Town of Mount Desert Planning Board Meeting
Minutes of March 9, 2009
Public Present:
Richard L. Brickley, Jean-Paul Taillon, Peter Roy, Cliff Goodall, Kim Horton, Sam Shaw, Caro-Gray Bosca, Jenna Horton, Thomas Weverstad, Lura Brianna Caddle, John Klein, Millard Dority, Albert Hamor, Joe Renault, John Lawrence, Jim Black, Sally Black, Alan Joseph, Sandra Graves, Ruth Fraley, Beth White, Corey Pickett, Elizabeth Halpern, Cody Van Heerden, Christian Van Heerden, Story Litchfield, Katrina Carter, Chris Rawls, Chris Moore, Melissa Bonville, Benjamin C. Moore, Hancy K. Ho, Steve Demers
Board Members Present
James Bright, Patti Reilly, Joseph Tracy, Jerry Miller, Sandy Andrews, James Clunan
Kimberly Keene, CEO
Heidi Smallidge, Recording Secretary
I. Call to Order
The meeting was called to order at 6:09 p.m. by Mr. Bright.
II. Approval of Minutes from October 14, 2008 and February 9, 2009
Mr. Tracy moved, with Mr. Andrews seconding, to postpone the approval of the Minutes to the end of the meeting. Motion approved 5-0.
III. Conditional Use Approval Applications
It was noted that a request was made to postpone hearing Conditional Use Approval Application # 003-2009, owner Philip Geier , to March 23. The request was granted by general consensus of the Board.
A. Conditional Use Approval Application # 003-2009
OWNER(S): Kim P. Horton
LOCATION: 1 Old Firehouse Land, Northeast Harbor
TAX MAP: 24 LOT: 108-1 ZONE(S): VC
PURPOSE: 3.4 – Appeals Board Remand
SITE INSPECTION: 4:30 PM
It was noted that Patti Reilly would act as secretary. Mr. Bright clarified that Jerry Miller, as the alternate Planning Board Member, would not act in a voting capacity for this meeting.
No conflict of interest was reported. It was confirmed notice was published in the Bar Harbor Times.
The site inspection occurred at 4:30 pm, with Planning Board members Joseph Tracy, Sandy Andrews, James Bright, and Jerry Miller in attendance. Mr. Tracy noted that there currently was an uninsulated building where modifications were being made. The building borders residential areas and had parking on the North side. There is a backyard portion, covered in a vinyl tarp during the summer, the rest of the area was enclosed. Mr. Andrews added that there were at least four residential structures within 100 to 200 feet of the building and an inn within 100 yards of the building.
Mr. Bright opened discussion by the Board.
MOTION TO APPROVE MADE BY MR. CLUNAN; SECONDED BY MR. TRACY.
Ms. Keene noted that many emails had been forwarded to her. They were now part of the public record. Some emails supported the restaurant being open and some voiced concerns regarding noise and the way the restaurant is presently run.
Mr. Bright stated that the Board needed to approach this application with a clean slate and as if the application had not previously come before the Board. Mr. Tracy inquired as to how the Board would handle the current owners’ experiences with the restaurant occurring since the application had initially come before the Board. Ms. Keene answered that the Board needs to review the application as though it was just being submitted to them, using the 2006 ordinance to go by. In answer to questions put forth by Mr. Miller and Mr. Andrews regarding how to react to recent emails and recent findings regarding the restaurant, Ms. Keene noted they would have to check with an attorney for clarification as to whether these should have bearing on the application.
Mr. Bright suggested that had the abutters been properly notified the first time, the issues raised in the emails would have been brought up at that time. Ms. Reilly opined that the emailed comments should have validity to the question at hand.
Mr. Andrews asked if the new application as being heard in 2009, then shouldn’t the 2009 LUZO be used to hear it. Ms. Keene noted that when the application went to the Zoning Appeals Board it was ultimately remanded back to the Planning Board. At that time Ms. Horton had the option of resubmitting her original 2006 application using the 2006 LUZO, or create a new application for 2009. Ms. Horton chose the option using the 2006 LUZO.
Cliff Goodall, attorney for Ms. Horton, noted that abutting landowners, Mr. Brickley and Ms. Stanley were the abutters who had not received notice. Mr. Brickley and Ms. Stanley went to court and the application was remanded back to the Zoning Appeals Board, who then remanded the application to the Planning Board, specifically so Mr. Brickley and Ms. Stanley could have the chance to participate in the process. Because that original hearing was in 2006, the application is locked into 2006 and everything since then is relevant. However, only the two abutters, Mr. Brickley and Ms. Stanley, have the legal right to revisit this process. It was Mr. Goodall’s opinion that this hearing should allow only their participation. Upon further discussion, Mr. Goodall noted that Mr. Brickley and Ms. Stanley could ask others to
testify. Mr. Tracy inquired as to whether the letters could be accepted. Mr. Goodall agreed they could.
Mr. Goodall maintained that only the parties directly involved with the decision that remanded this issue back to the Planning Board could be heard or those testifying on their behalf. Mr. Roy, attorney to Mr. Brickley and Ms. Stanley, noted that it was his opinion that when the hearing was appealed it was made as though it had never happened; the application has been started anew, and everything that’s transpired since is all relevant. Essentially, they were back to square one.
Mr. Andrews stated he felt the Planning Board should wait till Town legal counsel was present before they went further on this application. It was his preference to have legal advice independent of the attorneys representing both parties involved in this application hearing.
Mr. Andrews moved, with Mr. Clunan seconding, to continue this hearing at a later date when a Town attorney could be present.
Mr. Bright questioned whether the town attorney could be called to this meeting in progress. Ms. Keene noted the Planning Board could call him, but he would have had no preparation for these questions. Mr. Bright announced a five minute recess while the Planning Board tried to reach the Town’s legal counsel.
Mr. Bright called the meeting back to order at 6:46 pm. He reminded the Board that there was a motion on the table. An attempt had been made to reach James Collier, legal counsel for Mount Desert, but it had been unsuccessful. Mr. Bright noted he felt the Board could work through the application; however he felt other Board members would not agree. The motion to continue the hearing at a later date when a Town attorney could be present was approved 5-0. Mr. Bright apologized to the public in attendance and noted that the Board wanted to make sure the process was completed correctly this time so the issue would not have to be revisited. The next scheduled meeting was March 23rd, and the application would be heard then, contingent on Mr. Collier’s availability.
C. Conditional Use Approval Application # 004-2009
OWNER(S): College of the Atlantic
AGENT: Millard Dority
LOCATION: 169 Beech Hill Road, Mount Desert
TAX MAP: 9 LOT: 43 ZONE(S): RW3/SR5
PURPOSE: 3.4 – Section – 3.4 – Public Utilities – Wind Turbine
SITE INSPECTION: 2:30 PM
It was noted that appropriate notice had been published in the Bar Harbor Times. It was agreed that Mr.Clunan’s occasional teaching at the College of the Atlantic was not a conflict of interest. Site inspection occurred at 2:30 pm. Mr. Bright and Mr. Andrews were in attendance. Mr. Andrews noted it was a proposed 39 foot tower 40 feet from the edge of the right of way. The house across the street was owned by College of the Atlantic, and the farm manager’s house was 152 feet away. The proposed structure would be highly visible.
Ms. Keene noted the height of the proposed structure with the blades extended to their highest was 39 feet, 11 inches. The height restriction was 40 feet. Ms. Keene requested the height be verified by an engineer. Ms. Keene mentioned receiving a phone call from a property owner three or four lots from the property. John Klein from the audience noted he had been that caller.
MOTION TO APPROVE MADE BY MR. TRACY; SECONDED BY MR. ANDREWS.
Mr. Andrews questioned why this was a new application instead of an amendment. Ms. Keene noted it was a new structure. The windmill would provide energy to the house, with surplus energy going to Bangor Hydro.
Mr. Bright cautioned Mr. Dority that a moratorium was being considered on towers, retroactive to February 9. If the Planning Board approved this application tonight and College of the Atlantic built their tower and the Town approves the moratorium at Town Meeting, the college will be required to take down the tower. Should the Town decide to ban such structures, the college could be required to remove it completely.
Mr. Dority understood the situation, and noted the college was willing to take that chance.
Mr. Tracy inquired as to what color the proposed turbine would be. Mr. Dority noted it was a single pole, gray, with white blades. The blades were fiberglass with Teflon or some similar type of coating.
Alan Joseph inquired how the Planning Board could give a permit two weeks prior to possibly setting a moratorium on this exact type of project. Wouldn’t such a permit be problematic?
Ms. Keene noted there is no moratorium in place at this time, and so the Planning Board cannot deny an application based on the possibility of a moratorium in the future. If the moratorium is put into place, then College of the Atlantic would have to remove their structure. COA is accepting that possibility when they choose to build despite the knowledge that a moratorium could be placed. It was noted that the wind turbine could not be grandfathered should the moratorium be put in place.
Mr. Dority also noted that the College of the Atlantic had no intention of leaving the structure standing if the Town dictates it needs to come down.
Mr. Klein voiced concern over the potential noise, and asked why it was being built so far from the other structures. Mr. Andrews noted the noise levels should be tested. Mr. Dority noted the manufacturer’s description noted the noise level at 40 decibels. Having it removed from other buildings increased the amount of wind levels and provided a better chance for constant winds. Mr. Dority added that the turbine would have underground wiring.
CHECKLIST
for review of the
Land Use Zoning Ordinance of the Town of Mount Desert
(03/06/78, as am. through 05/6/08)
** Note: All Conclusions of Law are to be read as if they are prefaced by the words “Based upon said Findings of Fact …”
SECTION 6 STANDARDS FOR USES, PERMITS AND APPROVALS
6A GENERAL PERFORMANCE STANDARDS
6A. 1 Compatibility The proposed use shall be compatible with the permitted uses within the district in which it is located as measured in terms of its:
Physical Size:
Findings of Fact(s): The proposed structure is within the height requirements of 40 feet as stated
In the LUZO. It will measure 39 feet, 11 inches.
(5-0)
Visual Impact:
Findings of Fact(s): The proposed structure will be constructed as a mono-pole unguyed
Structure, color white, pole gray. The proposed structure will be located __
within proximity of a ridge top. (5-0)
Proximity to other structures:
Findings of Fact(s): The proposed structure will be located 150 feet from a
farmhouse and 70 feet from a greenhouse and 100+ feet from 168 Beech Hill Road.
(5-0)
Density of Development:
Findings of Fact(s): The district is a rural, lightly developed area.
(5-0)
Conclusion of Law for s. 6A. 1 Compatibility: The proposed use will be compatible with the permitted uses within the district in which it is located as measured in terms of its physical size, visual impact, proximity to other structures, and density of development.
In particular, The proposed structure meets the height requirement of 40 feet as stated in the LUZO.
It will be 39 feet, 11 inches. The white and gray color will not cause undue impact to the
Area. (5-0)
6A. 2 Erosion Control
1. Filling, grading. Filling, grading … shall be conducted in such a manner to prevent, to the maximum extent possible, erosion and sedimentation.
Findings of Fact(s): N/A
Conclusion of Law: Filling, grading, etc. will / will not be conducted in such a manner to prevent, to the maximum extent possible, erosion and sedimentation.
N/A
2. Removal of sand or gravel. Removal of sand or gravel from natural beaches or the disruption or removal of buffer strips that protect fragile land areas immediately behind a shoreline and on neighboring properties is prohibited.
X N/A p;
Sufficient off-street parking shall be available:
Findings of Fact(s): N/A________________________________________________________
Conclusion of Law: Sufficient off-street parking will be available:
____________________
6A. 4 Impact on Town Services The proposed use shall not unduly burden the capacity of the Town's facilities, including public water and sewage, or the ability of the Town to provide essential public services (such as, but not limited to, schools, fire and police protection, refuse collection, and parking) to its residents and visitors.
Findings of Fact(s): N/A___________________________________________
________________________________________
(5-0)
Conclusion of Law: The proposed use of __Public Utilities_______________________________ will/will not unduly burden the capacity of the Town's facilities. [In particular, an undue burden will be placed upon]
6A. 5 Land Suitability All land uses shall be located on soils in or upon which the proposed uses or
structures can be established or maintained without causing adverse environmental impacts, including severe erosion, mass soil movement, and water pollution, whether during or after construction …
Findings of Fact(s): The proposed structure will sit on a concrete pad that will be ____
108 cubic feet; three feet below ground. Ground level is flat at this location.
(5-0)
Conclusion of Law: Proposed land use of a wind turbine will be located on soils so as to not causing adverse environmental impacts, including severe erosion, mass soil movement, and water pollution, whether during or after construction.
(5-0)
6A. 6 Lighting - Outdoor
X N/A ;">Odors; X N/A font-size:9pt;color:#000000;"> In sound pressure.
(5-0)
Conclusion of Law: The proposed structure will not cause undue nuisances as stated__
Above in Section 6A.7
(5-0)
6A. 8 Preserving the Town's Character The proposed use shall be consistent with protecting the general character of the Town, conserving the natural beauty of the area and shall not tend to change the historical or cultural character of the neighborhood. Such use shall be similar to a use specified as P, CEO or C in Section 3.4 and shall be in accord with the Comprehensive Plan.
Findings of Fact(s): The area where the structure is being proposed is agricultural
and of high scenic value. The proposed use meets the height requirement for the __ ____
District. (4-1)
Conclusion of Law: The proposed use will be consistent with protecting the general character of the Town, will be consistent with conserving the natural beauty of the area and will not tend to change the historical or cultural character of the neighborhood. Such use will be similar to a use specified as P, CEO or C in Section 3.4 and will be in accord with the Comprehensive Plan. In particular, windmills
have long been used in agricultural settings.
(5-0)
6A. 9 Stormwater
X N/A sp;
(5-0)
Conclusion of Law:
6A. 10 Vegetation
1. Clearing. Clearing of trees or conversion to other vegetation is allowed for permitted construction provided that:
1. Appropriate measures are taken, if necessary, to prevent erosion when activity is undertaken.
2. The activity is in conformity with State Mandated Shoreland Zoning.
2. Tree removal near town roads. Removal of more than 25% of the trees within 25 feet of any town or state road in any 12 month period shall require a Conditional Use Approval of the Planning Board.
3. Slash. No accumulation of slash shall be left within 50 feet of any town or state road or within 50 feet of the normal highwater mark of any waterbody. Slash shall be disposed of so that no part extends more than 4 feet above the ground.
4. Shoreland zoning. Provisions of the State of Maine Shoreland Zoning Act shall apply in the State Mandated Shoreland Zone for timber harvesting and clearing of vegetation, as per Title 38 MRSA § 439-A.5 and 439-A.6.
5. CEO Permit. A CEO Permit is required for cutting timber larger than 4 inches in diameter measured 4 ½ feet above ground when the total amount to be cut is greater than 10 cords but less than 50 cords in any one year period.
6. Conditional Use Approval. Conditional Use Approval is required from the Planning Board for cutting timber larger than 4 inches in diameter measured 4 ½ feet above ground when the total amount to be cut is 50 cords or more in any one year period.
Findings of Fact(s): N/A
(5-0)
Conclusion of Law:
6B SPECIFIC PERFORMANCE STANDARDS FOR ACTIVITIES AND LAND USES
All of the subsections under 6B are N/A.
(5-0)
6B. 1 Agriculture All spreading or disposal of manure shall be accomplished in conformance with the "Maine Guidelines for Manure and Manure Sludge Disposal on Land", published by the University of Maine and the Maine Soil and Water Conservation Commission, in July 1972.
X N/A sp;nbsp;
Conclusion of Law:
6B. 7 Excavation or filling Excavation or filling shall be permitted in any district only to the extent such activities are essential or are incidental to any permitted, conditional, or other lawful use. Filling, dumping, or excavation of any matter of fifty (50) cubic yards or greater within a twelve (12) month period shall require a Code Enforcement Officer permit provided that there are no slopes in excess of 4:1 and the activity is more than one hundred (100) feet from the normal high water line of a waterbody. Excavation and filling, greater than fifty (50) cubic yards in a twelve (12) month period, with slopes greater than 4:1 or within one hundred (100) feet from the high water line of a waterbody shall require a Conditional Use Approval of the Planning Board. Appropriate measures
shall be taken to prevent erosion during or after the filling or excavation. All fill permits are approved for a twelve (12) month period only and expire twelve (12) months from the date of approval. The Code Enforcement Officer may renew either the Code Enforcement Officer permit or the Conditional Use Approval for additional twelve (12) month periods.
X N/A p;
Conclusion of Law:
6B. 8 Fences and walls
X N/A , Standard Not Met
6B. 9 Fresh Water Related Structures
1. Access from shore shall be developed on soils appropriate for such use, and constructed so as to control erosion.
2. The location shall not interfere with existing uses.
3. The facility shall be located so as to minimize adverse effects on fisheries.
4. The facility shall be no larger in dimension than necessary to carry on the activity, and be consistent with existing conditions, uses, and character of the area.
5. Piers, docks, floats, wharves, breakwaters, causeways, marinas, bridges more than 20 feet in length, and permanent uses projecting into fresh water bodies from normal high water level shall require Conditional Use Approval of the Planning Board. The Planning Board may issue guidelines to insure compliance with state laws.
X N/A
Conclusion of Law:
6B. 10 Home occupations and home offices Home occupations and home offices (except those of a temporary or casual nature) shall require a permit from the Code Enforcement Officer to insure compliance with the following standards: …
X N/A Conclusion of Law:
6B. 11 Lots X N/A
1. Lots abutting more than one road …
X N/A -size:9pt;color:#000000;">X N/A sion both during and after construction …
Findings of Fact(s):
Conclusion of Law: Access from the shore to the marine structure will / will not be developed on soils appropriate for such use and measures will / will not be taken to minimize soil erosion both during and after construction.
2. The location of the marine structure shall not unreasonably interfere with access to existing marine structures or points of public access, nor shall it unreasonably interfere with the use of other marine structures and landing places.
Findings of Fact(s):
Conclusion of Law: The location of the marine structure will / will not unreasonably interfere with access to existing marine structures or points of public access, and it will / will not unreasonably interfere with the use of other marine structures and landing places.
3. The marine structure shall be designed, sited, and constructed to minimize adverse impacts on significant wildlife habitats or unique natural areas including, but not limited to: fin fish and shellfish fisheries, salt marshes, eel grass beds, shorebird and nesting habitats, critical fish spawning and nursery areas.
Findings of Fact(s):
Conclusion of Law: The marine structure will / will not be designed, sited, and constructed to minimize adverse impacts on significant wildlife habitats or unique natural areas.
4. Interference with the natural flow of any surface or subsurface waters shall be minimized during the construction and subsequent use of the marine structure.
Findings of Fact(s):
Conclusion of Law: Interference with the natural flow of any surface or subsurface waters will / will not be minimized during the construction and subsequent use of the marine structure.
______________________________________________________________________________
5. The marine structure shall be designed, sited, and constructed so as not to encroach upon officially designated navigation channels.
Findings of Fact(s):
Conclusion of Law: The marine structure is / is not designed, and will / will not be sited, and constructed so as not to encroach upon officially designated navigation channels.
_________________________________ _____________________________________________
6. The Planning Board shall request comment from the Harbor Master in cases where the applicant proposes to build a marine structure in an officially designated mooring area.
N/A X Applicable – comment requested
7. The marine structure shall comply with the dimensional limits listed below. The facility shall be no larger than necessary to accomplish the purposes for which it is designed. Its size and construction shall not change the intensity of the adjoining land use, and by no means shall exceed a total distance of more than one-third the width of the water body, when proposed for coastal or inland waters. Notwithstanding the dimensional limits below, in areas where the horizontal distance from the normal high water line to the mean lower low water is in excess of 160 feet, no permanent structure will be allowed seaward of the normal high water line.
Marine Structure Dimensional Requirement
Max. length of entire marine structure (i.e. pier, ramp and float combined) 225 feet 1
Maximum length of all permanent structures 150 feet
Maximum length of all non-permanent structures (i.e. ramp and float) 75 feet 2
Maximum width of pier walkway 6 feet
Maximum width of ramp 6 feet
Maximum square footage of floats 400 square feet
Max. square footage of floats for communal marine structures (see 8 and 9 below) 800 square feet
1 Or length needed to obtain six feet of depth of water at mean lower low water, whichever is less.
2 In cases where no permanent structure is proposed the applicant will be permitted to install a ramp and float extending no further than 75 feet into the water body.
Findings of Fact(s):
Conclusion of Law: The marine structural dimensional standards have / have not been met. The facility is designed for the purpose of . The facility will / will not be larger than necessary to accomplish the purposes for which it is designed. Its size and construction shall not change the intensity of the adjoining land use
8. If two or more shorefront lot owners choose to share a communal marine structure the applicant may request additional square footage of floats.
X N/A gn:left;">Conclusion of Law: The applicant has / has not demonstrated that a need exists for additional square footage of floats.
10. There shall be no more than one marine structure on a lot.
X N/A onal Vehicles No temporary or older mobile home, camper, trailer, or other recreational vehicle shall be used for human habitation unless it is in a campground or a trailer park which has been established in accord with provisions of this Ordinance …
X N/A nbsp;
2. State standards. All subsurface sewage disposal facilities shall be installed in conformance with the State of Maine Subsurface Wastewater Disposal Rules.
X N/A 000000;">3. Signs Permitted: Temporary Signs:
X N/A nbsp;
6B.18 Street/Road Design and Construction Roads shall hereafter be located, constructed, and maintained in such a manner that there is minimal potential for erosion. Adequate provision shall be made to prevent soil erosion and sedimentation of surface waters. Additionally, all roads constructed shall conform to the following standards …
X N/A bsp;
Conclusion of Law:
6B.19 Vehicles, Unregistered No more than two (2) unregistered and/or uninspected vehicles may be stored on any residential lot, unless said vehicles cannot be viewed from any public way.
X N/A tings:
October 14, 2008: Ms. Keene noted a number of changes to the October 14 Minutes:
“2009” should be changed to “2008” within the October 14 date throughout the document.
Page one, linie 30 “Musetti” had too many T’s.
Page 2, line 3 – “25’ of a Town road and/or wetland of significance of clearance”
Page 2, line 16 – remove “Ms.”
Page 2, Line 17 – “were big enough to qualify for that standard” should be removed from after “quarries”.
Line 53 – “plan” instead of “pan”
Line 53 – add an “s” to “household”
Page 3, line 8 – “Ms.” Instead of “Mr.” Musetti
Line 8 – capitalized “Road’
Line 38 – “from their attorneys”
Page 4, line 35 “the court found in favor”
Line 35 – leave off “she”
“an” was crossed off “location of driveway”
“rails” was misspelled
Mr. Clunan added on page 4, line 11 – “consolidate” rather than “collate”.
Line25 and 42 should read “CEO Keene”
February 9, 2009:
Impact on Town Services on line 25 “proposed use of subdivision will not unduly burden…” – not needed to be included.
Mr. Andrews requested the paragraph in Page 3, line 21 to read “per section 6 of the subdivision ordinance, for access via Old Echo Lake Rd. the board agreed to waive section 5.14 St. Construction Standards but to driveway standards as defined in section 6.B.6 of the LUZO. This waiver is based on 1) maintaining neighborhood aesthetics and 2) mitigating environmental damage that would occur from a wider road, particularly stormwater runoff damage.”
V. Other:
Ms. Keene mentioned to the Board that she got in touch with Mitch Rales regarding walking their property to view the construction. Ms. Keene requested the Board get in touch with her as to when they’d like to visit and she could arrange it. Mr. Bright suggested 4pm on March 23rd, but it was agreed that waiting till the ground was a little less snow covered was a good idea.
VII. Adjournment
Mr. Tracy moved, with Mr. Andrews seconding, to adjourn the meeting. Motion was approved 5-0. Meeting was adjourned at 8:39.
Respectfully Submitted,
Heidi Smallidge, Recording Secretary
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