Town of Mount Desert
Planning Board Meeting Minutes
October 9, 2007
Board Members Present
James Clunan, Chairman, Joseph Tracy, Gerard M. Miller, alt, Patti Reilly, Secretary
Public Present
Alison King, Jane Haraden, Dave Ashmore, Constance Armstrong, Frank Hague, Quentin Armstrong, Penelope Elias, Mel Everly, Diane Young, Gerard Haraden, Lili Pew, Marla O' Byrne, Brian Reilly, David MacDonald, Gary Fountain, Anne Funderburk, Ben C. Moore, and Lance Funderburk
Kim Keene, CEO; Danielle Goodwin, Recording Secretary
I. The meeting was called to order at 6:05 p.m.
II. The draft minutes from the September 24, 2007 meeting were postponed until the October 22, 2007 meeting as there was not sufficient quorum to approve.
III. Public Hearings
A. Subdivision Application(s)
CONTINUATION
NAME: Lake Camp, LLC
AGENT: Samuel Coplon, Coplon Associates
SUBDIVISION NAME: Lake Camp Property
LOCATION: 50 Ripples Road, Somesville
TAX MAP: 9 LOT: 9 ZONE: SR5
PURPOSE: To create a 3 lot subdivision
SITE INSPECTION: Conducted previously on September 10, 2007
Mr. Joe Tracy abstained as he was unable to attend the last meeting and had not heard the tapes yet. The other 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 conducted on September 10, 2007.
Chairman, Mr. Clunan began the meeting by asking Mr. Coplon to review the new information he had presented upon request of the Board. Mr. Coplon explained that he had included further clarification on language regarding vernal pools in the wetland report which the soil scientist/ wetland biologist clarified that there are no vernal pools and provided the Board with the proper classification. Secondly, he provided notation on the plat as to the location of the wetlands refereed to in the report as a, b and c. Thirdly, he provided a copy of the Lake Camp LLC Operating Agreement.
Although the board had processed most of the application, Chairman, Mr. Clunan addressed new correspondence from non-abutting neighbors on Kimball Camp Rd concerned with protecting the wildlife habitat in the cove including: loons nesting and rearing their young, osprey, bald eagles pileated woodpeckers, black duck, kingfishers, heron, many small songbirds, eastern painted turtles, snapping turtles, bull frogs, and various species of fish. Mr. Coplon said he had spoken to some of these folks and just received more literature upon arrival. However, the application was to subdivide the land not to build on it. Furthermore, the State of Maine Department of Environmental Protection and National Resources Protection Acts' setback regulation is 250 ft from the upper edge of the habitat and the size of the property and proposed lots is sufficient
enough to allow future building sites outside the setback should the DEP declare the location a significant Wildlife Habitat as indicated by Wildlife Biologist, Mr. Richard Bard's letter proclaiming the cove as an (IWWH) Inland Waterfowl/Wading Bird Habitat.
Mr. Clunan suggested that it may beneficial to the Town and applicant to postpone the application in light of Mr. Bard's letter, changing DEP regulations and a letter the Board members received September 11, 2007, to allow the Board time to thoroughly digest the information. After further discussion it was decided to continue as the applicant was not trying to build so the regulations really had no baring at this time. Moreover, Mr. Coplon is aware of and prepared to meet the strictest DEP regulations and setbacks should he decide to build in the future.
The Board took a short recess at 6:30 pm to copy, distribute and read a letter introduced by Mr. Hague, Treasurer of Ripples Camp Association. The Board reconvened at 6:38 pm and allowed Mr. Coplon a chance to answer the following five questions posed by Mr. Hague.
Mr. Hague asked, if 250 feet was really adequate to protect nesting loons? If not what would be an acceptable loss of loon pairs?
Mr. Coplon had no comment. Gerard Haraden who lives across the pond, tended dam twelve years and watches the loons, stated that loons had nested in various sites on the property over the years. Chairman James Clunan stated that it was not really the Boards place to question the laws put forth by the state, if their experts say 250 feet is enough.
Mr. Hague stated that questions 2 and 3 really deal with runoff, the split of the parcel and effects of construction runoff on the shoreline and water quality.
Chairman James Clunan pointed out that at this time there was no application for construction at this time. However, part of the application did include documentation from a soil scientist stating that if proper procedures are followed runoff would not be a problem. Mr. Coplon agreed and went on to say that the more suitable areas for building based on good practice and the Town current ordinances are beyond the 250 ft setback creating a good safe guard against runoff concerns should they decide to build in the future. Chairman Clunan pronounced that the prior discussion covered question 2, 3 and 4 as they all pertained to runoff.
Mr. Hague's 5th point was that it was "the responsibility of the Town of Mount Desert to protect the natural habitats within its borders and not to allow Acadia National Park to do all the "heavy lifting"".
Chairman Clunan agreed that the Town does have a responsibility to protect natural habitats but added that the Town also has a responsibility to see that there is orderly development and the economic welfare of the Town does necessitate some growth as provided for in the Town Ordinances. There has to be a balance between conservation and development and interpreting the ordinance to see that that happens is the job of the Board.
Mr. Coplon added that one of the reasons they have five acre zoning in that part is partially in response to the old camps build close to the pond on small lots, many of which are Kimball Campground. When the Town adopted that ordinance it was to proactively prevent small subdivisions and safeguard the shore of the pond from future development.
Mr. Haraden expressed concern regarding the impact of new traffic due to the residents wanting to access the water from their land. Mr. Hague added that this cove is the upstream end of three ponds that made up that ecosystem. Mrs. Anne Funderburk also expressed concern for the loons stating that while out of respect we may not build on loon nesting sites, there is no way to guarantee that someone buying in would share that respect unless it's mandated. She also pointed out that the park closed Upper Hadlock Pond (much more than 250 ft) to protect the nesting loons and asked how much we could settle the island before destroying it? Chairman Clunan replied that although they are certainly not making any more land we also have to have room for people.
Chairman Clunan closed the public portion of the meeting and moved on to the completeness review. Sections 4 and 5 were found complete at the September 10, 2007 meeting with four pending conditions: provision of the corporate papers, having the lots pinned, wetlands marked and clarification of vernal pool statement on page 7 of the report which had been met. Therefore, the Board moves on the Section 6.
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 applicant is in compliance with the standards of Section 6.1 as stated above. (3/0)
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 the applicant is in compliance with Section 6.2 as stated above. (3/0)
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. The Board finds that Section 6.3.1 is not applicable as it is not with in 200 ft of a public sewer system. (3/0)
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 Section 6.3.2 is also not applicable as there is no sub-surface sewage disposal facility proposed in the application. (3/0)
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 standards stated in Section 6.4 above are not applicable because no
construction or building is included or stated in this application. (3/0)
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 Section 6.5 as stated above is not applicable because no vegetation removal is proposed in the application. (3/0)
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 no structures are proposed in the application and therefore it is in compliance with Section 6.6 as stated. (3/0)
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 minimal additional use when this parcel is sub-divided will be in compliance with Section 6.7 as stated above. (3/0)
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 applicant is in conformance with Section 6.8 as stated above as there is no development proposed at this time. (3/0)
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 general character of the Town in this area is very dispersed development in lots no less than 5 acres and the natural, historical and cultural character will not be significantly altered therefore the application is in compliance with Section 6.9 as stated above. (3/0)
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 sub-division is in conformance with Section 6.10 as stated above. (3/0)
Overall, the Board finds that the application of Lake Camp LLC represented by Sam Coplon of Coplon Associates for the sub-division known as Lake Camp property at 50 Ripples Road in Somesville, also defined as being located at tax map 9, lot 9 in shorland residential zone 5, to create a 3 lot sub-division. (3/0)
MOTION TO APPROVE APPLICATION MADE BY Mrs. Reilly; SECONDED BY Mr. Clunan.
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (3/0).
OLD BUSINESS
A. Report by Chairman, Mr. Clunan and Secretary, Mrs. Reilly reported on Letter to the Planning Consultant Candidates.
Chairman Clunan announced that some of the Town residents had offered a grant of up to $75,000 to provide the Board with expert planning assistance. However, a grant of this kind can only be accepted by vote of the Town at a Town meeting so the proposal has been passed up to the warrant committee for inclusion in the Special Town Meeting scheduled for December 3, 2007. In the meantime, the Board has begun advertising this possible opportunity via mailings to web search candidates, posting on American Planning Association website, posting on the Towns website and in local print media. In addition, the Comprehensive Plan Committee has created a draft Comprehensive Plan which should reach the Town voters in May meeting as it had to go to Augusta for State approval first.
B. Discussion on Steep Slopes.
A draft moratorium was written by one of the Board members and discussed at the September 17th 2007 workshop. Should the comprehensive plan be approved, as noted on page 69, the Planning Board would be expected within the next two years to create guidelines for development on slopes of 15% or greater as well as revision of land use zoning ordinance to restrict development on slopes greater than 25%.
Chairman Clunan recognized that the opportunity to address this issue may have been inspired by the proposal for the Robinson Lane sub-division commonly known as the Acadia Mountain sub-division which contained slopes ranging from 39.7% to 15%. Although that sub-division is no longer an issue as it was bought out by a conservation group it had brought the issue to the attention of the Board as well as the Town Members.
The first question was what would be considered a steep slope? The old sub-division ordinance for planned unit developments had a standard for no planned unit development on slopes steeper than 20% but did not elaborate on the distance 20% was to be over or how it was to be measured. Board Secretary, Patty Reilly found similar model ordinances for the Board to review and determine what constitutes a "steep slope". Within two weeks the Board expects to determine what comprises a "steep slope" and vote on whether or not to forward the draft moratorium to the Board of Selectman.
Mr. Samuel Coplon introduced the additional challenges of area and size when determining what constitutes a "steep slope". He gave the example of a property containing a vertical ledge. Such a site would obviously not meet any percentage requirements however it could still be practical to build. Therefore, he suggested a standard with regard to usability.
Secondly, was the question of whether or not this situation was considered a crisis and warranted a moratorium? Chairman Clunan briefly summarized the public comments from the September 17th, 2007 meeting including the following sentiments: It would take work to identify what and where steep slopes are located, the need to look at the permits from this past year and how many of them would have been impacted by a steep slope moratorium, perhaps steep slopes are only an issue where views are at stake and regulations should not be too blunt, the difficulty in legislating aesthetics so as not to end up with a vague standard, and that the market is relatively slow at this time therefore this is not an emergency. Chairman Clunan then opened for further discussion.
Dave Ashmore stated that he was opposed to declaring a moratorium and would like to see money appropriated for the planning consultants' expert advice then stick to the recommended comprehensive plan.
David MacDonald commenting as a resident living on the Sound wanted to add to the list of public concern, beyond aesthetics, the significant problem of soil erosion. Although the Town has acknowledged the erosion problem in Town Ordinances, Mr. MacDonald wanted public concern voiced to be sure that resource (soil) was considered in addition to aesthetics.
Anne Funderburk pronounced that she had an opportunity to walk the Robinson Lane sub-division and saw the erosion that has already taken place. She believes the only reason we don't have a crisis at this time is because a few very wealthy people stepped in and were able to buy the parcel. Because there is no way to know what the future may bring she would feel safer if there was a moratorium in place while we determine guidelines and carefully consider to what extent we can develop this beautiful island without destroying it.
Lili Pew of Northeast Harbor also walked the land and saw the damage from erosion and runoff as well as the long term impact and environmental damage of development. She suggested that because we do have limited land resources available and developers are looking for the best view shed the opportunities are only going to go higher up the slopes and a moratorium would allow an opportunity to get expert advice and for careful consideration especially as there seems to be a rush of building permit applicants as a result of discussion of putting a moratorium in place.
Chairman Clunan asked CEO Kim Keene if there had been a land rush for building permits or were they about the same amount as last year. Another question was where the recent applications came from. Mrs. Keene responded that there had not been a rush for building permits, it was probably the same as last year and although she had not yet received an application for the bottom of the hill she was expecting to.
Gary Fountain of Somesville wanted to reiterate (from the September 17th 2007 meeting) his concern about the moratorium. Specifically, that a moratorium is a precaution for
"crisis" situations and he did not believe there was a "crisis". Although he sees cause for concern regarding steep slope regulation and preserving the quality and character of the Town he believed this moratorium was a 'knee-jerk' reaction to Acadia Mountain and was too severe for the problem.
After further discussion regarding trying to identify a "steep slope" and some ordinances that other states such as New Hampshire and Vermont had put into place, Mr. Fountain asserted that each town has its own geographic challenges and the community should really be involved in developing the ordinance. He is of the understanding that the Planning Board has the authority to terminate any applications in process according to MMA which provides a safe guard and time to get the community involved, vote on the donation and have a professional planner come in to change the ordinances and specifically address steep slopes.
Chairman Clunan noted that that would only leave three months including Christmas for the planning consultant to present at scheduled Warrant Committee meeting and must be done 45 days before the Town meeting and there are additional issues the consultant needs to address which may carry on beyond this cycle. Therefore, we'll have to see what time frame the applicants come up with.
Mr. Fountain suggested having the planning consultant focus on the "steep slopes" for the vote in May if the community has perceived the issue as urgent, but to allow more time for community involvement.
Ben Moore stated that he has been all over Acadia Mountain and suggests more stringent regulations on taking proper precautions regarding construction techniques and materials used to address the issues at hand specifically erosion control rather than a moratorium in order to find a happy medium.
As Mr. Moore is a contractor, Patti Reilly asked what he might have done differently to prevent erosion and stop runoff. Mr. Moore replied that he would have used more crushed material that would hold and allow drainage as apposed to the sand used.
Samuel Coplon of Somesville agrees that the goal is worthy but voiced concern regarding targeting steep slopes out of a larger picture. Looking at Acadia Mountain it is certainly one of the problems but is connected to other things and shouldn't be isolated. Because of his experience with moratoriums he is concerned about a rush to get things through before the moratorium. He suggested caution in considering a moratorium and looking at Acadia Mountain as a learning experience in what we don't want, and making sure any profound changes in our landscape are looked at comprehensively as the planning consultant would.
Mrs. Funderburk added that to her "moratorium" meant delay not cessation and it would merely allow time catch our breath and do the needed research and address all of the issues at hand. And although a moratorium may be injurious to certain occupations, it is not forever and would permit taking the time these problems require.
Joe Tracy asserted his objection to the bluntness the moratorium and that it doesn't really address the problems with the viewshed. We now have laws in place addressing the soil and erosion problems and as CEO Kim Keene said, Robinson lane was an isolated incident that was done incorrectly and otherwise hasn't been a significant problem. Therefore, it does not seem fair to hold everyone hostage to that event. Furthermore, it would be in the best interest of the homeowners to prevent erosion and if they could prove to the CEO, Ms. Keene and other authorities, why should they be further restricted?
Attention has been brought to this important problem and it will be addressed right away however, a moratorium which is too broad and harsh doesn't seem to be the solution to this isolated incident.
Mr. Ashmore expressed concern for the difficulty in assessing the impact a moratorium would have on the Town residents as well as the disservice of declaring a moratorium without the Towns' vote. He suggested voting in the $75,000 at the next Town Meeting in December, having the Planning Consultant give immediate attention to a comprehensive report on steep slopes to be reviewed and voted on at another Town Meeting.
Mr. MacDonald reflected on the comments that we haven't had problems over the past ten years other than this incident but asked the Board to look ahead as well as builders seem to be pushing all the limits available. Although, he did not have a stand on the moratorium as he doesn't have enough information and thinks it should be very carefully considered, he does feel this problem needs to be addressed whether through this grant money or volunteers if need be.
Ms. Pew added that it's not just about a scenic view behind someone's house it's about the historical character of the Town which is what brings people here and keeps our economy going. She declared that she supports the moratorium as a thinking and planning period to consult with experts.
Mr. Tracy put forth a two-parted question for the audience as to whether they supported the moratorium as it stands? Or would they like to see a more nuanced moratorium that more acutely targets our problems?
Chairman Clunan read the operative part of the ordinance as follows:
"The Planning Board, Board of Appeals, Building Inspector, Code Enforcement Officer, all town agencies shall neither accept of approve applications for any new construction, expansion or reconfiguration of structures located on slopes with an inclination of _____(To be determined. For example 20%) or greater for the time period of six months. "
After lengthy discussion regarding the legislation of the proposed draft moratorium including: the fear of backlash, the possibility of a double-edged sword in regulating driveways and /or buildable lots, the public perception of a moratorium as threatening, the contractors feeling a rush to get things through before a moratorium and the need for professional guidance to more precisely craft the legislation, Marla O'Byrne, President of Friends of Acadia thanked the Planning Board for their thoughtful consideration regarding the moratorium as it takes some of the burden off the conservation community and pointed out that the Town does have many concerned citizens although not all of them are able to attend the Town Meetings.
The Board also thanked the public that attended as the discussions had been very helpful. They intend to make a decision and any changes needed on the moratorium by the next Planning Board Meeting on October 22, 2007. Then it will go to the Warrant Committee for approval. The Board discussed amongst themselves amending the moratorium to be less strict and more specific to better get across the point, the caution that needs to be taken when proceeding with the moratorium and whether or not a moratorium is necessary.
V. Other
Chairman Clunan ran through the following tentative timeline:
November 1, 2007- Written replies from interested Planning Consultant will be submitted.
November 5th - The Planning Board will meet to discuss the applications they have reviewed and decide which to call for interviews.
November 13th- The Board will interview the chosen consultants at the regular Planning Board Meeting.
Also, in exchange for the extra Board meeting on November 5th there will not be a meeting on November 26th.
IV. Meeting adjourned at 8. p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday October 22, 2007 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Patti Reilly, Secretary
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