Town of Mount Desert
Planning Board
Minutes October 23, 2006
Board Members Present Public Present
James R. Bright, alt Eric Henry Sam Fox
James Clunan, Vice Chairman Rick Savage Debra Andrews
Gerard M. Miller, alt Katrina Carter Brian Reilly
Joseph Tracy Jim Robinson Sherry Churchill
Patti Reilly, Secretary Jana Robinson
Kim Keene, CEO; Joelle D. Nolan, Recording Secretary
I. The meeting was called to order at 6:00 p.m. by Vice Chairman Clunan.
II. Consideration of the draft minutes from the October 10, 2006 meeting was postponed until the next meeting.
III. Public Hearings – Conditional Use Permits
A. NAME: Beth & David White
LOCATION: 2 Smith Place, Northeast Harbor
TAX MAP: 24 LOT: 120 ZONE: VC
PURPOSE: Hotel/Motel up to 8 Units
SITE INSPECTION: 4:00PM
WITHDRAWN 10/13/2006
B. 2:53NAME: Julia & Edward Leisenring
AGENT: Eric Henry
LOCATION: 216 Huntington Place, Northeast Harbor
TAX MAP: 24 LOT: 145-2 ZONE: VR2
PURPOSE: 3.4.7 Fences exceeding CEO Authority
SITE INSPECTION: 5:15PM
No conflict of interest was reported. The 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 Mrs. Reilly, Mr. Miller, Vice Chairman Clunan, and Mr. Bright; and reported by Mr. Bright. Originally there was a 4 - 5 ft high fence with 3 panels. The new fence has 4 panels that are 6 ½ - 8 ft high. These are taller than other fences in the area. It was put in place to prevent headlights from shining into the Leisenring home. CEO Keene referred to her letter of violation because the fence was erected without a permit. Mr. Tracy noted that finials are not included in fence height consideration. This is an after-the-fact permit.
MOTION TO APPROVE MADE BY Mrs. Reilly; SECONDED BY Mr. Miller
Mr. Eric Henry explained why the fence was erected without a permit. He was asked by Mrs. Leisenring to raise the height of the fence to deter headlights from shining into her home. He talked with neighbors regarding the fence and they said it was OK with them. It did not occur to him a permit was needed to raise the fence. He admitted it was his mistake and apologized for the error of not applying for a permit.
In reply to the question asking if there has been any correspondence from the public on this issue, CEO Keene replied to Vice Chairman Clunan, no. Vice Chairman Clunan then asked if any public present wanted to comment, again there was none.
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 that the testimony of Mr. Henry and Mr. Bright is adequate to comply with this standard.
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 application complies with this standard.
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 standards do not apply, therefore the application is in conformance.
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 gravelError! Bookmark not defined. 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 this standard does not apply, therefore the
application is in conformance.
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 theses standards do not apply, therefore the application is in conformance.
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 new fence in terms of physical size is somewhat larger than visible fences in the area; none the less, the application is in conformance with this standard.
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 fence will have no impact on town services; therefore the application is in conformance with this standard.
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 proposed fence will have no impact on highway safety or parking, therefore the application is in conformance with this standard.
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 the preserving the Town’s Character, therefore is in conformance with this standard.
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 despite the increased height of the fence the application is neither obnoxious nor offensive, and therefore is in compliance with this standard.
After the review of Section 6, Vice Chairman Clunan asked if any Board members had any conditions to apply. Mr. Bright said he has some objections to what the Board just agreed to. He thinks the fence is not compatible with the neighborhood or with other fences in the area by reason of the height. He finds it offensive and suggested vegetation would serve the same purpose. Mr. Henry said vegetation was considered but that is not what the owner wanted. There is room for vegetation. Mr. Bright said he does not agree that the application complies with Section 6.9. Mr. Tracy suggested it does not comply with Section 6.6 due to the physical size.
CEO Keene asked about additional fencing. Mr. Henry said this fence was erected to stop the view of approaching cars. During the summer with all the construction taking place, Mrs. Leisenring said she wanted another fence, about 60 feet long and of similar height, at the back of the property. Mr. Henry discouraged this and suggested they deal with only this fence for now. Existing and additional trees might take care of the proposed longer fence, but that is another application.
Board discussed various options in place of the fence, such as vegetation. Board also discussed the problem of setting precedence by permitting a fence this tall.
Vice Chairman Clunan stated the Board can make a finding that the use is not compatible under Section 6.6 and is offensive. Board reconsidered Section 6.6 and found that the fence is not compatible and is offensive.
A VOTE WAS CALLED AND THE MOTION TO APPROVE FAILED UNANIMOUSLY (0-5).
It was clarified that the fence can go back to the original height (under six feet), which would be the top of the lattice work. Mr. Tracy described it as the top horizontal can go up to 6 feet, and the finials beyond that. Mr. Bright disagreed and suggested CEO Keene, as the enforcer, should guide Mr. Henry. Mr. Henry will discuss with CEO Keene.
IV. UNFINISHED BUSINESS
A. NAME: Island Housing Trust
AGENT: Sam Coplon, Coplon Associates
SUBDIVISION NAME: Ripples Hill
LOCATION: Off Beech Hill Road, Somesville
TAX MAP: 10 LOT: Portion of 48 ZONE: VR2
PURPOSE: Subdivision – Completeness Review
WITHDRAWN 10/16/2006
B. NAME: Elizabeth Allen
LOCATION: 2 Fitz Hugh Lane, Northeast Harbor
TAX MAP: 8 LOT: 95 ZONE: RW3
PURPOSE: Services 1-Art Studio
Continuation from October 10, 2006
WITHDRAWN 10/19/2006
V. NEW BUSINESS
Vice Chairman Clunan left the meeting and Ms. Reilly assumed the Chair.
A. NAME: Jim Robinson
LOCATION: 3 and 5 Rock End Road, Northeast Harbor
TAX MAP: 24 LOT: 25 ZONE: VC
PURPOSE: Subdivision sketch plan review
SITE INSPECTION: 4:45PM
Attending the site inspection were Mrs. Reilly, CEO Keene, and Mr. Bright, who reported on the site inspection. Mr. Robinson has sold one lot (of 3) and wants to sell another in a time frame that requires a subdivision.
Mr. Robinson presented a copy of the draft survey. In 1997 he bought the house and shop, and in 2004 bought abutting property. One lot was sold, as commercial property, last year. An additional lot is on the market, which would result in 3 commercial lots. His remaining lot has been expanded to conform in size to the Village Commercial zone. It’s simply a timing issue (within 5 year limitation of subdivision ordinance). Mr. Bright asked if when Mr. Robinson bought his lot, was it residential – Mr. Robinson said no, it was a non-standard lot bought for commercial use and used as such since six months after purchase. Mr. Bright asked what differentiates between residential and commercial. CEO Keene explained the primary use is commercial use and that was established
with a former CEO. The prior use was non-conforming, and used as residential. Mr. Bright asked how a lot with a house on it and a shop added later becomes primary commercial use. What makes the shop more primary than the residence? The whole area is zoned Village Commercial. By dividing the lots as proposed, they come into compliance with the requirements for the commercial zone. Mr. Bright asked if making this a commercial lot prevents it from becoming residential in the future.
Mr. Robinson will proceed with the subdivision application process with CEO Keene.
B. Discussion of steep slopes, ridgelines…
Board agreed to discuss potential building on steep slopes and ridgelines. Acting Chair Reilly described the importance of these issues nationwide as well as locally. There are many implications for responsible planning, attention to natural resources and environmental conditions and qualities; also aesthetics, which is very important to this island.
Mrs. Reilly distributed a map showing island elevations (map obtained from earlier Comprehensive Plan Committee work). Board agreed to focus discussion on slopes.
Sherry Churchill, Planning Consultant for Town of Mount Desert Comprehensive Plan Committee, presented information from State of Maine Comprehensive Planning Manual. It contains guidelines for communities to start looking at slopes and development. It’s common to start looking at 8%, and 25 % is generally considered the cutoff for development. Mr. Tracy brought up the problem of mixing percentages and degrees and questioned if the maps are accurate. Mr. Brian Reilly, Comprehensive Plan Committee member, referenced another Comp Plan map. Mr. Tracy referred to a topography map and is uncertain that the Comp Plan map is accurate. Mr. Miller asked for copies of Mr. Reilly’s map. Mr. Tracy asked if there an existing problem with erosion on steep slopes? CEO Keene has
seen one problem on Robinson Lane (Grayson property). She has observed the area during the different seasons and has noticed that some of the hot-top has eroded from water coming down the hill. She is not aware of houses falling into the ocean or ledges giving way. Mr. Reilly suggested it is more of an aesthetic issue. Mr. Tracy said it is in the interest of landowners to prevent erosion. He has not seen erosion problems even on steep hills. Roads are more of a problem than homes. Mrs. Reilly suggested it isn’t just erosion; it is also thin soils and septic systems. Mr. Tracy said we have rules to deal with all this, and we need to avoid over regulating. Mr. Miller prefers to look ahead and not deal with problems after the fact. He referred to Asticou Trail: after heavy rains, it is like a river. The road is in place because the houses were built.
CEO Keene sees clearing of trees as an erosion issue. On Narrows Road the clearing of trees caused land to erode into the water. Mr. Bright referred to property across Somes Sound (Grayson) and suggested there is a serious erosion problem on that property; now scenic land is available for housing. Scenic views need to be protected. Mr. Reilly stated that Grayson has the right to build three houses on the property without coming to Planning Board, under the present rules. Because the Planning Board proposes the rules, passed by Town vote, he suggests they are the gatekeepers. View shed was discussed and what constitutes the view (how high for how wide). Mr. Miller suggested Board needed a good sized view with an overlay of what can be built, on a map that everyone can understand, prior to
discussing this issue. It’s unclear that 200 feet is the definition. Mr. Bright gave another example of an offensive view. A barn, built on a ridgeline, Carroll’s Hill in Southwest Harbor, with a metal roof that can be seen 10 miles offshore. Followed a discussion of possible restrictions to protect views. Mr. Bright suggested our industry is tourism and our view.
Debra Andrews, resident of Seal Harbor, said she agrees with Mr. Bright and shared her concerns about the disparity between the new giant houses and small houses. It is important to address the aesthetics now.
Board agreed it needs to look at architectural review and exterior material. Mr. Tracy would like to see a larger scale map that shows steep slopes and several degree grades.
Sherry Churchill said this has been an excellent discussion for her to take to the CPC.
Mr. Richard Savage, Board of Selectmen Chairman, commented on walking a fine line when it comes to aesthetics. He cautioned about creating laws based on perceived visual damage by non-abutters, people just passing by. He referred to the Brooking Report and said it should be mandatory reading for anyone who serves in public office. In writing new laws and regulations, we need to be very careful and have a good reason. Rely on professionals for such things as soil engineering. Sprawl is already here; we’ve done it with our own zoning. Understanding the impact of new rules and regulations is a must. Emotions need to be checked.
CEO Keene asked that the record reflect that Sydney Rockefeller could not be here but wants it known that she has serious concerns about ridgelines.
IV. Meeting adjourned at 7:27 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, November 13, 2006 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Patti Reilly, Secretary
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