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Planning Board Meeting Minutes - 07/23/07
Town of Mount Desert
Planning Board Minutes
July 23, 2007


Board Members Present                   Public Present
James R. Bright                         See attached list
James Clunan, Chairman
Joseph Tracy
Patti Reilly, Secretary

Kim Keene, CEO; Margaret K. Porter, Recording Secretary

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

II.     The draft minutes from the previous meetings were moved till the end of the agenda.

III.    Public Hearings - Conditional Use Permits

        A. Subdivision Application(s)

Public Hearing

NAME:  Estate of Elwin Hodgdon; Evelyn Wehfritz, P/R
        AGENT:  Tom Benson, T.W. Benson Land Surveying, Inc.
LOCATION:  Indian Point Road, Pretty Marsh
TAX MAP:  11 LOT:  94 ZONE:  RW2/RW3
PURPOSE:  9 Lot Subdivision
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 Chairman James Clunan and CEO Kim Keene. And reported by Chairman Clunan. What we found was a piece of property located in Pretty Marsh. It is land locked and it lies behind the Brendon Woods Subdivision and it abuts Acadia National Park and a number of private land owners. To access this site it is over a right of way provided by an easement. The land slopes gradually up to the East and there are a number of places that are wetlands. Mr. Benson, the applicant's representative has shown us where the proposed road would be and where it crosses the wetlands.  The only changes that Chairman Clunan has noticed since the previous site inspection is that the cul-de-sac has moved to the west and a bite to the south of the original location which we looked at a year ago. Mr. Benson tells us that it is because of the storm water permit from DEP and the rain.  

No conflict of interest reported.

Does the CEO have any comments asks Chairman Clunan. "No", CEO Keene replies.

Chairman Clunan now asks if there are any questions for Mr. Benson from the Board members.  Mrs. Reilly asks about the cul-de-sac. By moving it, does it increase any wetland activity? "No" replies Mr. Benson. There are none there.

MOTION TO APPROVE Mr. Tracy: SECONDED BY Mr. Bright

No correspondence from the Public was reported.

This is the time that the Public can ask questions and make comments, says Chairman Clunan.
.
The Standards of Section 6 of the LUZO, as amended March 6, 2007 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 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 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 on site factors such as depth to water table and depth to refusal.  The Board finds the proposed use is in compliance with 6.2. (4/0)

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 the proposed use is in compliance with Section 6.3. (4/0)

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 the proposed use in compliance with Section 6.4.1, 6.4.2, 6.4.3 and 6.4.4 not applicable. (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 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 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 the application is in conformance with 6.5. (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 application is in compliance with 6.6. (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 the application is in compliance with 6.7. (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 the application is in compliance with 6.8. (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 the application is in compliance with 6.9. (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 the application is in compliance with 6.10. (4/0)

After Mrs. Wehfritz struck no Animal Husbandry from the subdivision covenance, and initialed the plans the Board called for a motion.

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

OTHER BUSINESS
A letter from Sandra Graves to the Planning Board, concerning "Bassa".

Chairman Clunan asks the Board members if they have all read the letter from Mrs. Graves. "Yes" they all reply. Chairman Clunan asks Mrs. Graves to explain her concerns. She explains about the noise that she is hearing and she also has a tape recording of some of the noises, including music that she hears nightly. (The Board listens to several minutes of the recording) She also explains that she has called the police several times as she was instructed to do. Chairman Clunan refers to the minutes from the October 10th 2006 Planning Board meeting that explained the conditions on how the permit was given to "Bassa". Mr. Tracy replies that there was only one condition made, "The last seating for the outdoor patio section of the restaurant will be at 8:30 pm". Further Mr. Tracy reads from the minutes, Mr. Bright asks "will music will be piped in to the patio area?" JP says "No, not at this time". It is The Boards understanding that there will be no live or piped in music on the backyard patio. It was stated that if there was a noise complaint it will be referred to the police, because there is no Noise Ordinance. It would most likely be looked at as a disturbance of the peace. Chairman Clunan believes that they should look at section #7 of the LUZO. It concerns the duties of the CEO. CEO Keene replies that she has no Noise Ordinance to follow. We have a condition permit that states no new seating after 8:30pm. Chairman Clunan reads Section 7.2. of the LUZO out loud. He then reads part of 7.6. Chairman Clunan asks The Board if they believe that there is cause for an investigation into this situation. Mr. Tracy says that it was a split Board, three for two against. Mr. Tracy also goes on to explain that he feels that The Board also didn't want this to become a nuisance. After hearing this tonight, I believe that this is becoming a nuisance. I believe that this is in violation. Mr. Bright agrees. Mr.  Bright wants to make a motion that the Board find "Bassa" in violation. Mrs. Reilly says The Board cannot do anything about the patrons, but the owners of "Bassa" explained that they were professionals and it seems that their idea is different then what we thought. Mr. Bright also has noticed restaurant garbage out back of "Bassa" on the ground. Chairman Clunan wants to get to Mr. Bright's motion. The Boards asks CEO Keene to investigate this matter. Mr. Tracy wants to add Mrs. Graves tape as evidence. He further asks Mrs. Graves if anyone has looked at the police reports. There is a follow up action where The Planning Board can take action. He refers to Section #7 of the LUZO, again. Mrs. White, from the public makes several comments about what she has observed, being a Bed and Breakfast owner near the restaurant. The Board finds that the CEO shall determine whether the activity approved by the Planning Board CUP permit # 21-2006 that amends CUP permit # 8-2003 is not being conducted in a manner that is consistent with the permit, specifically the condition conceerning limitation on last seating. And that the activity when established would not be obnoxious or offensive by reason of noise.  Mr. Tracy wants to know if there is any proof that the last seating is not being complied with. Mrs. Graves letter states on June 25th, 2007 at 10:30pm loud talking, laughing of what sounded like staff members. This went on for more then 30 minutes. Mr. Tracy asks if there are doors that can close off the back patio. Yes, there are doors. Mr. Bright asks CEO Keene, what she thinks. CEO Keene replies that there is no way she can determine the time of the last seating's, unless she is sitting right there at night." As far as the noise goes, I can certainly go take a look at that. As your minutes state, I can go look for wires and such for piped in music. I need to be cautious on how I approach this. The problems are happening at night, after my hours and I have gone home." Chairman Clunan asks if enough evidence has been provided to start an investigation. "Yes," she replies. "But, like I said, I have to be very cautious of how I approach this. There is a court case pending, as you know, so I would have to call the Town attorney and ask if I can do this." The CEO has to witness the violations, his/ herself. We have the tape. No, that is hearsay. The Board asks that CEO Keene speak to the Town attorney and MMA and find out how she can proceed.  Mr. Bright suggests the people concerned with this issue go to the next Selectmen's meeting and repeat what has been said here tonight. Play the tape and say what you have said here, and have all of your neighbors there. You need to build your case. Next year they will be before the Board looking for a liquor license. Thank you Mrs. Graves, says Chairman Clunan.

Mr. Bright would like to ask the Selectmen if they can put a moratorium on subdivisions. Tonight, we were totally inadequate. We have no fire protection, no steepness of slopes. I think it is obvious that we have some big holes. All members agree.

The minutes from the 6/11/07 meeting and the 6/25/07 meeting were approved as amended. Mr.Bright/ Mrs. Reilly (4/0)
 
MOTION TO AJOURN Mr.Tracy ;SECONDED BY Mr. Bright

IV.     Meeting adjourned at 9.p.m.  The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, August 13, 2007 in the Meeting Room, Town Hall, Northeast Harbor.

Respectfully submitted,




Patti Reilly, Secretary