Town of Mount Desert Planning Board Meeting Minutes
Town Hall Meeting Room, Northeast Harbor
November 14, 2011
Public Present
Philip Hecksher, Elizabeth Allen, David Allen, Anne S. Funderburk, Douglas Gray, Jr., Brad Gray, Noel Musson, Curtis Phelps, Cindy Phelps, David Burr, Janet Moore, Edie Dunham, Dick Broom, Brian Reilly, Paul Monfredo, Nancy McCormick, Sydney Roberts Rockefeller
Board Members Present
Sandy Andrews; Ellen Brawley, Chair; James Clunan, Vice Chairman; Robert Ho; alt, and Joseph Tracy. (Robert Ho will not participate in the hearings as a quorum of regular members is present.)
Kim Keene, CEO; James Collier, Attorney for the Town; Claire Woolfolk, Recording Secretary
I. The meeting was called to order at 6:02 p.m. by Ellen Brawley.
II. Minutes
The draft minutes from the October 24, 2011 meeting were unanimously approved as amended.
A MOTION TO APPROVE THE MINUTES FROM THE October 24, 2011 MEETING AS AMENDED WAS MADE BY MR. Andrews; SECONDED BY MR. Tracy.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (4-0)
III. Public Hearings
Subdivision(s):
OWNER(S): Virginia S. Phelps, Trustee et als. – 14 Manchester Road, Northeast
Harbor. M.R.S.A Title 30-A § 4401 & Subsection (D) (6).
(SD #002-2011)
AGENT: Noel Musson, CES Inc.
Sandy Andrews recused himself as an abutter. No other conflicts of interest were reported. Ellen Brawley, James Clunan, and Joseph Tracy are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times, October 26 & November 2, 2011 and Mount Desert Islander on October 27 & November 3, 2011.
There were no other comments from the public. CEO Keene confirmed there had been some correspondence from the public.
Chairman Brawley noted that
• There are no roads and right-of-ways,
• No open spaces,
• The lots have all the locations, bearings, and line links are marked,
• All the lots are numbered,
• The permanent reference markers are in place,
• A Performance Bond is not required.
It was noted that a building marked as a “dwelling” should be changed to “structure” on the plats. Also, abutter’s across the Street were not noted on the plats. Noel Musson noted the changes on the plats.
A MOTION TO APPROVE THE SUBDIVISION PLAN WAS MADE BY Mr. Tracy; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (3-0).
Board members Brawley, Clunan, and Tracy signed the plats.
Conditional Use Approval Application(s):
A. 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. (Services 3)
No conflict of interest was reported. Sandy Andrews, Ellen Brawley, James Clunan, and Joseph Tracy are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times, November 2, 2011 and Mount Desert Islander on November 3, 2011.
A MOTION TO USE THE SITE INSPECTION FROM May 23, 2011 WAS MADE BY Mr. Andrews; SECONDED BY Mr. Tracy.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (4-0).
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 and piles of fill on the land across the driveway. The area is already being used as storage for construction vehicles.
Chairman Brawley opened the floor to Mr. Collier so that he could make some opening comments. He stated that his role is to assist the board on making proper procedure. He then presented a two-page memo with five options for procedure on this hearing. (See attached memo dated 11/14/11.)
Mr. Collier then read from Section 2 of the LUZO’s Similar Uses (Page 2-1):
“Unspecified Uses which are substantially the same as, or having effects the same as, the uses listed in Section 3.4 shall be treated the same as those listed uses. Similarity shall be determined by the Planning Board in strict compliance with the standards set forth in Section 6 and with other pertinent provisions of this Ordinance.”
“Any use or activity not listed in Section 3.4 shall be excluded unless the Planning Board, in accordance with Section 3.4, determines that it is similar to a specified use.”
The Board asked Mr. Gray to describe the activities he plans to have going forward. Mr. Gray said he has small pieces of construction equipment (mini excavator and small front end loader). His intent is to use this property to temporarily hold bulk materials (sand & gravel) prior to moving them to a job site. The equipment would also be temporarily stored on the lot when not at a job site (in addition to the previously mentioned construction equipment he has plow trucks, plows, and an equipment trailer). Mr. Gray stated the equipment has no permanent home as it moves from job site to job site. When it is not in use, it would be stored at this property in default. Because his operations are not big enough to have an office, he will not be using the building as an office. In addition to the above
described operations, there would be some vehicle maintenance and incidental parking.
Mr. Clunan said he can’t imagine that the equipment and vehicles don’t have a home, even if they aren’t there on a long-term basis.
The Board asked Mr. Gray if he is in agreement to have the application heard under Services 3. He said yes, that was what the original application was for.
A MOTION TO FIND THE APPLICATION COMPLETE FOR SERVICES 3 WAS MADE BY Mr. Andrews; SECONDED BY Clunan.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (4-0).
A MOTION TO APPROVE THE APPLICATION UNDER SERVICES 3 FOR OPERATING A CONSTRUCTION BUSINESS IN THE VILLAGE COMMERCIAL DISTRICT WAS MADE BY Mr. Andrews; SECONDED BY Mr. Tracy.
There were comments from the public restating objections brought up at previous meetings with special note made to Mrs. Funderburk’s reference to a child seen climbing on the equipment (referred to by Mr. Collier as an attractive nuisance in legal terms). CEO Keene confirmed there had been several letters of correspondence from the public in opposition to this application. The Board acknowledged that they had received the letters and read them.
Mr. Gray reintroduced the petition of 38 year-round residents supporting his use of the property for the storage of bulk materials and construction equipment.
The Standards of Section 6 of the LUZO, as amended May 3, 2011 were reviewed as follows: See attached checklist for CUA # 011-2011.
A VOTE WAS CALLED AND THE MOTION TO APPROVE WITH CONDITIONS CARRIED UNANIMOUSLY (4-0).
Mr. Andrews commented that he thought Mr. Gray had a sensible business plan and that the way he intended to run the business in that area would be fine as long as the storage of bulk materials and construction equipment was limited to the area behind the building and out of site from Main Street. Mr. Andrews further stated that he would support a change in the LUZO which would allow Mr. Gray to operate the business on the scale that he had proposed and invited him to work with the Board on making the necessary changes to the LUZO.
VI. Other Business
Zoning change request proposed by David & Betty Allen – 38 S & H Lane, Mount Desert, ME 04660 – Tax Map 8 Lot 95. Including various abutters/property owners in the area (signed letters on file in the Town Office)
The Allens pointed out a correction to the address of the lot as being 2 Fitz Hugh Lane.
James Clunan abstained as a member of the Board because he signed the Allen’s letter of request for a zoning change and because he is an abutter. He will participate as a member of the public.
Mr. Collier summarized the issue as spot zoning, which is unlawful. He read from the MMA Manual’s chapter on Spot Zoning:
“To determine whether a particular zoning amendment constitutes an act of “spot zoning,” a court must consider a number of factors: “the size of the area to be rezoned, the classification and development of adjacent land, the relation of the amendment to existing zoning patterns and objectives, the planning history of the amendment, and the benefits or detriments which may accrue to the owner of the land, his neighbors, and the community” i.e., is it for the “exclusive and preferential benefit (of the landowner making the request), with no relation to the community as a whole?” …
Mr. Collier said there has to be a good reason for a zoning change; the change must be made in the larger context of the neighborhood. He said that the cover letter was exactly the opposite of what should have been written to support a change for the general good of the neighborhood.
Mr. Andrews declared that a zoning change has to make sense in context of what is good for the whole town. In addition to the global (town-wide) context, soil tests have to be completed to see if the area is feasible for a zoning change.
Ms. Brawley read from the Comprehensive Plan (pgs. 94 & 98):
“…Residential development is best suited in those areas that are currently or potentially serviced by public sewer and water supplies. Development in other areas without public sewer and water supply areas will require adequate measures to protect groundwater resources”
“…Rural Residential areas are those that may be free of multiple natural resource constraints, but are distinct from the village, and still have large tracts of unbroken land or retain their rural character. Residential buildings and other development would be compatible with this character, including extensive areas of field and woodlands. Density should be kept low.”
When considering a zoning change, the Board must look at it in terms of the Comprehensive Plan and determine if it is in line with overall direction the Town is heading. In addition, the Board must ensure that the land itself is suitable for the changes, and that is not for the benefit of one or a few residents. It must benefit the town as a whole.
Mr. Clunan pointed out that the area on the north side of the road, until recently, was not developed. It has been developed within the last 15 years. To the west of the smaller lots, there are several larger lots which could be subdivided if the zoning was changed. He thought that if the larger area were involved and that several neighbors got together to request the change, then it would not be considered “spot zoning”.
V. A MOTION TO ADJOURN WAS MADE BY Mr. Andrews; SECONDED BY Mr. Tracy.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (4-0)
Meeting adjourned at 9:03 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Tuesday, November 15, 2011 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
ORIGINAL SIGNATURE ON FILE IN TOWN OFFICE.
Schofield Andrews, Secretary Pro-tem
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