Town of Mount Desert Planning Board Meeting Minutes
Town Hall Meeting Room, Northeast Harbor
July 25, 2011
Public Present
Anne Funderburke, Brad Gray, Douglass Gray, Jr., Phillip Heckscher
Board Members Present
Sandy Andrews; Ellen Brawley, Chair; and James Clunan, Vice Chairman
Kim Keene, CEO; Claire Woolfolk, Recording Secretary
- The meeting was called to order at 6:04 p.m. by Ellen Brawley.
II. Public Hearings
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: 030 LOT: 008 ZONE(S): VC
PURPOSE: Section 3.4 Services 3 (not wholly enclosed)
SITE INSPECTION: 3:00 PM
It was confirmed the notice was published in the Bar Harbor Times on July 13, 2011.
Mr. Andrews opened by stating that while Mr. Gray and Mrs. Funderburke have come up with a sensible business proposal and worked out a solution; he doesn’t see how the Planning Board could approve this application because it is clearly not an allowed land use by the ordinance in the village commercial district. The LUZO has a very clear ban on the storage of construction equipment and bulk materials in that zone.
Chairman Brawley said she thought it could be argued that Mr. Gray’s equipment is smaller than was intended by construction equipment in the ordinance. Mr. Clunan said that he read the lawyers opinion and that she said “I think a rational argument could be made that a vehicle storage yard would be incompatible with the village district…” Mr. Andrews pointed out that reply from the MMA attorney, Susanne Pilgrim, states that the operations involving an office and other functions, including “light” vehicles would be allowed in the VC district, but the storage of equipment and heavy vehicles would not be compatible with that district. Mr. Clunan said the storage of the equipment would not be considered heavy vehicles (pickup and a light dump truck). Mr. Andrews
agreed; however the small excavator is construction equipment.
Mr. Gray pointed out that the lot next to his has been used by the Town to store construction vehicles and materials for a job. He further cited the BCM permit issued by the Planning Board as precedence for his request. When the permit was issued, there was talk of grandfathering it in, but it was also compared to Blanchard and Gray construction business in Somesville and to Island Plumbing. Mr. Andrews said that he didn’t think they could speak to a decision made by a prior Planning Board; this Board had to base their decision on the current ordinance.
The storage of bulk materials was not addressed in the reply from Ms. Pilgrim, but it is part of the application. Mr. Gray clarified that part of the business is to have bulk aggregate materials available, but they would not be permanent in nature. They would be deposited there by a supplier when Mr. Gray had a job requiring the materials and then moved as needed to the job site.
Mrs. Funderburke pointed out that while the materials might not be there on a permanent basis, they would, since the nature of the business is to include the use of these materials on an ongoing basis, be coming and going on a continuous basis. It is not comparable to a short-term project. Therefore you are talking about storage. She asked how long does the operation have to go on before it is considered storage? She also questioned how small does a piece of equipment have to be before it’s not considered construction equipment?
Mr. Andrews stated that he thought what Mr. Gray is proposing is entirely reasonable and would be supported by the Comprehensive Plan goals, but with the law written the way it is written, the Board’s hands are tied. Mr. Clunan said that unfortunately Mr. Andrews is correct. Mrs. Brawley said it would seem that this application could not go forward.
Discussion ensued as to what future steps could be taken by the Board and the applicant to remedy the situation. CEO Keene read Section 5.6 of the LUZO pertaining to Reconsideration, stating that an application which has been denied may not be resubmitted for a period of 9 months from the denial unless significant changes or circumstances are made to the application, as determined by the Planning Board.
This would give the board time to work on the ordinance and recommend changes to allow something like this and other compatible mixed uses to support the Comprehensive Plan. It was noted that they would have to be very careful on how they word these changes to limit the size of the equipment and operations allowed.
A discussion over what the motion should be for the denial of the application followed.
A MOTION TO find that the application is for the storage of bulk materials and construction equipment, these uses are prohibeted under Section 3.4 of the luzo, see pages 3-6 & 3-8; therefore the application must be denied WAS MADE BY Mr. Andrews; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY (3-0), with apologies.
A discussion followed regarding the changes to the LUZO which could be made to ease the limitations under section 3.4. This application identified a change needed for temporary storage of construction vehicles and small equipment. A definition of what light equipment is would need to be added. Other changes could be to put in a limitation on the temporary storage of bulk materials and the amount of bulk materials being stored. CEO Keene pointed out that both Somesville and Otter Creek would like some of the restrictions eased in their Village Commercial zones to allow for more business operations. Members determined that they could prepare the changes for the next Town Meeting.
Mrs. Funderburke asked if changes are made to the LUZO, would a change affect the use of the property in the future? And if an owner wanted to put a store back on the property, could they do so? CEO Keene answered that retail is allowed in the VC district. Discussion regarding whether the permit should be issued to the property owner or the property began.
Vista and Viewsheds
Mr. Andrews reported that he spoke to Mr. Lunt, Town Manager, to get the approval to hire a consultant to assist with the writing of the wording for the Vista and Viewsheds. Mr. Lunt said it was fine to proceed; the money is there to be used. The Board discussed the candidacy of Noel Musson as part-time temporary planner to assist with the ordinance. CEO Keene said she would discuss with Mr. Musson to see if he is interested.
Mr. Andrews asked how much could be approved without having to put it out for competitive bids. CEO Keene said she’d check but she thought it was $5,000.
Mr. Andrews also reported that he approached Maine Coast Heritage Trust and Friends of Acadia regarding the Town getting a grant from them to help fund the ordinance change. Both organizations thought it would be a good idea. Mr. Andrews said he would be willing to find out what they would need and whom they would need it from in order to obtain a grant. Both organizations indicated that they would very much like to see one of the towns on the island go forward with this and to have other towns follow suit.
Cell Tower Appeal
Chairman Brawley asked about the appeal on the cell tower -- who had filed and under what grounds. CEO Keene reported that there are two appeals coming before the ZBOA on August 23; one from Mr. Fuerst and the other from Deborah Reed and Diane & Doug Miller, represented by Lynn Williams. Mr. Fuerst’s appeal is based on errors made in the approval of the permit under 6A.1 Compatibility and 6A.9 Preserving the Town’s Character. The Reed/Miller appeal is based on the grounds that the Planning Board violated the Land Use Zoning Ordinance Town under Sections 1.4(3), 5.3(1)(2), 6B.17.8(g), 6B.17.8(k), and 6B.17.8(m) .
Mr. Andrews thought the Board should consider altering the language in Section 6.9 of the LUZO (Town Character) because it is so absolute and limiting that it is grounds for appeal for most anything; all alterations change the character. He further stated that the courts tend not to uphold appeals based on Preserving the Town’s Character because it is such a vague standard.
Approving Permits for the Owners vs. Property
The Board began a discussion regarding the whether approved permits should go with the land owner vs. the property.
In Mr. Andrews opinion, any permit approved for a restaurant should be given to the operator and not to the property. The Town has been burned in the past by permits of operation being transferred when property is sold. CEO Keene reported that up to 2002 the permits were given with the choice on the application for the Board members to determine. It was removed because it was assumed that the permit went with the land. Board members agreed that it was a good idea to put it back into the approval process.
Planning Board Candidates
Board members discussed possible candidates to fill the vacancy left on the board by Jerry Miller’s sudden resignation. A number of candidates were identified. It was agreed that board members would approach the individuals to see if they would be willing to fill the vacancy.
The Board was unable to approve minutes with the members present due to lack of a quorum for any of the meetings needing the minutes approved. The Board discussed having the ability to approve minutes without a quorum present. It was determined by a memo sent to the Town Clerk regarding a similar situation for the Board of Selectmen that written approval from Board members not in attendance could be read into the record and counted as a vote to approve.
A new procedure for the approval of minutes in absentia was identified.
- When a Board member will be unavailable for a meeting, that member will email or mail written notice of his/her approval of the minutes with comments on corrections or changes to the Chairman and a cc to the Recording Secretary.
- The Chairman will read the comments into the record and then a vote to approve will be taken, including the absentia vote.
V. A MOTION TO ADJOURN WAS MADE BY Mr. Andrews; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (3-0)
Meeting adjourned at 7:31 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, August 8, 2011 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Claire Woolfolk, Recording Secretary
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