Town of Mount Desert
Planning Board Meeting Minutes
October 22, 2007
Board Members Present
Schofield (Sandy) Andrews III, James R. Bright, Vice Chairman, James Clunan, Chairman,
Gerard M. Miller, alt, Patti Reilly, Secretary and Joseph Tracy
Public Present
Alison King, Gary Fountain, Dave Ashmore, Sydney Roberts Rockefeller, Brian Reilly, Edd Hamor, Steve Pinkham, Becky Buyers-Basso, and Dave Irvin
Kim Keene, CEO; Danielle Goodwin, Recording Secretary
I. The meeting was called to order at 6:01 p.m.
II. The draft minutes from the September 17, 2007 workshop were unanimously approved as amended with the portion pertaining to the amendments suggested by CEO Kim Keene moved to the end of the meeting for discussion along with the draft minutes from the September 24, 2007 meeting.
MOTION to approve made by Chairman Clunan; Seconded by Mr. Tracy.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (6/0).
III. Old Business
A. Update on Request for Proposals from Planning Consultant Candidates.
First, Chairman Clunan asked CEO Kim Keene if she had any new information or inquiries. Mrs. Keene replied that she had forwarded a message from Tom Martin of the Planning Commission to Mr. Clunan and she had several calls inquiring about the RFP on the website. There was an issue getting it posted on the website but it is there now and she's had three or four calls since then.
Chairman Clunan reported that Mr. Martin had inquired about the October 17, 2007 deadline for accepting proposals as he saw the ad in the October 18, 2007 print. Mr. Clunan explained that the print was anticipated to run in the October 11, 2007 print but did no. Therefore an amendment has been submitted to change the deadline the October 26, 2007. In addition, amendments based on advice and approved by the Town Attorney will be updated and posted on the website by tomorrow October 23, 2007. The Board members will review the applications and meet on November 5, 2007 to discuss them. In order to get the work done for the possible grant the board will be meeting weekly through mid November but to avoid burning out the Board will not meet November 26, 2007.
B. Consideration of revised Steep Slopes draft moratorium.
Chairman Clunan first determined who the voting members would be by asking James Bright whether or not he had a conflict of interest. Mr.Bright responded that he did not have a conflict of interest as there were no steep slopes on the properties abutting his and that's the only conflict he could see as he has been involved in the advancement of the steep slope moratorium idea. Chairman Clunan reads the definition of the types of conflict of interest as stated in the Maine Moderators' Manual. The first had to do with being on a board, a holder of stock, or having a 10% interest in any possible business gains. They agreed that this conflict did not apply. The second, having a bias for or against a particular applicant, where a judgment call would be involved. Another would be a pecuniary interest in the outcome of the
meeting. Lastly, in addition to the legal conflicts of interest would be the appearance of a conflict of interest that could undermine the public's confidence in the Boards work. Mr. Bright reaffirmed that he did not have a conflict of interest as his abutters did not have steep slopes and furthermore the moratorium would be looking at the whole town. The Board agreed that they were satisfied with what they heard and there was no conflict of interest.
Schofield Andrews questioned whether the attorney had reviewed the language in the draft moratorium yet. Chairman Clunan replied that he had not but in speaking with him
his only question was if the Town had a charter that stated what the authority to issue the moratorium. The Planning Board will submit a draft moratorium on steep slopes as a recommendation to the Board of Selectmen. Should the Board of Selectmen decide to declare a moratorium it would go to the next Town meeting for approval.
Chairman Clunan began by reading the operative paragraph from the Ridgeline and Steep Slopes Moratorium Draft as follows:
"NOW, THEREFORE, the Town of Mount Desert hereby ordains that a moratorium is hereby imposed, effective immediately and applicable, to the maximum extent permitted by law and subject to the severability clause below, to all proceedings applications and petitions not pending (within the meaning of Title MRSA SEC 302) as of December ___, 2007 for any new construction activities, including new structures, new expansions, and/or new re-configuration of greater than 40% of existing structures located on hillside slopes with an inclination of 20% or greater requiring building permits from the Code Enforcement Officer or conditional approval under the terms of the Town's zoning and land use ordinances and regulations until the effective date of the necessary amendments to the zoning
and land use ordinance regulations or until June ___, 2008:"
Chairman Clunan then summarized the preceding as a proposal for a six month moratorium on new structures and significant new expansions on hillside slopes with an inclination greater than 20%.
Mr. Bright and Mrs. Keene questioned the 40%. After discussion it was decided to use 30% of floor area or volume during the moratorium, which is consistent with the regulations for non-conforming structures with expansion within a setback.
Chairman Clunan read the current standard from the existing comprehensive plan, "Among other things, the policy of the Town is to reasonably preserve the characteristics of the land yet to allow development of the land giving due regard to the need to preserve its topography, open spaces, wetlands, forests and other valuable scenic and ecological figures." He went on to read from section 1.2 of the Land Use Zoning Ordinance, "Growth must be controlled in accordance with the standards set forth in the comprehensive plan." However, the comprehensive plan does not mention steep slopes or give any numeric value standards. One of the goals of the plan is to ensure Mt. Desert's variety and protection of natural resources including scenic vistas. The draft suggests that slopes greater than 15% need guidelines and
those greater than 25% should be restricted by the Planning Board particularly in areas considered scenic vistas.
Chairman Clunan and Mrs. Reilly suggested 25% during the moratorium to enforce some regulation without being too severe. Mr. Tracy asserted that he would really rather have the maps to look at and pin down where the steep slopes and scenic vistas are. Mr. Andrews and Mr. Miller were of the opinion that a moratorium put in place until details could be worked out should be as stringent as possible until a standard is decided upon and suggested 15%. After brief discussion of the 20% figure and further discussion on the difficulties in defining what constitutes a steep slope, the discussion was opened to the public.
Mr. Fountain missed the beginning of the meeting when the Board and Mr. Bright agreed that he did not have a conflict of interest. Mr. Fountain wanted to state again that he believed Mr. Bright instigated the moratorium and does have a conflict of interest due to the size of the parcel abutting his property and the effect it would have on his property. He then questioned Mr. Bright's reasoning that he did not have a conflict because there were no slopes greater than 20% and asked who determined that.
Chairman Clunan summarized the discussion from the beginning of the meeting when the Board addressed the question Mr. Fountain asked earlier regarding Mr. Bright's possible conflict of interest. Chairman Clunan then listed the four types of conflict of interest which the Board and Mr. Bright previously addressed and determined that he did not have a conflict of interest. Mr. Bright also assured the Board that the abutting property in question did not have any steep slopes.
Mr. Bright had walked the property and read the sales brochure put out by Mr. Fountain's company advertising an "extremely rare offering of large unrestricted acreage close to Northeast Harbor abutting Acadia National Park, gently sloping and elevated building sites with potential mountain and water views," to support his statement that there were no steep slopes on the property.
Mr. Fountain questioned that Mr. Bright knew the property as well as him and debated that regardless of whether it contains steep slopes or not, whether or not the property is developed and who does it has a direct effect on the value of Mr. Bright's property.
Mr. Bright responded that this moratorium is on steep slopes alone not any other kind of development therefore he has no conflict of interest. However, if Mr. Fountain came to the Board with a sub-division plan for the property he would recuse himself without question.
Mr. Clunan asked Mr. Fountain if partial development on that land would cause a negative or positive impact on the value of Mr. Bright's land. Mr. Fountain responded that it could go either way. However, the access to the land has a direct effect on Mr. Bright's use of his property. He then stated that he was all set and understood where the Board stands. He thanked the Board for hearing his concerns which he wanted on the record.
Mr. Ashmore then questioned how the 20% was to be measured as usually there is a distance associated with slope.
After brief brainstorming of the Board and CEO and discussion on how a 20% slope might be defined by building envelope or construction zone etc., it was pointed out by Mr. Andrews and Mr. Bright that the purpose of the moratorium would be to give blanket coverage to allow time to work out those details.
Mr. Irvin asserted that although the diacussion has focused on the details, which are difficult to define, but the general objections from the public were concerning the visual impact. He did not think a 2 ft rise over a 10 ft run could be a crisis. However, the visual impact on scenic vistas such as Acadia Mountain would qualify as a crisis situation.
Chairman Clunan suggested wording that would include preserving valuable scenic vistas similar to the existing Comprehensive Plan. For example, slopes located on building envelopes and other accessory construction features located in scenic vistas with a hillside slope of 20% over 100 feet. Even then, you have the dilemma of defining scenic vistas.
Mr. Irvin voiced further concern that 20% over 100 feet was too broad of a spectrum considering the topography of the town. In that case he thought the moratorium would apply to half the town and cause 75% of economic activity would come to a halt. In addition, he believed there was a marketing and perception issue hindering public involvement. If you asked the townspeople if they're in favor of a steep slope moratorium they're most likely not going to identify a 20% grade as a steep slope and would therefore not really understand what they were voting for.
Mrs. Reilly stated that the six month moratorium would go by quickly but buy the time to gather public concerns and put together a fair ordinance to allow development.
Mr. Ashmore expressed concern for alienating people by going overboard with a six month moratorium that was too stringent. Although he was in favor the steep slope ordinance idea, he worried about the risk of negative impact and suggested leaning toward the conservative side. Again, he thought most of the public would not identify a 20% grade as a steep slope and a moratorium could end up hurting a lot of people who have no idea what was going on.
Brian Reilly stated that the owner of the land at the base of Acadia Mountain currently holds two permits. So although we have not seen a rush for permits yet, there are people trying to do exactly that.
Mr. Bright suggested a moratorium on building above a certain elevation to take into account Mr. Ashmore's concerns. However, scenic vistas could be located at any elevation.
Mr. Tracy would like to see a map that outlined the slope inclinations over the island and correlate those to areas with scenic vistas to get a more comprehensive idea of the layout and effect of a moratorium.
Sydney Roberts Rockefeller noted that she was very upset by the Gilespy development in Southwest Harbor which was on steep slopes and the tree line and left quite a scar. She has seen similar development in Bar Harbor and thinks it needs to be very carefully considered.
Mr. Tracy pointed out that the Gilespy development was not actually located on a steep slope although it was at a high elevation and would be permitted in the Town of Mount Desert, therefore the Board needs to include scenic vistas. In light of 'visual impact' on ridgelines and scenic vistas, Mr. Bright suggested regulating building materials to prevent eye sores. Mr. Tracy asked why bother with a steep slope moratorium when the problem is really with scenic vistas?
In addition to scenic vistas, Mrs. Reilly voiced concern for safety issues on steep slopes. During a previous discussion of the Acadia Mountain sub-division, the Fire Chief expressed concern for availability of water due to the location and size as well as access of emergency vehicles in the case of a fire. Therefore, Mrs. Reilly stated safety should be a concern and if the roads could not be built up to ordinance standards, it should be denied.
Although Mr. Irvin found it foolish to build a six million dollar house without vehicle and emergency access, he stated that it was more an issue of the road standards which could easily be changed and not the steepness of the slope. It was earlier mentioned that the moratorium came about because of the one PUD for Acadia Mountain; the purpose of the lot size was to prevent the developer from coming for lower cost housing and using a weapon as the lot to do it in. He further reported that the road standards were taken verbatim out of DOT's standard highway book, which was felt to be generally unbuildable in the Town of Mount Desert as a way to prevent something, although the standards are often waived. So the standards were not so much thought through and set for the Town as a mechanism to prevent a development and could
easily be misapplied. The issue of safety is not a function of the steepness of the slope it's the narrowness, overhang and a variety of other factors which could be addressed and changed through the Town meeting.
Steve Pinkham pointed out that although there are road standards there are no driveway standards which is where you run into problems with emergency vehicles.
Mr. Tracy agreed and stated that was one of the reasons Robinson Lane could be built because there were no driveway standards.
Chairman Clunan closed the public comment so the Board could continue discussion and suggested coming up with an easily measured standard in order to preserve the main concern of scenic vistas.
Mr. Andrews offered that short of creating a map locating the scenic vistas there was no way to define them that was not completely open to interpretation and the process of refining a map or definition would be too time consuming for the urgency of a moratorium. He questioned whether it was possible to create a draft moratorium that accomplished what they wanted but was simple and workable enough to pass on to the Board of Selectman.
Chairman Clunan restated that he would be in favor of 25% over a certain distance (for example 100 feet) to include the building envelope and other construction (such as roads and driveways) as well as scenic vistas.
Mr. Andrews pointed out that a crude moratorium will miss important things and unnecessarily stop others.
After further discussion of how to define 25% percent, percentage vs degrees, redefining the moratorium to cover construction on ridgelines and scenic vistas and how to define them, addressing driveways on steep slopes, as well as taking a couple of days to draft new language for the moratorium, Mr. Andrews pointed out that would leave it to Kim's discretion to interpret and may invite law suits.
Chairman Clunan reopened discussion to the public as the Board was out of ideas for the moment. Mr. Irvin suggested rather than putting a moratorium on any new buildings to apply it to new sub-divisions based on size to focus on the main threat with larger perameters rather than complicate the issue with details and leave the road safety issues to another debate.
After additional discussion suggesting two moratoriums, and the standing difficulty in defining and measuring the standard, Mr. Andrews stated it seemed to be hard to draft a moratorium that would accomplish the goals in a few sentences.
Mr. Fountain declared that tonights discussion has proved that a moratorium may not be the correct instrument. Although he agreed that these issues need to be addressed, it seemed that the moratorium was raising more issues, becoming counter productive and could cause serious backlash.
Mr. Tracy restated the concern that with a 6 month moratorium there would be political risk of backlash and offered that without a moratorium there could be the risk of a couple developments passing.
Chairman Clunan suggests taking a recess to clean up the text so they could vote on it tonight or taking a vote now on whether to do it at all. Mr. Tracy agreed that they should first vote on the latter than procede or not. Mrs. Reilly voiced dissapointment that there was not more public turnout and involment.
Ed Hamor explained that the public probably didn't understand the language of the moratorium and may not realize that it would affect them. He as a contractor and would be adversely affected which is why he was there. He watched the moratorium in Bar Harbor go through and found it to be ridiculous and very scary that the people didn't know what they were voting on.
Mrs. Reilly further stated that those who would be affected the most were here to voice their opinions but unfortunately that is not necessarily the view of the majority.
Before a motion was set forth, Mr. Andrews offered his two concerns with the moratorium. That it only touches steep slopes and not ridgelines which are a major concern and that it needs defining of the area being measured. He proposed within the area of construction of the structure and 100 ft surrounding it, which is still a crude measure that will leave some things out and include some they don't care about from a scenic standpoint. However, from a public safety standpoint they may want to control more.
Mr. Hamor asked if he had a 2 million dollar piece of property right now and the moratorium went through would he be able to build on it? If not, it would come out of the tax base of the Town and he strongly suggested it be well thought through.
Mr. Andrews explained that during the moratorium the Town would have a consultant in to consider all the implications of construction in all the various places and updates the Land Use Zoning Ordinance. It may be determined that a property is in an extremely scenic vista and deemed unbuildable.
Mr. Hamor felt that catered to a few people who didn't want to see the house and any lot could be built on if engineered correctly.
IV. Other
The draft minutes from the September 24, 2007 workshop were unanimously approved as amended.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY ( ).
V. Meeting adjourned at . p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday November 13, 2007 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Patti Reilly, Secretary
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