Town of Mount Desert Planning Board Meeting Minutes
Town Hall Meeting Room, Northeast Harbor
August 25, 2011
The meeting was re-opened at 5:09pm, August 25, 2011 by Chairman Brawley to consider CUA # 020-2011.
Public Present
Tom Wheatley, Jim Black, Sally Black, Tim Brochu, Jim Billings, Terry Sears, Margot Grace, Agnes Peelle, Cynthia Stroud, Weston Milliken, Nancy K. Ho, Steedman Bass, David Garrett, Sylvia Garrett, Karen Dube, William Smith, Phoebe Milliken, Gerrish Milliken, Margot S. Bass, Barbara Danielson, Katrina Carter, Mike Olson
Board Members Present
Sandy Andrews; Ellen Brawley, Chair; James Clunan, Vice Chairman; Patti Reilly, Secretary and Robert Ho; Alt.
James W.J. Collier, Esq., Kim Keene, CEO; Claire Woolfolk, Recording Secretary
Voting members for this hearing are to be Sandy Andrews, Ellen Brawley, James Clunan, and Patti Reilly. Mr. Ho will participate in the discussion but not in the vote.
Discussion cont’d. from August 22, 2011
The next course of action was discussed. One option given was to reverse the motion to find the application complete. Another was to review the application as it stands. Mr. Billings stated earlier that they did not want to withdraw the application. Ms. Reilly said there were some inherent problems such as the design being too long as well as some other information they wanted to see. Mr. Andrews asked if it is the Board’s job to review the application and tell applicants how to make it complete.
Mr. Collier, said when a completeness review is done, you are cutting off what is in and when it is in. The completeness review makes it official that minimum needs are met to begin the review. After the application is found complete, the board has sweeping discretion to ask for additional information to provide justification for the application. The applicant can then either provide the additional information or decide that they don’t want to submit the information, and then the board will decide the application based on the information provided.
Chairman Brawley asked if part of their job is to make sure the applicant followed State law. Mr. Collier clarified that it is not the Board’s job to determine if the applicant got the State permit under incorrect information; that is between the State and the applicant.
Mr. Andrews brought up dimensional requirements -- if the application doesn’t meet them, then the Board should deny the application. These are the minimum requirements. The Board must use its discretion when it determines if the structure fits in the neighborhood. Mr. Billings said it meets the standard and that he would like the Board to go forward.
Chairman Brawley asked how many other neighbors on the cove have conservation covenants restricting the building along the cove. The members of the public answered that there were four. The Basses do not have a covenant, but they follow the spirit of the covenant.
Mr. Billings asked to submit an aerial photo of the area. A CES photo entitled Existing Area Docks showing the existing docks via green dots and the red dot representing the applicant’s proposed dock. (Entered as Exhibit 1, applicant) Mr. Brochu looked at the map to make comments as to the accuracy of the site of the proposed dock.
Mr. Collier said the board must make sure that all evidence has been submitted by both sides before they could begin deliberations on the checklist and asked if Mr. Wheatley had any objections to Mr. Billings submitting more exhibits. Mr. Collier stated that in order to avoid future appeals, it was imperative that both sides have the opportunity to submit new evidence and that each of them have time to look at it and respond.
Mr. Billings proposed that the board set a timeline to move forward with the application. He said it would be easy to adjust the size of the dock at this point and come back to hear the application. Mr. Collier agreed that Mr. Billings is correct in part for requesting that timelines for responses to the Planning Board’s requests be given.
Mr. Collier acknowledged that there appeared to be a disagreement as to the interpretation of the dimensions allowed in the LUZO that were discussed between Mr. Brochu and CEO Keene. The temporary structures (ramp & float) do not count as part of the pier. The dispute is where the marine structure begins; the application assumes measurements begin at the high-water mark. Mr. Billings said that the reason Mr. Brochu spoke with CEO Keene is because the Town’s ordinance is unclear in how to measure the structure. Ms. Reilly said an engineering firm should know how to design and measure a dock. Mr. Andrews said the ordinance is clear that the measurement applies simply to the length of the structure (reference LUZO pg. 6-29) and that it doesn’t mention high water line as a basis for beginning
the measurement; rather it states the “maximum length of the structure” and that the Board has never used the high water line as a reference point to begin measurements.
Mr. Collier stated that the Board could proceed with the review of other matters if they could be isolated from the issue of the exact location of the pier, that is, if the length/location of the pier is the only item of dispute. This would give time to get accurate drawings in from the applicant.
Mr. Billings said he is not arguing with the board about the size of the pier when he can make changes to the size. He thinks it would be unfair for the Board to deny the application based on the size when the applicant is willing to make a change.
Mr. Collier asked Mr. Wheatley if he would mind considering a small amendment to the size so that the application could proceed. Mr. Wheatley stated that he would like to be fair; their objection is with the pier itself and that it is out of place in the area, not with it being a couple of feet shorter. He said that the application as submitted does not comply with the ordinance. Mr. Wheatley suggested that Mr. Billings withdraw the application and resubmit.
Ms. Bass said the issue of length is not de minimis. There is a rocky ledge at the end of the floating dock that would make bringing a boat in to the site quite hazardous. She asked if the dock would be functional if it were shorter. Mr. Collier said the Board would certainly take into consideration the functionality of the dock during their review. In this instance shortening the dock doesn’t hurt her case, it only helps it.
Mr. Bass used an example that when he files taxes he is responsible for the form even if the tax preparer makes a mistake. Therefore, the applicant blaming the town for their submission of incorrect drawings isn’t an appropriate defense. Mr. Bass suggested that the board talk about everything else except the length. Mr. Collier disagreed; the dimensional requirements are such a fundamental point of the application and that they are crucial. The Board should have an agreement that the length will be amended prior to proceeding.
Mr. Collier also suggested that these arguments were unnecessary. He again asked if Mr. Wheatley would not object to a minor small amendment to the size so that they could avoid arguing in court over a misinterpretation of the CEO’s discussion with Mr. Brochu. Further, if Mr. Wheatley would agree to allow the applicant to amend the length of the pier, then the Board could proceed with their review of the application.
Mr. Wheatley didn’t think it was his position to agree or not. He thought it is the Board’s position to determine whether or not to proceed.
Mr. Clunan asked Mr. Andrews if he didn’t think the Board had enough information to look at the other standards. Mr. Andrews felt that the points of where the application is lacking information are other points of substance. He said that the Board should have good information so that they could properly review the application and avoid an appeal and possibly on to court. Ms. Reilly suggested that on future applications and engineering drawings that the applicant put high-water and low water marks.
Mr. Collier suggested that unless Mr. Wheatley agreed to the small amendment, the Board would have to deny the application based on the dimensional requirements and then the applicant would have to wait nine (9) months to resubmit. The alternative is for the applicant to withdraw the application and resubmit sooner rather than waiting the nine months.
Mr. Billings suggested that the applicant may want to withdraw the application and resubmit, based on the concerns raised this evening. He asked that the Board confirm that his client could withdraw and resubmit without prejudice (waiting nine months).
The Board agreed to confirm this as the case and said they would take a recess while they reviewed the procedures.
A MOTION TO RECESS MADE BY Mr. Andrews; SECONDED by Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (4-0)
The meeting was reconvened at 6:20pm by Chairman Brawley.
Ms. Milliken asked to address the Board. While it was out of order, Mr. Billings had no objection. Ms. Milliken said she is a neighbor and thinks it is wonderful how the area of Gilpatrick Ledge and Sargent Point is so clear and free of docks. She further stated that it would be a wonderful thing to hold on to. She remembers that Mrs. McCormick’s dock (the one Roger Milliken had) was the last dock removed because it was rotting. It was removed in approximately 1960-61. The area has been dock free for about 50 years.
Mr. Wheatley said that he would agree to allow a small amendment to be made in the application on the length of the dock so that the Board could proceed with the review.
Mr. Collier announced that the applicant asked the Board to allow him to withdraw the application for consideration without prejudice. Mr. Billings would like to resubmit the application and address some of the issues brought up by the Board as well as amend the dimensions. Mr. Collier agreed with this decision so that the Board could procedurally go through the standards and that the review would be based on good information. He said it is better have an appeal on the decision rather than administrative procedure.
The Board agreed that they would like a fresh start on this application.
Mr. Bass asked Mr. Collier if the neighbors have to go through this entire process all over again because of the withdrawal, and is it fair to the neighbors who have gone to great expense and interrupted their vacations to be present. He furthered that it was unfair for the applicant to “test the water” and see what the objections are, withdraw, and resubmit to avoid the objections.
Ms. Bass put on record in regards to fairness that the applicant had plenty of time to get their information in for the review and that the neighbors had only since August 10th to prepare for their opposition.
Mr. Billings stated that he has no objection to the opposition’s original objections being re-used or the submission of any objections that are already on record from this application.
The Board discussed their option to allow the application to be withdrawn. Mr. Andrews thought that withdrawal is the best option so that the Board could review a complete application to make a good decision. He cannot conceive of any way that the opponents won’t have to invest a lot of time and energy unless they decide they don’t care enough to do so.
A question arose that if the application is resubmitted, does the applicant have to get a new permit from the DEP. Ms. Reilly also asked if the Town would be notified if the applicant was applying to the DEP. Mr. Collier said that is between the applicant and the DEP; it has no bearing on the application before the Board. However, he thought if there were substantive changes made that they would have to resubmit to the DEP. Ms. Reilly suggested that the neighbors invite the ME Inland Fisheries & Wildlife, Shorebird Biologist and Waterfowl Biologist, and DEP to make a site visit because the people approving these permits are basing their decisions on a broad set of data. They do not know what occurs in certain places and if there are significant things in smaller areas. CEO Keene said she would receive
a copy of the application from the DEP if a new application were introduced.
Ms. Reilly requested Mr. Brochu put all the tide levels on the drawings. He said they were on the current drawings, but that he would make the markings more clear. Ms. Brawley asked that the relationship of the ledge to the low-water mark be clearly indicated as well.
A MOTION TO ACCEPT THE WITHDRAWAL OF THE APPLICATION WITHOUT PREJUDICE WAS MADE BY MR. Andrews; SECONDED by MR. Clunan.
A VOTE WAS CALLED AND THE MOTION TO ACCEPT THE WITHDRAWAL CARRIED UNANIMOUSLY. (4-0)
Ms. Reilly thought it was wonderful that all the neighbors were getting together to protect the cove.
Mr. Bass asked for an explicit list for what the board wanted to see in the application. The Board said that there is an explicit list on the application form. Mr. Collier encouraged Mr. Billings and Mr. Wheatley to cooperate and exchange information so that all parties know what is being submitted.
Some of the items to be submitted so that the Board can do a fair and accurate review would be:
1) buoys to show the tide levels,
2) poles to represent the height of the pier,
3) plans with contour lines,
4) larger view of the larger area,
5) who uses the cove and where the channels are,
6) the views from the neighbor’s property with a dock superimposed on a current photo of the view,
7) aerial views from someone like Mr. Longsworth,
8) environmental impact assessment on area species of plant and animals from MDIFW with site visit,
9) opinion of eel grass from Dr. Jane Disney, and
10) site visit at low tide
Mr. Clunan asked what would be the earliest date to place the application back on the agenda. The CEO reviewed the meeting dates and deadline dates for submissions. It was agreed that the applicant would work it out with the CEO at a later time.
III. Other Business
No other business was discussed.
IV. Approval of Minutes
The draft minutes from the June 27, July 6, July 25, and August 22, 2011 meetings were unanimously approved.
A MOTION TO APPROVE THE MINUTES FROM THE June 27, 2011 MEETING AS AMENDED WAS MADE BY MR. Ho; SECONDED by MR. Andrews.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (3-0)
A MOTION TO APPROVE THE MINUTES FROM THE July 6, 2011 MEETING AS WRITTEN WAS MADE BY MS. Brawley; SECONDED by MR. Ho.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (2-0) Miller concur via email.
A MOTION TO APPROVE THE MINUTES FROM THE August 22, 2011 MEETING AS AMENDED WAS MADE BY Mr. Clunan; SECONDED by MS. Reilly.
Chairman Brawley wanted it on record that Mr. Clunan stated that the work Claire Woolfolk, Recording Secretary, did to get the minutes out from August 22, 2011 so quickly was above and beyond. It was also agreed that the minutes were well done by other Board members.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY. (4-0)
V. A MOTION TO ADJOURN WAS MADE BY Mr. Andrews; SECONDED BY Mr. Ho.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (5-0)
Meeting adjourned at 7:18 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, September 12, 2011 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Patti Reilly, Secretary
| 
