ZONING BOARD OF APPEALS
OFFICIAL RECORD & REPORT
PRESENT AT HEARING:
FOR THE ZONING BOARD OF APPEALS:
Members: Chairman Harry Madeira, Ernest Coombs, George Lauriat Jr., Jerome Suminsby, and Kevin Walls
APPELLANTS:
Camp Beech Cliff, Inc. represented by: Fenton, Chapman, Wheatley and Kane, P.A., by Douglas B. Chapman, Esq., assisted by Ruth Baldwin
FOR THE TOWN:
Kim Keene, CEO
Claire Woolfolk, Recording Secretary
James W.J. Collier, Esq.
FOR THE PUBLIC:
Robert Smedberg, Deborah DeWalt, Debra Deal, Normane B., and Robert W. (“Lee”) Patterson, Jr.
HEARING DATE: 5-18-2010
I. CALL TO ORDER: The meeting was called to order at 7:00 pm by Chairman Harry Madeira.
NOTICE OF HEARING: It was confirmed that public notice was published in the Bar Harbor Times May 5, 2010 and May 12, 2010.
II. APPLICATION FOR VARIANCE APPEAL(S): Mr. Madeira suggested that both applications (A & B) be heard at the same time. Mr. Collier, attorney for the town, established that both properties are owned by the same entity and all present were in agreement for hearing A & B together.
A. OWNER(S): Camp Beech Cliff
AGENT: Fenton, Chapman, Wheatley and Kane, P.A.
LOCATION: 264 Beech Hill Road, Mount Desert
TAX MAP: 7 LOT: 89 ZONE(S): RW3/SR5/RP
PURPOSE: Setback variance request from Echo Lake for a proposed boardwalk along shoreline waterfront.
B. OWNER(S): Camp Beech Cliff, Inc.
AGENT: Fenton, Chapman, Wheatley and Kane, P.A.
LOCATION: 242 Beech Hill Road, Mount Desert
TAX MAP: 7 LOT: 91 ZONE(S): SR5
PURPOSE: Setback variance request from Echo Lake for a proposed boardwalk along shoreline waterfront.
CONFLICT OF INTEREST:
Mr. Suminsby was employed by Camp Beech Cliff in providing appraisals for the three structures located near the shoreline along Echo Lake. The appraisal of all three structures was a requirement for a Planning Board Meeting held on March 22, 2010, for the Reconstruction or Replacement of Non-Conforming Structures less than the required setback from a water body. Members of the Board did not feel that there was a conflict. It was noted that William Ferm had previously recused himself due to being on the Camp Beech Cliff Board of Directors.
DISCUSSION:
Camp Beech Cliff is a unique property on Mount Desert Island and to the Town of Mount Desert specifically in that it is the only camp on the island and that it is a non-profit educational facility geared particularly towards the outdoor education of children and their families. The 50 acre camp is all about getting kids outdoors and involved in nature programs, outdoor living skills, and craft/arts of a local flavor. An integral part of the camp takes place on the waterfront with swimming programs and recreational boating programs for sailing, canoeing, and kayaking. ALL the programs combine to educate children about the quality of life on the Island. The camp would not work anyplace else on the island.
Representatives for Camp Beech Cliff stated that the current pathway to the shore already has wood planking and that it was initially built in the 1950s. The planking has been periodically maintained over the years. The boardwalk was completed by 1958 to provide easy access through wet areas to the three buildings (boating cabin, waterfront activity base, and swimming cabin) on the shore area of the camp. At the time of construction, the boardwalk was not continuous; a dirt path on solid ground connected the boardwalk sections. This evidence was confirmed by Mr. Lee Patterson, a long time resident of the town who is familiar with the camp and who for many years has had to use a wheelchair for mobility.
The camp has received a $10 million gift to make improvements to the property and among the improvements Camp Beech Cliff proposes to make the boardwalk continuous to address several issues including, erosion on the dirt parts, life safety (allowing for emergency medical access in the event of injury or illness), and to meet Americans with Disabilities Act (ADA) requirements. As the path is currently structured, a handicapped individual does not have access to the three buildings along the shore. It was noted that the boardwalk would only provide access to the buildings, not the shore.
Rob Smedberg, Senior Project Manager for VHB, Inc. for Camp Beech Cliff stated that the three primary buildings looking to interconnect via the boardwalk are a critical element to the rest of the camp. The three buildings are being updated as part of the major renovations and walkway would allow for handicapped persons to access the buildings and activities held in the shore area.
Without the completed boardwalk, the driveway would be the primary access to move pedestrians to the shore area buildings. However, due to steep grades, (35% grade range) and undulations it is difficult and unsafe for handicapped persons to access the buildings along the shoreline. The camp has adapted accessibility by utilizing the existing walkway and combining it with dirt paths. Approximately 600’ of continuous 4’ wide plank walkway of varying heights is proposed.
Discussion ensued by board members to explore evidence of “Undue Hardship” needed in order for the town to grant a variance overriding the State (Department of Environmental Protection (DEP) law governing structures built within 75’ of a shoreline. Mr. Madeira recognized that a variance is needed due to the nature of the property as stated but pointed out that there were a total of four criteria to be met in order to activate the power of the board to permit the granting of the variance by the State of Maine.
4 tests to meet criteria:
1. Would the property be able to show a reasonable return without the variance? Mr. Collier, attorney for the town, read the section in Chapter 5 of the MMA Board of Appeals manual pertaining to the standard of “Reasonable Return” and was adamant that the standard for proof is very high and difficult to prove. He also warned that variances should be made very sparingly.
Mr. Walls is hesitant to take away from the DEP authority or to eliminate power from a State authority. He understands the ADA and safety issues raised by Camp Beech Cliff representatives.
A Camp Beech Cliff representative replied that their case for “Reasonable Return” and that their “hardship” is not the result of an action by themselves or a prior owner, but rather the result of Government imposed regulations after the Camp was well-established (both the ADA and DEP regulations). The Camp is trying to comply with the ADA regulations and provide for emergency access/life safety with minimal impact to the environment. (Without ADA approval the Camp will have to shut down uses of camp activities on the shore. Under federal law they must become compliant with ADA regulations if they make major improvements to the property and by making the improvements that the $10 million was gifted towards without becoming compliant they open themselves up for a lawsuit
based on discrimination: Handicapped children and staff will not be able to access the shore area buildings without the improvements to the walkway.) Furthermore, they would not be able to sell the property as a camp without the improvements because the new owner would have the same issue.
Mr. Madeira, while sympathizing with Camp Beech Cliff’s situation, said that variance law as it pertains to the Board does not make reference to issues arising from ADA regulations. He also asserted that an appeal hearing is not the place to make a change in the law. Mr. Madeira suggested that Camp Beech Cliff as an entity pursue the ADA matter with the Superior Court in Ellsworth.
Mr. Lauriat declared that a defense against the ADA compliance in the event of a lawsuit could fall under the design and construction of the boardwalk as structurally impractical in the sense that it is in violation of a State DEP law (minimum set back of 75’ from the water). A judge may or may not agree, but it is a defense. Given this interpretation, this is where he would stumble on voting to grant the appeal.
Mr. Suminsby stated that the argument of reasonable return under the Chapter 5 Board of Appeals Manual is not limited to a “monetary” return and that the cases Mr. Collier suggested in support of his position were not of similar nature to Camp Beech Cliff(i.e. they were residential or commercial, none were non-profit or educational).
Mr. Collier pointed out that the buildings located along the shoreline were not necessary to Camp Beech Cliff in order for them to show a reasonable return or to use the property in another way (for example, they could run a computer camp in another building and would not need the beech location). Mr. Collier reiterated that history and Maine case law set the bar very high in respect to an applicable change to the use of a property as it pertains to “reasonable return” standard.
Mr. Walls raised the issue of whether the camp could exist and function as a camp and outdoor educational entity without the shore facilities. Would changing the use of the camp provide a reasonable return on an established camp versus completely changing the character of the camp? Is there a viable market for a changed use of property in the zone which could produce a reasonable return, not limited to a monetary value? (i.e., Would a computer camp bring a reasonable return on the property use either monetarily or as a benefit to the community?)
When discussing the Department of Environmental Protection stance on the variance appeal, there seemed to be a difference in opinion from the two DEP representatives. Jessica Damon, DEP has been involved in the project from the beginning, and has made no mention about the proposed variance denial of the proposed boardwalk within the proposed location. However, Stephenie MacLagan, Bangor DEP writes a letter indicating that the Department of Environmental Protection believes that the appellant will not be able to show subjection to undue hardship, and therefore the variance request must be denied, pursuant to the appeals ordinance. How can two DEP representatives have two different opinions working for the same entity?
Mr. Madeira stated that the board is at an impasse on item one (1) and recognized that “we are dealing with a unique property and a unique use to the property” (no other camps on the island). If denied the variance, a no use area would sever the shore frontage. On an initial status check: Mr. Suminsby said he would vote yes to pass; Mr. Coombs said it would ruin the property to exclude the use of waterfront; Mr. Walls said he would vote yes for life safety reasons.
Mr. Suminsby put forth that there are some public access and other government properties (e.g., Jordan Pond in Acadia, Lower Geyser Basin and Fountain Paint Pots in Yellowstone, and various other State Parks (e.g., Baxter) and National Parks) that have put in boardwalks to allow people easier access in difficult terrain, combining accessibility with landscaping to stave off erosion or limit deterioration by the public while providing safety. He asks as an alternative solution and collaborative effort, would the DEP allow the existing boardwalk areas to be connected by “landscaping” the surfaces in between the existing boardwalks as a 4’ wide path similar in structure as the carriage roads in Acadia in order to maintain respect for the environment? This would mean that Camp
Beech Cliff would have to get a permit for fill instead of structure.
2. As the appeal relates to “Unique Circumstances” to the property – the board agreed unanimously that yes, it passes this criteria.
3. Would the proposed boardwalk alter essential character to the location of the property? The board agreed unanimously that the boardwalk would not alter the character of the property, except perhaps to improve it.
- Under the “Self-Created Hardship” standard, the board was not in agreement that the hardship is not due to the action of the owner. Mr. Madeira said it is due to the owner. Mr. Suminsby and Mr. Walls say it meets the criteria. Mr. Walls also stated that to maintain the existing walkway is a responsibility of the camp and should not be looked as an unnecessary improvement.
Mr. Chapman, legal counsel for Camp Beech Cliff, offered that the boardwalks existed long before the ordinance, that the current owners “inherited” the problem since the camp was doing business as camp before the government came up with the ADA regulations. The hardship is due to a mandate that comes from the ADA and that the camp is merely trying to comply with the ADA. Also, the condition of the camp is so deteriorated that if the camp is not renovated they will have to shut down in the next 5-10 years. If they do the renovations to maintain and improve the facilities without complying with the ADA mandate, they will most certainly be sued by campers or staff with disabilities.
Mr. Madeira again suggested Superior Court as a means for Camp Beech Cliff to override the law. He did not think that the Board has the ability to make an approval for a variance 38-43-53.
In summary, in order for Camp Beech Cliff to continue operating as an outdoor educational facility including the extensive water programs, they would need to renovate the walkway to allow handicapped and emergency access to the shore area buildings or risk a lawsuit for not conforming to ADA requirements. In order to comply with the ADA standards, they must have a variance to override the DEP regulation of a minimum 75 foot setback from the shoreline for any structure. The DEP was not in agreement regarding the variance and if approved would likely bring the matter to court.
Mr. Madeira stated that no matter which way the decision went, Camp Beech Cliff would most likely end up in court, either for the ADA issue or for the DEP issue.
Vote on each standard:
1. (Walls/Suminsby) 3-2 (No – Madeira & Lauriat)
2. (Suminsby/Walls) 5-0
3. (Suminsby/Walls) 5-0
4. (Coombs/Suminsby) 4-1 (No – Madeira)
Final Vote: (Walls/Suminsby) 3-2 (No – Madeira & Lauriat)
CONCLUSION: MOTION MADE AND SECONDED TO APPROVE THE APPLICATION AFTER CONSIDERING ALL THE EVIDENCE (BOTH ORAL AND WRITTEN) SUBMITTED BY THE APPLICANT AND ITS WITNESSES AND EXHIBITS. (Walls/Suminsby)
A VOTE WAS CALLED AND THE MOTION CARRIED (3/2).
For: Coombs, Suminsby and Walls Against: Lauriat and Madeira
MOTION made and seconded to state that the overall decision of the Board on the four (4) criteria of the “Undue Hardship” standard was based on the evidence submitted into the record. (Suminsby/Walls) MOTION CARRIED (5-0)
III. ADJOURNMENT: MOTION to ADJOURN made by Mr. Coombs; SECONDED by Mr. Walls.
The meeting was adjourned at 8:38 pm.
________________________ _________________________
Harry Madeira, Chairman Jerome Suminsby
________________________ _________________________
William Ferm George Lauriat Jr.
________________________ __________________
Kevin Walls Ernest Coombs
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Vacant
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