Town of Mount Desert Planning Board Meeting
Minutes of September 14, 2009
Public Present
Sam Fox, Jim Wilmerding & Anne Funderburk
Board Members Present
James Clunan, Ellen Brawley, Joseph Tracy, Jerry Miller, James Bright, Sandy Andrews
Kimberly Keene, CEO, Heidi Smallidge, Recording Secretary
I. Call to Order
The meeting was called to order at 6:05 p.m. by Mr. Bright.
II. Approval of Minutes: It was agreed to delay discussion till the end of the meeting.
III. Conditional Use Approval(s):
A. Conditional Use Approval Application # 013-2009
OWNER(S): Marsha M. & James W.W. Wilmerding
LOCATION: 4 Huntington Road, Northeast Harbor
TAX MAP: 24 LOT: 124 ZONE(S): VC/VR2
PURPOSE: Section 6B.8 – Fences and Walls – Exceeding CEO Authority
SITE INSPECTION: 4:30 PM
It was noted there was adequate public notice in the Bar Harbor Times. No Conflict of Interest was found.
Mr. Bright and Mr. Clunan attended the site inspection. Mr. Clunan described the area. The property was uphill from the motel. It was an area where a neighbor wants to put in a driveway to access a lot. The land slopes away from the Wilmerding residence towards the motel. Currently a six foot fence runs parallel to the property for approximately 50 feet. The applicant wants to place 200 feet of new fence of six to ten feet in height.
Ms. Brawley inquired whether the planned driveway would remove some of the trees currently at the fence site. Mr. Wilmerding noted all trees were expected to be removed. Mr. Tracy asked whether plans had been taken into consideration for posting the fence appropriately against the winds. Mr. Wilmerding affirmed they had. Mr. Wilmerding asked whether this new application, if approved, would cover replacing the 56 feet of fence already in place once replaced by the newly proposed fence. Ms. Keene stated it would.
There were no comments from the CEO or from the public.
Ms. Keene noted there was no right of way from the proposed driveway, only from Huntington Road. The proposed fence will be an acceptable distance from it. Mr. Clunan inquired about the removal of any vegetative screening and Mr. Wilmerding assured him that no vegetation would be removed from his side of the fence. Mr. Wilmerding added that should some trees and vegetation be left he would not put up more fencing than necessary to ensure his privacy.
Mr. Tracy moved, with Ms. Brawley seconding, to approve the application.
Ms. Keene noted there was one letter from Mr. Fernald. There was no further comment from the public.
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): Fence will be up to ten feet high and 200 feet long.
(5-0)
Visual Impact:
Findings of Fact(s): Fence runs perpendicular to Huntington Road.
(5-0)
Proximity to other structures:
Findings of Fact(s): Fence will be greater than 15 feet from any structure.
(5-0)
Density of Development:
Findings of Fact(s): N/A
(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,
(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
(5-0)
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.
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 sp; (5-0)
Conclusion of Law: The proposed use will / will not cause unreasonable congestion on highways or public roads, or unsafe conditions with respect to the use of highways or public roads existing or proposed.
Sufficient off-street parking shall be available:
Findings of Fact(s):
Conclusion of Law: Sufficient off-street parking will / will not 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 __________ will / will not unduly burden the capacity of the Town's facilities. [In particular, an undue burden will be placed upon]
N/A
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): N/A
(5-0)
Conclusion of Law: Proposed land use of will / will not 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.
6A. 6 Lighting - Outdoor
X N/A plicable, Standard Not Met
Dust; X N/A ;
Conclusion of Law:
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): There are other tall stockade fences in the neighborhood.
(5-0)
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,
(5-0)
6A. 9 Stormwater
X N/A ;
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): No vegetation is being cleared by the
applicant.
(5-0)
Conclusion of Law: Fence will be in compliance.
(5-0)
6B SPECIFIC PERFORMANCE STANDARDS FOR ACTIVITIES AND LAND USES
All of 6B with the exception of 6B.8 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 cable, Standard Met nbsp;
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 pt;color:#000000;">Conclusion of Law:
6B. 8 Fences and walls
vel shall require Conditional Use Approval of the Planning Board. The Planning Board may issue guidelines to insure compliance with state laws.
X N/A p;
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 ;
6B. 11 Lots X N/A
1. Lots abutting more than one road …
X N/A ; Manufactured Homes Manufactured homes, or housing, as defined in Section 8, which are structures to be used for residential occupancy and which have a pitched shingle roof, a permanent foundation or masonry slab, piers or walls, and exterior siding of clapboard, cedar shingles, wooden or vinyl material that is residential in appearance are permitted.
X N/A ot 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 plicant may request additional square footage of floats provided a demonstrated need can be shown.
X N/A p;
10. There shall be no more than one marine structure on a lot.
X N/A left;">nbsp;
6B.17 Sign Regulations …
3. Signs Permitted: Temporary Signs:
X N/A "+0" color="#000000" style="font-family:Arial;font-size:9pt;color:#000000;">X N/A sp;
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 #000000;">FOR BOARD USE
CONDITIONAL USE PERMIT/APPROVAL
PERMIT CONDITIONS: In addition to all applicable federal, state, and town permits be in place prior to any construction, the following conditions apply:
Motion was approved 5-0.
IV. Workshop:
Ms. Keene updated the group on her preparation for the Public Hearing. After talking with the Town Manager about scheduling the hearing for October 13, the Town Manager suggested holding it a bit earlier in case the public requested changes. In light of that possibility Ms. Keene set the Public Hearing for both ordinances for October 7, leaving October 13 a date available for meeting over revisions if necessary. She added the October 13 meeting would be at the Northeast Harbor Library. She reminded the Board the Special Town Meeting was November 16.
Ms. Keene reported she’d sent the ordinance to the DEP for final approval. Unless the DEP had changes, she anticipated only minor details left to change.
A discussion of towers began. Ms. Keene distributed to the Board a revised tower ordinance reflecting the changes made at the last meeting. Ms. Keene added that she’d followed up with Ms. Krieg on two questions the Board had.
The Board had asked why the Town of Bar Harbor had settled on the mass of antennas per user at 1900 square feet per array. Ms. Krieg did not know why they had settled on that figure.
The Board had wanted to know why Bar Harbor did not permit towers near structures on a lot. Ms. Krieg noted it was due to concerns over the tower falling and the possibility of limiting users.
A review of the Bar Harbor tower ordinance was resumed from where it had been left off at the last meeting. Ms. Brawley noted the subheading letters should be changed to numbers to properly reflect the outline format of the ordinance. It was also agreed to bold section headings to more clearly read the ordinance.
Ms. Keene reminded the Board that Ms. Brawley had passed out revised wording for Section 7, Co-location requirements. She requested feedback on Ms. Brawley’s suggestion.
Ms. Brawley’s suggested wording was as follows:
“Applicants for Conditional Use Approval for a new communications tower must send written notice by first-class United States Mail to all other owners of communications towers in the Town and all licensed communications providers utilizing existing towers, regardless of tower location, to service the town, stating their siting needs and/or co-location capabilities in an effort to meet the town co-location requirement.”
After some discussion it was agreed to use the suggested revision, adding “certified” before “first-class”.
Section 8, Submissions: Mr. Miller questioned whether simply trusting the word of a service provider’s engineer with regard to any installation question or proof of quality was a wise thing to do. Mr. Bright stated the Town had the right to hire their own engineers at the cost of the service provider if needed. Mr. Andrews suggested a checklist was required.
Section 8, D – Submissions: Mr. Andrews noted the sentence needed to be reworded. It was agreed to replace “provide” with “shall be provided”.
Section 8, F - Submissions: Ms. Brawley noted there was no definition for designated scenic resources. Mr. Bright suggested omitting “designated”. Mr. Andrews suggested “scenic resources as determined by the Planning Board”. He added that numbering the items would make the sentence clearer. The resulting wording was:
“A narrative and demonstration detailing 1 – the extent to which the proposed facility would be visible from a scenic resource as determined by the Planning Board and Acadia National Park, 2 – the tree line elevation of vegetation within 300 feet and 3 – the distance to the proposed facility from the scenic resources noted viewpoints.”
Mr. Miller suggested adding “as determined by the Planning Board” after “Acadia National Park”, but Ms. Brawley felt it wasn’t necessary as this wasn’t approving veto power to the park. The words “as determined” were agreed to be left out, as were the words “noted viewpoints”.
Section 8, G – Submissions: Mr. Tracy felt the entire section could be deleted as it was repetitive. Mr. Miller suggested that photos were not necessarily portraying a truthful image. Ms. Keene stated that the Town would have the authority to revoke a permit and tell a company to remove a tower that didn’t match the promised visual image.
Mr. Miller felt the entire section left the Board with too much to decide and noted he’d like to have the authority to reject a proposal that wasn’t good. Mr. Andrews suggested adding to the beginning of Section 8 “The following requirements must meet Planning Board standards.” Mr. Bright inquired what those standards were. After some discussion the wording was revised to read “…following submissions in a form acceptable to the Planning Board shall be required unless waived by the Planning Board. “ Mr. Clunan was still not happy with the wording. It was suggested to continue on and revisit this section after finishing the rest of the document.
Section 8, H – Submissions: Ms. Brawley felt the second sentence was confusing. Mr. Miller suggested removing the word “site” from the beginning of the first sentence.
Section 8, J – Submissions: Mr. Andrews suggested “identification of” rather than “identify”.
Section 9, Design Standards: The words “site plan review” were deleted.
Section 9, F – Design Standards: Mr. Tracy felt this section was redundant. It was agreed to remove section F.
Section 9, I – Design Standards: Mr. Andrews suggested wording should state outdoor lighting meets Town standards. It was agreed to use “shall meet 6A.6 standards of the LUZO unless otherwise required by the FCC or FAA.”
Section 10 – Location: it was agreed a colon was needed after “location” and commas after “high visibility” and “Planning Board”. Ms. Brawley wondered whether the fact towers can’t exceed the height of vegetation should be included. After lengthy discussion, the following was agreed on for Section 10, A:
“The height of a communications tower that is located within the viewshed of a scenic vista, scenic landscape, or scenic road, as determined by the Planning Board, may be, at the discretion of the Planning Board, subject to height limitation. Such limitation may restrict the height of the tower such that it does not exceed the height of vegetation within 300 feet of the proposed location.”
Mr. Clunan noted this would mean the Board would have to determine the scenic areas for every application.
Section 10, C – Location: Mr. Clunan inquired about the shoreland district. Would this be restricted to the 250 feet of State mandated shoreland zone, or extend to what the Town considers shoreland zone. Discussion of how the shoreland zone was seen and would be defined in the ordinance ensued. Mr. Miller reminded the group that the Planning Board would have the ability to reject a tower based on viewshed issues, and Mr. Tracy mentioned a tower shouldn’t create watershed problems. Mr. Andrews and Ms. Brawley suggested taking the shoreland definition from the ordinance and inserting it into this section.
Section 10, D – Location: After some discussion it was agreed to remove section D.
Section 11 – Standards: It was agreed to remove reference to §125-67, and “site plan review”.
Section 11, D – Standards: Mr. Bright suggested ending the section after “visually sensitive areas”.
Section 11, G – Standards: Ms. Keene inquired how the Board felt about the section on Adequate Bonding. After some discussion, it was agreed to reword the section: “Adequate bonding for removal of communications facility in a form and amount acceptable to the Town Manager has been submitted.”
Section 12 – Amendments: It was agreed to remove the reference to site plan.
Section 13, B – Removal of Communications Facilities: Mr. Bright suggested removing reference to guy anchors.
Section 13, C – Removal of Communications Facilities: It was agreed to remove reference to Bar Harbor processes. The words “Finance Director” were changed to “Town Manager”.
Section 13, E – Removal of Communications Facilities: The words “Finance Director” were changed to “Town Manager”.
Section 14, C - Inspections and Monitoring: Reference to Subsection T was removed.
Section 14, E – Inspections and Monitoring: “in accordance with§125-65D of the Land Use Ordinance” was removed.
Ms. Keene reminded the Board that they had wanted to revisit Section 8G. The Board agreed to leave as it was for now.
V. Adjournment
Mr. Tracy moved, with Mr. Andrews seconding to adjourn. Motion approved 5-0. The meeting was adjourned at 8:25pm.
Respectfully Submitted,
Heidi Smallidge, Recording Secretary
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