Board Members Present Public Present
Schofield (Sandy) Andrews III Gary Neville Approved 2/12/2007
James R. Bright, Vice Chairman Elaine Neville
James Clunan, Chairman Stephen R. Salsbury
Gerard M. Miller, alt
Joseph Tracy
Patti Reilly, Secretary
Kim Keene, CEO; Joelle D. Nolan & Margaret Porter, Recording Secretaries
I. The meeting was called to order at 6:04 p.m.
II. The draft minutes from the December 11, 2006 meeting were unanimously approved as amended.
III. Public Hearings – Conditional Use Permits
A. Conditional Use Permit
NAME: Lawrence Landess/ L.C.W. Investments Limited Partnership
AGENT: Elaine & Gary Neville/Permit Consultants
LOCATION: # 1222 Route 102 Somesville, ME.
TAX MAP: 10 LOT: 191 ZONE: RW3
PURPOSE: To construct a 6 foot wide by 72 foot long wooden walkway and pier with a seasonal 3 foot by 50 foot ramp and 12 foot by 28 foot float and a connecting 4 foot by 21 foot access walkway.
SITE INSPECTION: 2:15 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
The Site Inspection was attended by Mr. Bright, Mr. Andrews, Mr. Tracy and Chairman Clunan and reported by Mr. Bright. There was an established path and stairs as shown on the drawing. There is a short walkway over the ledges. Mr. Bright voiced concerns about erosion coming out from the white pine to the ledge Mr. Neville addressed concerns by explaining there will be limited digging and two pressure treated laminated timbers buried in the soil leading from the ledge. Mr. Andrews indicated that the cove is deep and will not interfere with boat traffic and is well hidden from general visibility. Chairman Clunan asks how far across the cove is it, at that point? A few hundred yards replied Mr. Andrews. Mrs. Reilly asked if there are any other probable alternatives for the pier? Mr. Neville replied not for recreational
boating. The intent is to use it more as a dinghy dock to access their mooring for their larger boat. Mr. Bright referenced DEP report and #6: Why wasn’t a mooring in Somesville Harbor at Somesville Landing pursued? He is concerned that complete information was not given to DEP. Mrs. Neville replied that at the time of application and in her discussion with Harbormaster Murphy, it wasn’t mentioned. Mr. Bright further explained that Somesville Landing is private and only available to Somesville residents; however, Harbormaster Murphy does control the moorings. He conceded it is not a violation of our ordinance; he just wants to be sure The State is fully aware of the facts. Mr. Andrews referenced in the States application, that 6 families will have use of the dock. Mrs. Neville replied yes, several families. The deed describes if another house is built, they will share the dock. Chairman Clunan asked if any of the abutters were
here. No, no one.
MOTION TO APPROVE MADE BY Mr. Tracy; SECONDED BY Mr. Andrews.
3.4.14. Marine Structure Performance Standards
Marine Structure Definition: Piers, docks, floats, wharves, bridges over ten (10) feet in length, and other marine structures extending over or beyond the normal high water line of a water body.
All marine structures shall require site plan approval by the Planning Board and compliance with the performance standards below before a Conditional Use Permit will be granted. The Planning Board may require the submission of an environmental impact assessment on natural areas and may require mitigation measures such as 1.) Changes in the design and/or location of the marine structure, and/or 2.) Changes in the magnitude of activities on the marine structure.
The performance standards are as follows:
Commercial and public marine structures are exempt from requirements 7 through 10.
1. Access from the shore to the marine structure shall be developed on soils appropriate for such use and measures shall be taken to minimize soil erosion both during and after construction. Whenever possible, access from the shore to the marine structure shall be placed on bedrock. The Planning Board may require consultation with the local Soil and Water Conservation District Office. The Board finds the proposed pier will be developed on soils appropriate for such use and Best Management Practices will 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. The Board finds that the location of the marine structure shall not reasonably interfere with existing marine structures or points of public access as
there is only one other marine structure in the cove and there are no points of public access.
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. The Board finds the marine structure is designed, sighted and
constructed to minimize any adverse impacts on wildlife habitats and 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. The Board finds that there will be no interference with the natural flow of any surface or subsurface waters during the construction of the marine structure.
5. The marine structure shall be designed, sited, and constructed so as not to encroach upon officially designated navigation channels. The Board finds that the proposed marine structure will not encroach upon navigation channels because there are none in the cove.
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. The Board finds that this section is not applicable as there are no officially designated mooring areas in the cove.
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. The Board finds that the proposed structure complies with the dimensional requirements described below.
Marine Structure Dimensional Requirement
Maximum 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
Maximum 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.
8. If two or more shorefront lot owners choose to share a communal marine structure the applicant may request additional square footage of floats. The Board finds that this section is not applicable because two or more shore front lot owners are not applying for communal marine structures
9. When proposed by the applicant, new subdivisions may provide a communal dock in lieu of the development of docks on individual lots. The applicant may request additional square footage of floats provided a demonstrated need can be shown. The Board finds that this section is not applicable because the applicant is not seeking a communal dock
10. There shall be no more than one marine structure on a lot. The Board finds that this application is in compliance as there will be not more than one marine structure
on the lot.
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 Gary and Elaine Neville, who together have more than 15 years of experience in representing clients in the Town of Mount Desert, so therefore the board finds that the application is in compliance with this section.
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 Statecertified soil scientist or geologist based on an onsite investigation. Within the shore land 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 onsite factors such as depth to water table and depth to refusal. The Board finds that the application is in compliance with these sub sections as it is to be located on suitable soils and can be maintained without causing adverse environmental impact
MOTION MADE AND SECONDED (Bright/Andrews), AND UNANIMOUSLY CARRIED (5-0) TO ACCEPT THE FINDINGS OF LUZO SECTION 6.1 AND 6.2.
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 is not applicable because no plumbing or sewage systems are involved. MOTION MADE AND SECONDED (ANDREWS, TRACY), AND UNANIMOUSLY CARRIED (5-0) TO ACCEPT THE FINDINGS OF LUZO SECTION 6.3.
6:45PM
Mr. Miller excused.
6.4 Erosion Control:
1. Filling, grading, lagooning, dredging, earthmoving 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. Nonconformance with the provisions of such Conservation Plan shall be considered to be a
violation of this ordinance. The Board finds that the application is in compliance with this section because such earth moving activities as there may be will be conducted in a manner to prevent erosion and sedimentation. The Board further finds the applications is in compliance because no sand or gravel is being removed from beaches. In addition there are no slopes greater than 25 feet involved, and there will be no tilling of soil in a conservation district. Mr. Bright expressed concerns about erosion from stringers being placed directly on the soil. It was decided that there was not enough run off to cause concern. MOTION MADE AND SECONDED (BRIGHT/ ANDREWS), AND UNANIMOUSLY CARRIED (5-0) TO ACCEPT THE FINDINGS OF LUZO SECTION 6.4
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 Shore land 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 high water mark of any water body. Slash shall be disposed of so that no part extends more than 4 feet above the ground.
4. Provisions of the State of Maine Shore land Zoning Act shall apply in the State Mandated Shore land 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 the application is in compliance with this section because there will be no clearing of trees, or removal of no more then 25% of trees, within 25 feet of any Town or State Road. There will be no accumulation of slash, no timber harvesting in the State mandated Shore land Zone, and that no CEO permit is required, and no cutting of timber larger than 4 inches diameter at breast height. MOTION MADE AND SECONDED (ANDREWS / TRACY), AND UNANIMOUSLY CARRIED (5-0) TO ACCEPT THE FINDINGS OF LUZO SECTION 6.5
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 will be compatible with permitted uses within the district in which it is located in terms of its physical size, visual impact proximity to other structures and density of development. MOTION MADE AND SECONDED (BRIGHT / CLUNAN), AND UNANIMOUSLY CARRIED (5-0) TO ACCEPT THE FINDINGS OF LUZO SECTION 6.6
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 shall not unduly burden the capacity of the Towns facilities. MOTION MADE AND SECONDED (BRIGHT / REILLY), AND UNANIMOUSLY CARRIED (5-0) TO ACCEPT THE
FINDINGS OF LUZO SECTION 6.7
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 provision concerning
highway safety is not applicable. MOTION MADE AND SECONDED (TRACY / ANDREWS), AND UNANIMOUSLY CARRIED (5-0) TO ACCEPT THE FINDINGS OF LUZO SECTION 6.8
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 consistent with protecting the general character of the Town concerning the natural beauty of the area. It shall not tend to change the historical or cultural character of the neighborhood, and that the use is similar to those specified as P, CEO, or C in section 3.5 and further is in accordance with the Comprehensive Plan. Mr. Andrews agrees with the findings, but if
every lot owner along that shore applied for and was approved for a dock, it would change the Towns character which then would be, negatively impacted. Mr. Tracy noted applicant has made structure much less than allowed. MOTION MADE AND SECONDED (BRIGHT / CLUNAN), AND UNANIMOUSLY CARRIED (5-0) TO ACCEPT THE FINDINGS OF LUZO SECTION 6.9
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 not be obnoxious or offensive by reason of odors, dust, smoke, gas, fumes, vibrations, noise or other objectionable features, nor for any use which would prove injurious to the safety and welfare of the neighborhood. MOTION MADE AND SECONDED (BRIGHT / CLUNAN), AND UNANIMOUSLY CARRIED (5-0) TO
ACCEPT THE FINDINGS OF LUZO SECTION 6.10
A VOTE WAS CALLED AND THE MOTION TO APPROVE THE APPLICATION CARRIED UNANIMOUSLY (5-0).
IV. New Business
A. Subdivision Sketch Plan Review
NAME: Arthur Palmer Trust; Stephen Salsbury, agent
SUBDIVISION NAME: Palmer Trust Subdivision
LOCATION: Gray Farm Road, Somesville
TAX MAP: 11 LOT: 69 ZONE: RW3
PURPOSE: Proposed 7 lot subdivisions with a minimum lot size of three acres.
Site Inspection: 4:15 PM
No conflict of interest was reported.
Site inspection was attended by Mr. Andrews and Chairman Clunan, and reported by Mr. Andrews. On the west side of Gray Farm Road, the land slopes upwards, from the road. There’s an old farm house on the southern side and another house on the northern lot. Moving westward the land slopes down to a farm pond. There is an old logging road that runs along one side of the pond across the dam, out into wooded land. Some of which has been cut, some of which is meadow, and some which is wet. Moving westward the lot is 3 times longer than it is wide. The land is rolling, rather then level. The road running past the pond is in a grassy area. There is a man made dam over a stream. On the low side of the dam, the stream is, maybe 15 or 20 feet below the top of the dam. The dam is 30 feet wide, at the top. The existing roadway is
14 feet wide. Chairman Clunan noted that the roadway shown on plan, shows the road out to a cul-de-sac, which does not exactly follow the road way that we walked. The new road will be to the North. Proposed roadway does cross one wetland area for a short distance. Mr. Bright asked what the dam was made from. Dam is earth filled, with a culvert, made from a 36 inch pipe, Mr. Salsbury replied. Proposed travel surface will be 22 feet shoulder to shoulder. Driveways for lots 4 and 5 will cross wetlands; however under threshold for DEP. Mrs. Reilly suggested an Engineering report indicating the structural stability of the dam. Mr. Salsbury noted that their Engineer will be at the next meeting.
Chairman Clunan asked Mr. Salsbury if he is aware of necessary requirements for subdivision application. Mr. Salsbury replied that he has already given the necessary application forms to CEO Keene, for review. Since this application will probably be heard after the 2007 Town Meeting it was suggested that Mr. Salsbury review the draft language for change to the Subdivision Ordinance.
V. Old Business
A. Discussion of applicants for alternate Planning Board member. Dave Irvin and Debra Andrews declined. No response from Celeste Law. Board requested that an ad be placed in BHT & Islander posted to Town web site.
B. Chairman Clunan attended last Warrant Committee meeting, and again resistance to the deletion of Note (d) LUZO Section 3.6 Dimensional Requirements for Districts. Also there was a discussion regarding cooking facilities; however the warrant committee voted to recommend.
IV. New Business, cont’d
A. CEO Keene reported Harbormaster Murphy is looking into expanding The NEH Marina. The existing floats measure 960 sq ft. Harbormaster Murphy would like to add 1040 sq ft more. However, they already exceed the allowable 800 sq ft for communal marine structures. CEO asks if The Town is exempt. Board disputed size and asked that Harbormaster Murphy submit drawings with measurements. Review of ordinance Section 3.4.14 and noted “commercial and public marine structures are exempt from the dimensional limit requirements as outlined in 7 through 10”
B. Mr. Andrews will be away February 12th, February 26th and March 26th meetings.
Comprehensive Plan by Wednesday January 24, 2007 there will be a complete draft for CPC to review. Hope to present it to the Boards in a few months, then it has to go to Augusta.
MOTION MADE, SECONDED (TRACY, BRIGHT) UNANIMOUSLY CARRIED (5,0).
VI. Meeting adjourned at 7:52 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, February 12,
2007 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Patti Reilly, Secretary
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