Planning Board Meeting Minutes
March 24, 2008
Town Hall Meeting Room, Northeast Harbor, ME
Public Present
Robert Falt; James Collier, Town Attorney
Board Members Present
James Clunan, Chairman; James R. Bright, Vice Chairman; Schofield (Sandy) Andrews III; Joe Tracy; Gerard M. Miller, alt; Patti Reilly, Secretary
Danielle Goodwin, Recording Secretary
I. The meeting was called to order at 6:03 p.m.
II. The draft minutes from the January 28, 2008 and March 10, 2008 Planning Board Meetings and the January 7, 2008, January 17, 2008, January 24, 2008, Planning Board Workshops were postponed.
IV. Public Hearings
Conditional Use Permit
A. Conditional Use Permit # 003-2008
NAME: Robert L. Falt
LOCATION: 5 Forest Lane, Northeast Harbor
TAX MAP: 024 LOT: 020 ZONE: VC
PURPOSE: Section 5.7 - An Amendment to a Conditional Use Permit. Expand existing Services 3 (Carpentry Shop) and Single Family Dwelling.
SITE INSPECTION: 4:00PM
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. Bright and Mr. Andrews. Mr. Miller reported that the 2 story addition would extend about 24 feet back on the flat lot. The lot is abutted by Mr. Falt's brother, Maple Lane Apartments and the Renaults, has more than adequate setbacks and Mr. Miller did not see any problems.
Chairman Clunan reported that CEO, Kim Keene was unable to attend but did tell him earlier on the phone that she had no comment regarding Mr. Falt's application.
MOTION TO APPROVE MADE BY Mr. Tracy; SECONDED BY Mr. Bright.
Mr. Bright confirmed that there were no prior conditions set on the original CUP.
Chairman Clunan noted that there had been no public correspondence, nor was anyone present to comment.
The Standards of Section 5.7 of the LUZO, as amended March 6, 2007, were reviewed as follows:
5.7 An amendment to a Conditional Use Permit may be issued by the Planning Board only:
1. in conformity with the procedural and substantive requirements set forth in Sections 3 and 6;
The Board finds the application is in conformity with Section 5.7.1. (5/0)
2. on finding that there have been significant changes of conditions or circumstances; and
The Board Finds that the proposed amendment does entail a significant change to the circumstances and is therefore in conformance with Section 5.7.1. (5/0)
3. when justified by a statement of findings of fact and reasons.
The Board finds that the applicant Robert Falt as referenced above, intends to expand and enlarge his single family dwelling and carpentry services currently provided and therefore is in conformance with Section 5.7.3. (5/0)
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (5/0).
II. Workshop
Review and discuss procedural "Checklist" provided by James W. J. Collier, Esq.,
Law Offices of Chadbourn H. Smith, P.A.
Mr. Collier began by explaining the need for more formalized Findings of Fact and Conclusions of Law to increase efficiency and avoid appeals. He suggested making even small notes on all sections every time. Mr. Collier explained that the purpose of minutes was to give the public a summary of what happened; minutes should follow the agenda and be very simple only noting substantial items, motions, seconds, etc. and 1-2 sentences regarding the discussion and the outcome. His opinion was that verbatim minutes were ridiculous, inefficient and invited legal confusion. As Chairman Clunan summarized, having a solid, more thorough checklist would give the Board what they need for records and allow for briefer minutes.
Mr. Collier then led the Board in review of the checklist.
He began with the page that he added out of necessity for the basic findings of fact which were previously overlooked. This would be page number 13 and could usually be filled out in advance by the CEO. Mr. Collier also pointed out that the discussion was irrelevant unless added into the findings of fact; ultimately the answer is yes or no. He further stated that the Chairman should never motion but should ask for a motion, to which a member of the Board would reply "so moved"; "2nd" and so forth. Also any findings made after the main motion must be treated as sub-motions to be lawful.
Mr. Collier then evaluated the CUP review process. He pointed out that CUP's were generally exceptions to the rule but seemed to be the norm in Mt. Desert and suggested a list of special exceptions. Chairman Clunan explained that we did have such a list in the new LUZO standards to be voted on at Town Meeting in May. Mr. Andrew inquired as to the blank spaces after the Conclusions of Law which Mr. Collier explained were for clarification if a conclusion was more complex. He pointed out that the assumption is always denial and the burden falls on the applicant to prove that they meet the criteria for an exception. Mr. Collier also gave examples and explained the difference between Findings of Fact and Conclusions of Law in accordance with the MMA Manual for the Board. Findings of Fact should be very specific and simply stated such as the
basic information on page 13 of the checklist. Where as, Conclusions of Law are statements that analyze and link the specific findings of fact to the specific criteria of the ordinance to be met. Arguments and discussion could be reflected in the Conclusions of Law.
Mr. Andrews and Mr. Tracy brought up the difficulty of fact finding on visual impact for legal purposes. Mr. Collier explained that it is different because you rely on some testimony. However, our Town does have a Comprehensive Plan which pretty clearly outlines the typical character of the Town along with Section 6.9 of the LUZO which should make it fairly simple to set the character for comparison. Therefore, as long as the findings of fact support the decision and tie into the ordinance it could hold up in court.
Mr. Collier further pointed out that granting a CUP was a way of negotiating to allow an application that would otherwise have to be denied. He commented on the planting and maintenance plans that the Town has been requiring and the State of Maine and Town of Southwest Harbor have been doing the same.
Mr. Bright asked how the checklist might change when the new LUZO is passed and suggested adding each standard. Mr. Collier agreed and stated that he would have to look at it again.
In conclusion, Mr. Collier advised to Board that it's much easier to let the facts drive the argument rather than discussion and prejudices. He also reiterated that all applications are presumed denied until proven otherwise, which is the burden of the applicant.
III. The draft minutes from the January 28, 2008 and March 10, 2008 Planning Board Meetings; January 7, 2008, January 17, 2008, January 24, 2008, Planning Board Workshops were unanimously approved as amended.
IV. Other
Chairman Clunan appointed Mrs. Reilly to review the workshop minutes for 2009 goals of the Planning Board.
For the April 14, 2008 meeting the Board will review the Subdivision Ordinance information provided by the consultants, Mr. Rothe and Mr. Arendt and discuss further work to be done with the consultants.
Chairman Clunan also briefly reviewed his addition to the annual report; it would consist of the update he had already drafted for the BOS with honorable mention of the work being done with Mr. Rothe and the Lighting consultants.
V. Meeting adjourned at 8:35 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, April 14, 2008 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Patti Reilly, Secretary
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