Mount Desert, ME - Planning Board Meeting Minutes

Planning Board Meeting Minutes - 01/28/08

Town of Mount Desert Planning Board

Meeting Minutes

January 28, 2008

Town Hall Meeting Room, Northeast Harbor

Public Present

Thomas Wallace; Heath Higgins; Barbara L. Williams; Franklin Brown; Janice Tourangeau; Jay Brown; Heather Graves; Alan Graves; Gary Neville; Elaine Neville; Linda Jenson, Jay Robbins; Russ Lunt; Martha Lunt; Elaine Dunbar; Becky Buyers- Basso; John Kelly, Acadia National Park

Board Members Present

James Clunan, Chairman; Schofield (Sandy) Andrews III; Joseph Tracy; Gerard M. Miller, alt; Patti Reilly, Secretary

Kim Keene, CEO; Danielle Goodwin, Recording Secretary

I. The meeting was called to order at 6:00 p.m.

II. The draft minutes from the November 11, 2008 and December 11, 2008 meetings were postponed until after the Conditional Use Permits were heard.

III. Public Hearings

Conditional Use Permits

A. NAME: Richard Habermann

AGENT: Barbara Williams

LOCATION: 86 Manchester Road, Northeast Harbor

TAX MAP: 027 LOT: 008 ZONE: SR2

PURPOSE: Section 3.4.6- Excavation or filling more than 50 cubic yards within a

one year period.

SITE INSPECTION: 3:30 PM

No conflict of interest was reported. *The regular members present are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times.

Site Inspection was attended by Mr. Miller, Mr. Clunan and Mr. Andrews. Mr. Miller reported the proposal was basically for reinforcing an ocean seawall with rip-rap. The area is 48 feet overall but proposed to extend just past the high tide mark and will be refertilized and reforested after the work is done There are three trees that need to be removed but will be replaced with 34 to 48 small trees. The stone will be natural colored to blend with the current coastline.

Kim added that she had been down before the snowfall and it was self evident that the area needed some help with erosion as it was terrible.

MOTION TO APPROVE MADE BY Mr. Miller; SECONDED BY Mr. Tracy.

Mrs. Reilly pointed out that recently the Board had required a planting plan for a similar application. Mrs. Williams showed the Board the material she had regarding trees to be removed and the revegetation. Mrs. Williams also made a few corrections on the application: instead of 20 feet and a 2:1 slope. It would be 34 feet and a 1:1 Slope.

Mr. Tracy questioned the philosophy of replanting such areas and suggested using plants that would not grow too large and could therefore potentially upset and cause more erosion. Mrs. Williams explained that when they met with the neighborhood landscape architect he suggested the small trees which could be pruned annually to blend naturally with the surrounding land.

The Board decided to make the execution of the planting guide a condition. Chairman Clunan asked if there had been any correspondence or any public comment, which there was not.

The Standards of Section 6 of the LUZO, as amended March 7, 2006, were reviewed as follows:

6.1 Expert Testimony: The Planning Board or code enforcing officer(s) in deciding whether or not to issue a permit shall be governed by the standards set forth in this section. The Planning Board or code enforcing officer(s) may reasonably require an applicant for a permit to furnish at the applicant's expense expert testimony, including documentary material, to prove compliance with such standards. The Board has heard the testimony of agent, Barbara Williams as well as seen the plans she has submitted and finds that the application is in compliance with Section 6.1. (5/0)

6.2 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. Proposed uses requiring subsurface wastewater disposal, and commercial or industrial development and other similar intensive land uses, shall require a soils report, prepared by a State certified soil scientist or geologist based on an on site investigation. Within the shoreland zone, the persons qualified to prepare these reports shall be certified by the Department of Human Services. Suitability considerations shall be based primarily on criteria employed in the National Cooperative Soil Survey as modified by on site factors such as depth to water table and depth to refusal. The Board finds that as the purpose of this application is to prevent adverse environmental impacts including severe erosion and mass soil movement and water pollution whether during or after construction, this application is in compliance with Section 6.2. (5/0)

6.3 Sanitary Standards:

1. All plumbing systems within two hundred (200) feet of a public sewer shall be connected to public sewer where available in accordance with local, state, and federal laws and regulations. The Planning Board may waive this requirement if all other standards of Section 6 are met.

2. All subsurface sewage disposal facilities shall be installed in conformance with the State of Maine Subsurface Wastewater Disposal Rules and the following:

1. All subsurface sewage disposal systems shall be located in areas of suitable soil of at least one thousand (1,000) square feet in size (which is defined by State of Maine Wastewater Disposal Rules, 144A CMR 241, Tables 700.1 and 700.2).

2. The minimum setback for subsurface sewage disposal systems shall be no less than one hundred (100) horizontal feet from the normal high water mark of a water body. This requirement shall not be reduced by variance except for replacement systems.

3. Holding tanks for sanitary wastes will be permitted only when approved by the Plumbing Inspector, and only if arrangements have been made for periodic removal and disposal of wastes in accordance with all laws and the tank is constructed of impervious material. The Board finds that this Section 6.3 is not applicable to proposed use. (5/0)

6.4 Erosion Control:

1. Filling, grading, lagooning, dredging, earth moving activities, and other land use activities shall be conducted in such a manner to prevent, to the maximum extent possible, erosion and sedimentation.

2. 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.

3. On slopes greater than twenty-five (25) percent, there shall be no grading or filling within one hundred (100) feet of the normal high water mark, except to protect the shoreline and prevent erosion.

4. Where soil is tilled in a Conservation District, or where soil in excess of twenty thousand (20,000) square feet lying either wholly or partially within the area covered by this ordinance is tilled in a Rural or Woodland District, such tillage shall be carried out in conformance with the provisions of a Conservation Plan which meets the standards of the State Soil and Water Conservation Commission, and is approved by the appropriate Soil and Water Conservation District. The number of the plan shall be filed with the Planning Board. Non conformance with the provisions of such Conservation Plan shall be considered to be a violation of this ordinance. The Board finds that the pertinent parts of this section 6.4.1 and 6.4.3 will to the maximum extent possible be conducted in compliance with Section 6.4 and to address and prevent erosion. (5/0)

6.5 Vegetation:

1. 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. 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 Permit from the Planning Board.

3. 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. 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. A CEO Permit is required for cutting timber larger than 4" DBH when the total amount to be cut is greater than 10 cords but less than 50 cords in any one year period.

6. A CUP is required from the Planning Board for cutting timber larger than 4 inches DBH when the total amount to be cut is 50 cords or more in any one year period. The Board finds that appropriate measures will be taken to prevent erosion when the 5 trees are cleared and to comply with the remainder of Section 6. (5/0)

6.6 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, visual impact, proximity to other structures, and density of development. The Board finds that the proposed activities will be compatible as stated above and therefore is in accordance with Section 6.6. (5/0)

6.7 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. The Board finds that the proposed activity shall not unduly burden the Town's facilities as stated above and is in compliance with Section 6.7. (5/0)

6.8 Highway Safety: The proposed use shall 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. The Board finds that the use when established will not cause unreasonable congestion and therefore is not applicable to this Section 6.8. (5/0)

6.9 Preserving the Town's Character: 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 3.5 and shall be in accord with the Comprehensive Plan. The Board finds that proposed use shall be consistent with Section 6.9 as stated above and therefore is in compliance with this Section 6.9. (5/0)

6.10 Nuisances: Notwithstanding any other standard in this section, the Planning Board shall not issue any conditional use permit for any proposed use which if established would be obnoxious or offensive by reason of odors, dust, smoke, gas, fumes, vibration, noise, or other objectionable features, nor for any use which would prove injurious to the safety and welfare of the neighborhood. The Board finds the proposed use when constructed will be in compliance with Section 6.10 as stated above. (5/0)

A VOTE WAS CALLED AND THE MOTION TO APPROVE the application with a condition requiring the execution of the planting plan shown in attachments 6A through 6C will be done to specifications CARRIED UNANIMOUSLY (5/0).

B. NAME: Edward L. Higgins

AGENT: Heath E. Higgins

LOCATION: Off S & H Lane/ Rte 198

TAX MAP: 008 LOT: 097 ZONE: RW3

PURPOSE: Section 3.4.6- Excavation or filling more than 50 cubic yards within a

one year period in a wetland.

SITE INSPECTION: 3:00 PM

After brief discussion prompted by Chairman Clunan, as he lives near by and uses the road occasionally, the Board reported no conflict of interest. *The regular members present are the voting members for this hearing. It was confirmed the notice was published in The Bar Harbor Times.

Site Inspection was attended by Mr. Andrews, Mr. Miller and Mr. Clunan. Mr. Andrews reported that it was a small triangular lot off Route 198 and S & H Lane, with a culvert at the bottom of the hill where the triangle comes to a point. Water comes in from Acadia National Park on the uphill side of S & H Lane and flows out under route 198 and eventually to Somes Sound. The lot is quite wet, currently covered with marsh grasses and cattails and visible from Route 198 in either direction.

Mr. Tracy asked what the reason for filling was. Mr. Higgins responded that there are future plans to build a storage shed or garage and the fill is to lay the ground work. Mr. Andrews pointed out that it is a grandfathered non-conforming lot.

Mrs. Reilly confirmed that it did appear to be a wetland and may provide flood storage that could cause other problems if filled. Therefore, she would rather wait until the Board is able to view it in season of a regular year. Mr. Andrews explained their plans to accommodate and redirect drainage through culverts and ditches. Mrs. Reilly further stated that she did have a call from a concerned neighbor who had done extensive work to dry out her basement for renting several years ago. In that process the excess drainage was redirected into the wetland area and therefore she was concerned that filling that area would cause her basement to flood again. Mr. Higgins replied that they did consider where the water would be held and have taken a year in planning the process and redirection of the water to be respectful of the neighbor and wildlife. In fact, he believed their plan to direct all water to the culverts will only improve the current drainage situation. Mr. Andrews suggested a condition requiring an engineer. However, as Mr. Higgins pointed out they had done many wetland projects using the better building practices and much time and consideration had already gone into the engineering to be respectful of the neighbors. Mr. Higgins was also working with the state to ensure the work was done in a manner that would not hurt the wildlife in the area and was therefore on a time constraint of beginning this winter by April 1st. Otherwise, it would have to be put off until next year. He assured the Board that there would be no adverse affect to the neighbor due to this project as they would be taking precautions to properly redirect the drainage. Therefore, any water holding problems the neighbor may encounter would be due to the fact that they are located at the bottom of a two hundred foot hill not due to the work Mr. Higgins may be doing.

Although this application was for fill only, Chairman Clunan suggested a "No Left Turn" sign for future developments as it is a safety issue on a blind corner. After brief discussion of road frontage, it was determined that the lot was non-conforming and exempt from the normal provisions. Chairman Clunan expressed concern regarding setbacks for a stream sketched out by John Cullen. CEO, Mrs. Keene explained that it was not on the USGS map and therefore did not meet the Town's definition of a stream. Mr. Higgins clarified that the stream is not on the map, he had spoken with Mr. Cullen about it and he required only a 45 ft setback from the ditch as his major concern was the 75 ft setback from the main stream which the smaller one runs into. Mr. Andrews again suggested a condition regarding the execution of revegetation plans for the lot. Chairman Clunan then opened for public comment.

Elaine Dunbar lives in the house at the bottom of the hill and voiced her concerns regarding the possible flooding of the basement she which she had redesigned in 1997-1998 to drain into that wetland so she could rent out the basement. Chairman Clunan noted the provisions Mr. Higgins stated that he would be taking to allow water flow and redirect the drainage. The methods used would not cause any additional wetness on her property. After further discussion Chairman Clunan suggested Mrs. Dunbar and Mr. Higgins speak directly and try to reach an agreement. Mr. Wallace stated that he didn't see how it was Mr. Higgins' responsibility to tailor his development to accommodate her drainage onto his land. Mr. Higgins reiterated that he believed his work would actually improve overall drainage and not cause any excess water flow on her land. Although, he can't guarantee no water problems, as he doesn't have control over water coming down the other side, he assures Mrs. Dunbar and the Board that he is doing everything within his power to improve overall drainage and divert water flow from her property.

John Kelly for Acadia National Park, abutting on the East side of the property, voiced similar drainage concerns. He was interested in speaking with Mr. Higgins regarding their plans, implementation and assurance of minimal impact on drainage, traffic, etc. Mr. Tracy also pointed out that the Board does enforce Best Management Practices which would be applied here.

MOTION TO APPROVE MADE BY Mr. Miller; SECONDED BY Mr. Clunan.

The Standards of Section 6 of the LUZO, as amended March 7, 2006, were reviewed as follows:

6.1 Expert Testimony: The Planning Board or code enforcing officer(s) in deciding whether or not to issue a permit shall be governed by the standards set forth in this section. The Planning Board or code enforcing officer(s) may reasonably require an applicant for a permit to furnish at the applicant's expense expert testimony, including documentary material, to prove compliance with such standards. The Board finds that they have heard the testimony of the applicant and CEO and the application is in compliance with Section 6.1. (4/1)

6.2 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. Proposed uses requiring subsurface wastewater disposal, and commercial or industrial development and other similar intensive land uses, shall require a soils report, prepared by a State certified soil scientist or geologist based on an on site investigation. Within the shoreland zone, the persons qualified to prepare these reports shall be certified by the Department of Human Services. Suitability considerations shall be based primarily on criteria employed in the National Cooperative Soil Survey as modified by on site factors such as depth to water table and depth to refusal. The Board finds the proposed use shall be located in soils where it complies with all stated above. (5/0)

6.3 Sanitary Standards:

2. All subsurface sewage disposal facilities shall be installed in conformance with the State of Maine Subsurface Wastewater Disposal Rules and the following:

6.4 Erosion Control:

4. Where soil is tilled in a Conservation District, or where soil in excess of twenty thousand (20,000) square feet lying either wholly or partially within the area covered by this ordinance is tilled in a Rural or Woodland District, such tillage shall be carried out in conformance with the provisions of a Conservation Plan which meets the standards of the State Soil and Water Conservation Commission, and is approved by the appropriate Soil and Water Conservation District. The number of the plan shall be filed with the Planning Board. Non conformance with the provisions of such Conservation Plan shall be considered to be a violation of this ordinance. The Board finds that proposed actions for this use will be in compliance with Section 6.4.1 and that the remainders of Section 6.4 are not applicable. (5/0)

6.5 Vegetation:

1. 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. 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 Permit from the Planning Board.

5. A CEO Permit is required for cutting timber larger than 4" DBH when the total amount to be cut is greater than 10 cords but less than 50 cords in any one year period.

6. A CUP is required from the Planning Board for cutting timber larger than 4 inches DBH when the total amount to be cut is 50 cords or more in any one year period. The Board finds that the proposed use is in compliance with this section as stated above and the written condition of this permit. (5/0)

6.6 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, visual impact, proximity to other structures, and density of development. The Board finds that the proposed use is in conformance with Sect 6.6 as stated above. (5/0)

6.7 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. The Board finds this subsection is not applicable to the proposed use. (5/0)

6.8 Highway Safety: The proposed use shall 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. The Board finds that the proposed use complies with Section 6.8 as stated above. (5/0)

6.9 Preserving the Town's Character: 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 3.5 and shall be in accord with the Comprehensive Plan. The Board finds the proposed use is in compliance with Section 6.9 and comprehensive plan as stated above. (5/0)

6.10 Nuisances: Notwithstanding any other standard in this section, the Planning Board shall not issue any conditional use permit for any proposed use which if established would be obnoxious or offensive by reason of odors, dust, smoke, gas, fumes, vibration, noise, or other objectionable features, nor for any use which would prove injurious to the safety and welfare of the neighborhood. The Board finds the proposed use when established will be in compliance with Section 6.10 as stated above. (5/0)

A VOTE WAS CALLED AND THE MOTION TO APPROVE PASSED (4/1).

C. NAME: Jay Franklin Brown

AGENT: Thomas W. Wallace

LOCATION: Millbrook Rd

TAX MAP: 025 LOT: 057-002 ZONE: VC

PURPOSE: Section 3.5 - Constructing a single family residence and garage in a

commercial zone.

SITE INSPECTION: 3:50 PM

Mr. Andrews is employed by the applicant's mother and therefore recused himself to avoid the appearance of any impropriety. *The regular members present are the voting members for this hearing. It was confirmed the notice was published in the Bar Harbor Times.

Site Inspection was attended and reported by Mr. Miller. It is a non-conforming site in a commercial area that would like to become residential. The lot is triangular with an L-shaped hook going up by his parent's property and is otherwise surrounded by similar residences.

Chairman Clunan stated that there were letters in the packets of the Board members from abutters stating that they have no objections. Kim then explained correspondence between the Maine Municipal Association's lawyer and herself. The deed has always shown two lots. However, somehow (without request) they were merged and therefore did not meet minimum requirements to build a new residence. Because the Town ordinance does not require that two non-conforming lots in the same ownership to be merged, she asked MMA if the lots could be separated again. MMA responded that they could be restored to two separate lots as long as it was done to the exact specifications as the original deed.

There were no comments from the Board or Public.

MOTION TO APPROVE MADE BY Mr. Tracy; SECONDED BY Mr. Miller.

The Standards of Section 6 of the LUZO, as amended March 7, 2006, were reviewed as follows:

6.1 Expert Testimony: The Planning Board or code enforcing officer(s) in deciding whether or not to issue a permit shall be governed by the standards set forth in this section. The Planning Board or code enforcing officer(s) may reasonably require an applicant for a permit to furnish at the applicant's expense expert testimony, including documentary material, to prove compliance with such standards. The Board fInds that the CEO and Maine Municipal Association have provided expert testimony and therefore the application is in conformance with Section 6.1. (4/0)

6.2 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. Proposed uses requiring subsurface wastewater disposal, and commercial or industrial development and other similar intensive land uses, shall require a soils report, prepared by a State certified soil scientist or geologist based on an on site investigation. Within the shoreland zone, the persons qualified to prepare these reports shall be certified by the Department of Human Services. Suitability considerations shall be based primarily on criteria employed in the National Cooperative Soil Survey as modified by on site factors such as depth to water table and depth to refusal. The Board finds that Section 6.2 is not applicable to the proposed use. (4/0)

6.3 Sanitary Standards:

2. All subsurface sewage disposal facilities shall be installed in conformance with the State of Maine Subsurface Wastewater Disposal Rules and the following:

3. Holding tanks for sanitary wastes will be permitted only when approved by the Plumbing Inspector, and only if arrangements have been made for periodic removal and disposal of wastes in accordance with all laws and the tank is constructed of impervious material. The Board finds that Section 6.3 is not applicable to the proposed use. (4/0)

6.4 Erosion Control:

4. Where soil is tilled in a Conservation District, or where soil in excess of twenty thousand (20,000) square feet lying either wholly or partially within the area covered by this ordinance is tilled in a Rural or Woodland District, such tillage shall be carried out in conformance with the provisions of a Conservation Plan which meets the standards of the State Soil and Water Conservation Commission, and is approved by the appropriate Soil and Water Conservation District. The number of the plan shall be filed with the Planning Board. Non conformance with the provisions of such Conservation Plan shall be considered to be a violation of this ordinance. The Board finds that Section 6.4 is not applicable to the proposed use. (4/0)

6.5 Vegetation:

1. 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. 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 Permit from the Planning Board.

5. A CEO Permit is required for cutting timber larger than 4" DBH when the total amount to be cut is greater than 10 cords but less than 50 cords in any one year period.

6. A CUP is required from the Planning Board for cutting timber larger than 4 inches DBH when the total amount to be cut is 50 cords or more in any one year period. The Board finds that Section 6.5 is not applicable to the proposed use. (4/0)

6.6 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, visual impact, proximity to other structures, and density of development. The Board finds the proposed use is in compliance with section 6.6 as stated above. (4/0)

6.7 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. The Board finds that the proposed use is in compliance with Section 6.7 as stated above. (4/0)

6.8 Highway Safety: The proposed use shall 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. The Board finds that the proposed use is in compliance with Section 6.8 as stated above. (4/0)

6.9 Preserving the Town's Character: 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 3.5 and shall be in accord with the Comprehensive Plan. The Board finds that the proposed use is in compliance with Section 6.9 as stated above. (4/0)

6.10 Nuisances: Notwithstanding any other standard in this section, the Planning Board shall not issue any conditional use permit for any proposed use which if established would be obnoxious or offensive by reason of odors, dust, smoke, gas, fumes, vibration, noise, or other objectionable features, nor for any use which would prove injurious to the safety and welfare of the neighborhood. The Board finds that the proposed use when established is in compliance with Section 6.10 as stated above. (4/0)

A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (4/0).

D. NAME: Christine H. Alfaro

AGENT: Gary & Elaine Neville- Permit Consultants

LOCATION: 88 Sargent Drive

TAX MAP: 5 LOT: 56 ZONE: SR2

PURPOSE: Section 3.4.6 - Excavation or filling greater than 50 cubic yards in a

12-month period with slopes greater than 4:1 or within 100 feet from the High Water Mark of a waterbody. (Continuation)

No conflict of interest was reported. *The regular members present are the voting members for this hearing. It was confirmed the public notice was not required nor was a site inspection as this was a continuation of an application from the fall.

There was no correspondence or public comment.

The only request when the application was originally looked at was a vegetation plan. Gary Neville explained that the Keith Kroger, L.A. developed a planting plan for the rip-rap. The three types of plants that were chosen are listed on the top of the plan along with the minimum quantity. White clover would be used as a ground cover for short-term erosion control. Mr. Andrews agreed that sounded "wonderful" and suggested approval with the condition of the execution of the planting plan.

MOTION TO APPROVE with a condition for the execution of the submitted planting plan in the addendum MADE BY Mr. Andrews; SECONDED BY Mr. Clunan.

The Standards of Section 6 of the LUZO, as amended March 7, 2006, were reviewed as follows:

6.1 Expert Testimony: The Planning Board or code enforcing officer(s) in deciding whether or not to issue a permit shall be governed by the standards set forth in this section. The Planning Board or code enforcing officer(s) may reasonably require an applicant for a permit to furnish at the applicant's expense expert testimony, including documentary material, to prove compliance with such standards. The Board finds that the expert testimony from David Little of the DEP and Keith Kroger, L.A. and applicants agent will comply with Section 6.1. (5/0)

6.2 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. Proposed uses requiring subsurface wastewater disposal, and commercial or industrial development and other similar intensive land uses, shall require a soils report, prepared by a State certified soil scientist or geologist based on an on site investigation. Within the shoreland zone, the persons qualified to prepare these reports shall be certified by the Department of Human Services. Suitability considerations shall be based primarily on criteria employed in the National Cooperative Soil Survey as modified by on site factors such as depth to water table and depth to refusal. The Board finds the proposed use will be in compliance with Section 6.2 as their purposes are to repair and prevent erosion. (5/0)

6.3 Sanitary Standards:

2. All subsurface sewage disposal facilities shall be installed in conformance with the State of Maine Subsurface Wastewater Disposal Rules and the following:

3. Holding tanks for sanitary wastes will be permitted only when approved by the Plumbing Inspector, and only if arrangements have been made for periodic removal and disposal of wastes in accordance with all laws and the tank is constructed of impervious material. The Board finds that Section 6.3 is not applicable for the proposed use. (5/0)

6.4 Erosion Control:

4. Where soil is tilled in a Conservation District, or where soil in excess of twenty thousand (20,000) square feet lying either wholly or partially within the area covered by this ordinance is tilled in a Rural or Woodland District, such tillage shall be carried out in conformance with the provisions of a Conservation Plan which meets the standards of the State Soil and Water Conservation Commission, and is approved by the appropriate Soil and Water Conservation District. The number of the plan shall be filed with the Planning Board. Non conformance with the provisions of such Conservation Plan shall be considered to be a violation of this ordinance. The Board finds the proposed use is in compliance with Section 6.4 as stated above. (5/0)

6.5 Vegetation:

1. 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. 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 Permit from the Planning Board.

5. A CEO Permit is required for cutting timber larger than 4" DBH when the total amount to be cut is greater than 10 cords but less than 50 cords in any one year period.

6. A CUP is required from the Planning Board for cutting timber larger than 4 inches DBH when the total amount to be cut is 50 cords or more in any one year period. The Board finds that the proposed use is in compliance with Section 6.5 with planting conditions and as stated above. (5/0)

6.6 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, visual impact, proximity to other structures, and density of development. The Board finds the proposed use is in compliance with Section 6.6 as stated above. (5/0)

6.7 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. The Board finds that Section 6.7 is not applicable for the proposed use. (5/0)

6.8 Highway Safety: The proposed use shall 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. The Board finds that the proposed use is in compliance with Section 6.8 as stated above. (5/0)

6.9 Preserving the Town's Character: 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 3.5 and shall be in accord with the Comprehensive Plan. The Board finds that the proposed use is in compliance with Section 6.9 as stated above. (5/0)

6.10 Nuisances: Notwithstanding any other standard in this section, the Planning Board shall not issue any conditional use permit for any proposed use which if established would be obnoxious or offensive by reason of odors, dust, smoke, gas, fumes, vibration, noise, or other objectionable features, nor for any use which would prove injurious to the safety and welfare of the neighborhood. The Board finds that the proposed use when established will be in compliance with Section 6.10 as stated above. (5/0)

A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (5/0).

IV. Old Business

Chairman Clunan asked if Mrs. Keene had heard from David Smith regarding cleaning up the lot. Mr. Tracy suggested sending Mr. Smith a registered letter inquiring as to his plan for completing the septic system and correcting the current violation(s).

V. New Business

Chairman Clunan mentioned that he had spoke with Jerry Suminsby who is planning to submit the Draft Comprehensive Plan for Town vote in May and invited him to join Planning Board Meeting for Board and public input on February 11, 2008. However, it was too late for a public hearing notice therefore, the Board decided to try to hold a joint public hearing with the Comprehensive Plan Committee on the Draft Comprehensive Plan on February 25th, 2008 at 6pm. Mrs. Keene would notify Mr. Suminsby and work out dates and adequate public notice.

VI. The draft minutes from the November 11, 2008 and December 10, 2008 meetings were unanimously approved as amended.

VII. Meeting adjourned at 8:25 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Tuesday, February 11, 2008 in the Meeting Room, Town Hall, Northeast Harbor.

Respectfully submitted,

Patti Reilly, Secretary