Andrews suggested that the site inspection from May 23, 2011 be used.
A MOTION TO USE THE SITE INSPECTION FROM May 23, 2011 WAS MADE BY Mr. Andrews; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
Site Inspection of May 23, 2011
The site is located on Main St. in Seal Harbor and was previously a convenience store and gas station. The area is paved for parking. There is a commercial building with a right-of-way drive to the right that goes around behind the building and down a steep slope to another building. Access to this other building is via crossing town land (hence the right-of-way). The town routinely stores large equipment on the land across the driveway. The area is already being used as storage for construction vehicles.
Mr. Gray described an incident that occurred at today’s site inspection. He reported that the first thing that Ms. Reilly said was that she was there to protect the integrity of Seal Harbor and that she also said she did not like to see the construction equipment in the parking area. He asked that the Planning Board recuse her from this hearing because she has come to the meeting with a bias. Mr. Tracy agreed that Ms. Reilly should be recused. Ms. Reilly refuted the incident as described by Mr. Gray and said her words were taken out of context.
There were witnesses present to the conversation (Brad Gray and Ellen Brawley). Ms. Reilly explained that she was playing devil’s advocate to bring herself up to speed on the application, and that she was actually in favor of the application. Ms. Reilly said she had planned on recusing herself and had sent an email to that effect to the CEO this afternoon. She then reconsidered when she was asked by someone why she should recuse herself.
It was established that Board members are allowed to have an opinion but not a financial interest in the applications. If a member has an opinion but not a financial interest, they do not need to recuse themselves.
Ms. Reilly agreed to recuse herself if the applicant and co-Board members wanted her to.
Mr. Clunan MOTIONED to accept Ms. Reilly’s recusal; SECONDED by Mr. Andrews.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (5-0).
Sandy Andrews, Ellen Brawley, James Clunan, Robert Ho, and Joseph Tracy are the voting members for this hearing. Mr. Andrews is the Secretary for this hearing.
Letters from Mrs. Anne Funderburk and Ms. Sydney Roberts Rockefeller in favor of the compromise reached at an earlier Board meeting where Mr. Gray would have the storage of sand/gravel and construction equipment behind the building were read into the record.
Members of the public concurred with the compromise reached earlier and wanted it re-introduced it for consideration in support of Services 3.
Mr. Gray objected to the introduction of the letters and restated that the Board’s job tonight was to issue the permit under Services 3. At the Appeals Board meeting it was determined that the ordinance was ambiguous and that the permit was to be issued.
Chairman Brawley stated that the Board would reconsider this application under Services 3.
Mr. Andrews said that it seemed Mr. Gray was originally amenable to the compromise; now it seems that he does not want to consider the compromise. Mr. Gray said he felt pressured into the earlier agreement because at the time of the hearing he thought the Board was going to deny the permit outright. He wanted to be able to use his property as he needed to use it.
Edie Dunham reminded the Board that Mr. Andrews stated at a prior hearing if there is something in the ordinance that is more specific, that is the definition which should be used (referring to the storage of bulk material and equipment vs. Services 3). Mr. Andrews replied that the ZBOA over-rode the Planning Board and remanded it back to them to consider under Services 3. If there is a disagreement, the proper place for that consideration is in a Court of Law.
Various members of the public made statements in opposition to having the storage of sand/gravel and construction equipment on the street level for reasons such as aesthetics, safety, consideration of prior uses of the property, the character of the village Main Street, etc.
Other members of the public spoke out in favor of Mr. Gray being able to use his property as he needs to. Cindy Phelps said that the Town should be honored to have a member of the community dedicated to provide services to its community members. Sharron Gilley doesn’t believe that Mr. Gray would allow his property to become an eyesore to the community.
Mrs. Dunham commented that the property in question is a significant piece of property in a primary location of the village. She said the current use is not the same as the use the retail store that it originally was. Mr. Andrews said she could take it to court if she felt so strongly.
Ms. Reilly felt that having the storage behind the building was OK under Services 3.
Chairman Brawley said that the permit would most likely be denied based on visual impact if the bulk storage and equipment are not behind the building.
Mr. Gray pointed out that the Town stores their equipment on property located in a place that is visible from the street. He submits that he should have the same use of his property.
The Board reviewed the minutes of the Appeals Board remand and determined that the Appeals Board found, due to the ambiguity in the ordinance, the decision should be in favor of the land owner.
Mrs. Funderburk said she attended the ZBOA hearing and that the ambiguity arose as to whether the Village Commercial definitions should be followed and the lack of concrete definitions under Services 3 for heavy equipment and storage of materials.
Mr. Andrews said that the Zoning Board does not have the authority to determine what the Planning Board’s decisions would be. He interprets the intent of the Zoning board as the Planning Board needs to review the application as a construction company rather than the storage of bulk materials and heavy equipment.
Mr. Gray objected to the Board’s discussion of whether the permit should be issued vs. considered under Services 3. He said the motion and remand from the Zoning Board is clear that the permit is to be issued by the Planning Board under Services 3.
Ms. Keene clarified that the motion was for a permit to be issued under the Services 3 use, but the finding of fact of the September 14, 2011 Appeals Board stated:
It was determined by the Board to be that terms in the ordinance are ambiguous and not defined in the ordinance. Therefore, it should be construed in favor of the landowner, and that the proposed used fell within Section 3. These findings of fact were approved 6-0.
A MOTION TO POSTPONE this hearing until an opinion from MMA is obtained as to whether the Zoning Board’s motion to issue the permit under Services 3 is a proper order to the Planning Board WAS MADE BY Mr. Tracy; SECONDED BY Mr. Andrews.
Mr. Andrews said he thought the Board should interpret the Zoning Board’s remand as asking the Planning Board to reconsider this application as a Services 3 application and to go through the process. A decision would be reached that is subject to confirmation that this is in fact what the Zoning Board meant when they issued the remand, and subject to an MMA opinion.
Mr. Tracy felt he did not have latitude to consider this application in favor of the applicant because there are certain conditions that are prohibited by the LUZO under Services 3 and they have to be honored. The amount of bulk materials is inconsequential and is prohibited. To the point, specificity in the ordinance trumps ambiguity.
Chairman Brawley said she felt she would have to go with the Planning Board and Appeals Board manuals that state when there is ambiguity in the ordinance, the decision must be made in favor of the land owner. The ambiguity being between Services 3 (which allows for construction business) and the prohibition of construction equipment & bulk storage of materials; obviously a construction business is going to include construction equipment.
Mr. Andrews withdrew his second of the motion; Mr. Clunan seconded in his place.
A VOTE WAS CALLED AND THE MOTION TO POSTPONE CARRIED. (4-1,Brawley No).
Completeness Review:
OWNER(S): Virginia S. Phelps, Trustee et als.
AGENT: Noel Musson, CES Inc.
LOCATION: 14 Manchester Road, Northeast Harbor
TAX MAP: 25 LOT 15 ZONE(S): SC/SR1(footnote g)
PURPOSE: M.R.S.A Title 30-A § 4401 & Subsection (D) (6). (SD #002-2011)
Mr. Andrews is an abutter and has recused himself. Ellen Brawley, James Clunan, Patti Reilly, and Joseph Tracy are the voting members for this review.
Chairman Brawley acknowledged the receipt of Agent, Noel Musson’s summary of Section 6 of the LUZO as requested by the Chairman at the sketch plan review. Mr. Clunan pointed out page 3 (6B.10 Lots) should not show +/- because a “-“ would make the lot non-conforming. Mr. Andrews noted that where there is an existing well shown that is in fact part of a former sewer system. Mr. Musson noted the correction and will make sure it is reflected on the plat.
A MOTION TO find the application complete with reference to section 4, 5, & 6 WAS MADE BY Mr. Clunan; SECONDED BY Mr. Tracy.
There were no other comments from the public. CEO Keene confirmed there had been no correspondence from the public.
The Board reviewed the application and found it to be complete with the above noted changes.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (4-0).
The draft minutes from the May 23, July 25, August 25, September 12, and September 26 meetings were unanimously approved.
A MOTION to approve the minutes from the May 23, 2011 meeting as written was MADE BY MR. Andrews; SECONDED by MR. Tracy.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (3-0)
A MOTION to approve the minutes from THE July 25, 2011 meeting as written was MADE BY MR. Andrews; SECONDED by MR. Clunan.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (3-0)
A MOTION to approve the minutes from the August 25, 2011 meeting as amended was MADE BY MR. Clunan; SECONDED by MR. Andrews.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (4-0)
A MOTION to approve the minutes from the September 12, 2011 meeting as written was MADE BY MR. Clunan; SECONDED by MR. Tracy.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (4-0)
A MOTION to approve the minutes from the September 26, 2011 meeting as amended was MADE BY MR. Clunan; SECONDED by MR. Tracy.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (3-0)
Chairman Brawley detailed a procedure for the proper approval of minutes in absentia. She asked that each Board Member read the minutes as soon they receive them.~ If members know that you will not be able to attend the next Board meeting, email any additions or corrections to the Chair (Ellen Brawley) with a cc to the recording Secretary (Claire Woolfolk).
The suggested format for email approval is:
I approve the minutes of __________________ as written/with the following amendments:~
V. A MOTION TO ADJOURN WAS MADE BY Mr. Tracy; SECONDED BY Mr. Andrews.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (5-0)
Meeting adjourned at 8:22 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, October, 24 2011 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Patti Reilly, Secretary
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