Mount Desert, ME - Planning Board Meeting Minutes

Planning Board Meeting Minutes - 12/10/07

Town of Mount Desert Planning Board

Minutes for December 10, 2007

Public Present

Diane Lokocz; Mike Musetti: Debbie Musetti; Douglas Hopkins; Jim Fuller

Board Members Present

James Clunan, Chairman; James R. Bright, Vice Chairman; Schofield (Sandy) Andrews III; Joseph Tracy; Gerard M. Miller, alt; Patti Reilly, Secretary

Kim Keene, CEO; Danielle Goodwin, Recording Secretary

I. The meeting was called to order at 6:03 p.m.

II. The draft minutes from the October 9, 2007 and October 22, 2007 meeting were postponed until after the CUPs.

III. Public Hearings

Conditional Use Permit Application(s)

A. NAME: Debbie Musetti, LLC

LOCATION: Soundview Camp Rd., Hall Quarry

TAX MAP: 8 LOT: Portion of 148 & 150 ZONE: SC

PURPOSE: To construct a Single Family Dwelling

SITE INSPECTION: 2:00 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

There was brief discussion during which Mr. Tracy reminded the Board that the purpose of the application was simply to change the zoning from shoreland commercial to shoreland residential and cautioned against spending too much time on the application like the Branson's Wharf application.

Site Inspection was attended by Mr. Miller, Mr. Bright and Mr. Andrews. Mr. Bright reported that the snow made it hard to see the property lines and slope but all the site work was done. The construction was setback about 250 ft from the water. The proposed rental would be sharing an existing septic system and looked like a nice spot for a home.

There were no questions from the Board members.

MOTION TO APPROVE MADE BY Mr. Andrews; SECONDED BY Mr. Bright.

There were no comments from the public.

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 its received testimony of applicant and plan submitted by Tom Benson, and they meet the standards of Section 6.1. (5/0)

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 the use to be established is in compliance with Section 6.2 as stated above as to be determined by CEO. (5/0)

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 these determinants are within the purview of CEO so this Section 6.3 is not applicable. (5/0)

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 these action within the purview of the CEO therefore this Section 6.4 is not applicable. (5/0)

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 the standards stated above are within purview of the CEO and therefore not applicable. (5/0)

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 proposed use will be compatible with uses as stated above and therefore are in compliance with Section 6.6. (5/0)

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 proposed use shall not unduly burden the capacity of Town Services as stated above and are therefore in compliance with Section 6.7. (5/0)

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 proposed use is in compliance with Section 6.8 as stated above. (5/0)

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 proposed use is in compliance with Section 6.9 as stated above, especially regarding tree cultivating and thinning between the house and the shoreline. (5/0)

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 proposed use when established will not constitute a nuisance or any as stated above and is therefore in compliance. (5/0)

A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (5/0).

B. NAME: Seal Harbor Properties, LLC

AGENT: Doug Hopkins

LOCATION: Off Route 3, Seal Harbor

TAX MAP: 3 LOT: 16 ZONE: SR2

PURPOSE: Non-Commercial Livestock (hoofed) Horse Coral

SITE INSPECTION: 3:00 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

Site Inspection was attended by Mr. Miller, Mr. Bright and Mr. Andrews and reported by Mr. Andrews. It is a narrow lot off Rte 3 on the East side of Long Pond that runs downhill toward the water. The lot is slightly wooded with maple and spruce trees and sits about 210 feet back from the water. Mr. Hopkins said that the lot was a little wet, however one could not tell due to the snow.

Mrs. Keene added that the entire lot was zoned shoreline because one corner of the lot was within 250 feet of the water. She also met Doug Hopkins to look at the land and spoke with Mr. Pelletier. Because the state laws are not as strict as the Town's, the owners would be well within the limits.

Mrs. Reilly inquired as to the use and maintenance of the land. Mr. Hopkins replied that there would probably be two horses there for two to three hours a day to graze and exercise over a span of five to six weeks. The owners also plan to fertilize and seed the land in the fall and spring.

Chairman Clunan reviews chart 3.5 on page 11 of the Land Use Zoning Ordinances. There were no comments from the public present.

MOTION TO APPROVE MADE BY Mr. Tracy; SECONDED BY Mr. Bright.

After brief discussion of proper drainage care and parking, 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 has submitted expert testimony in a letter from Stantec Inc. as well as agent Mr. Hopkins regarding behavior and housing density and therefore find that this application is in conformance with Section 6.1. (5/0)

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 the use will be located on soil suitable for pasturing of hoofed animals and avoid adverse environmental affects as stated above and the applicant will monitor drainage and take corrective action if too wet and is in conformance with Section 6.2. (5/0)

6.3 Sanitary Standards:

2. All subsurface sewage disposal facilities shall be installed in conformance with the State of Maine Subsurface Wastewater Disposal Rules and the following:

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 this Section not applicable to the proposed use. (5/0)

6.4 Erosion Control:

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 applicant will take corrective action to prevent erosion and sedimentation due to use and is therefore in conformance with Section 6.4. (5/0)

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.

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 applicant will be in conformance with State clearing standards and will obtain CEO permit if required and is in conformance with Section 6.5. (5/0)

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 there are existing non-commercial livestock uses on adjacent lots and the proposed use is compatible as stated above and is in conformance with Sect. 6.6. (5/0)

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 there are no Town Services other than fire, police, refuse and the proposed use conforms to Section 6.7. (5/0)

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 proposed use when established will be in conformance with Section 6.10 as stated above. (5/0)

A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (5/0).

C. NAME: College of the Atlantic/ Beech Hill Farm

AGENT: Diane Lokocz

LOCATION: 171 Beech Hill Rd Mount Desert ME 04660

TAX MAP: 9 LOT: 43 ZONE: RW3

PURPOSE: Amendment to CUP # 99-21 to add Thursday 8am-5pm to their days of operation.

Site inspection was determined not applicable along with Standards of Section 6 as the application was for an amendment to a previously approved CUP and the only change would be the signage. However, the three Standards of Section 5.7.1 would be reviewed.

MOTION TO APPROVE MADE BY Mr. Tracy; SECONDED BY Mr. Andrews.

Diane Locokz explained that the reason for the request to add Thursday to their days of operation was to reduce the confusion over their schedule as well as to help spread the traffic throughout the week. Beech Hill Farm would still be open June through October and Tuesday - Saturday as long as possible before cutting back hours as usual.

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 that the application was previously in conformance with Section 3 as well as Section 6 and has not changed. (5/0)

2. on finding that there have been significant changes of conditions or circumstances; and

The Board finds that there have been significant changes in conditions and circumstances therefore successive days would be less confusing and meet the growing consumer demand. (5/0)

3. when justified by a statement of findings of fact and reasons.

The Board finds the amendment to the previously approved CUP is justified. (5/0)

A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (5/0).

IV. The draft minutes from the October 9, 2007 and October 22, 2007 meeting were unanimously approved as amended. Mr. Bright suggested double-sided minutes and applications to save paper.

V. Old Business

A. Chairman Clunan suggested reviewing the schedule with Rothe Associates as the "free" consultation to take place this month turned out not to be free and was therefore postponed until the grant was officially approved. Recording Secretary reported that the deadline to make the Warrant Committee Meeting should be February 22, 2008. The Board reviewed the timeline presented by Rothe Associates in their proposal. Chairman Clunan pointed out that their timeline extended over twelve weeks and to make the Warrant they would only have six weeks.

After further discussion the Board elected Chairman Clunan to contact Rothe Associates and coordinate a schedule to begin as soon as possible taking into account legal contracts and adequate public notice. The Board discussed beginning the initial meeting with a broad discussion, similar to the proposal, introducing the consultant to the big picture. However, it would be ideal to quickly hone in on particular areas of concern and prioritize items to be submitted for the Warrant. The Board also decided to conduct these meetings as workshops to separate them from other Planning Board issues.

B. Mr. Andrews brought up and Mrs. Keene reported that the court has kicked Sandra Grave's case back to the Zoning Board of Appeals and that they will probably kick it back to the Planning Board.

C. Mr. Tracy suggested the Board take enforcement action against the erosion on Acadia Mountain. Mrs. Keene affirmed that she was working the situation with David Smith, as he put in the road and septic system, but he hasn't returned her calls. Although Friends of Acadia now owned the land, there had been talk of Maine Heritage Trust purchasing the lot, removing the roads and revegetating. Mr. Tracy suggests at least setting up preliminary tarps to help with the septic and erosion.

VI. New Business

A. Based on the flood plain seminar Mrs. Keene recently attended, she reported that any CUPs within the flood plain need the Planning Boards approval before being issued a permit from the CEO. This includes involving rip-rap, filling, excavating, piers, all unanchored accessory structures and interior renovations.

Mr. Bright and Mrs. Reilly asked where the flood plains were. Mrs. Keene recalled that they included the ocean and streams but not wetlands and offered a map showing the designated flood plains.

VII. Meeting adjourned at 8:23 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday January 14, 2008 in the Meeting Room, Town Hall, Northeast Harbor.

Respectfully submitted,

Patti Reilly, Secretary