Public Present
Noel Musson; Rob DeGennaro; Oka Hutchins; Winnie Miller; Nathan Miller; Debbie Musetti; Mike Musetti; Beth White
Board Members Present
James Bright, Chairman; James Clunan, Vice Chairman; Joseph Tracy; Patti Reilly, Secretary
Kim Keene, CEO
I. The meeting was called to order at 6:00 p.m.
II. Approval of Minutes from the January 31, 2008 Planning Board Workshop were postponed to the end of the meeting.
III. Public Hearings
Conditional Use Approval Application(s):
A. Conditional Use Approval Application # 012-2008
NAME: Windrose Properties, LLC
AGENT: Rob DeGennaro
LOCATION: 151 Main Street, Northeast Harbor
TAX MAP: 024 LOT: 073 ZONE(S): Village Commercial
PURPOSE: 3.4 Restaurant Outdoor Seating
SITE INSPECTION: 4:30 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 Mrs. Keene, Mr. Clunan and Mr. Bright. Mr. Clunan reported that the restaurant was known as Tan Turtle and located on Main St. The off street area on the South side had been decked over and fenced in for outdoor seating. Whether it was within the setback or not was questionable. The owner stated that previously waiting customers would gather out front on the sidewalk and he thought this would be more convenient for all.
There was further discussion as to the setbacks and it was determined that the fence was preexisting and only the deck and seating were in question. Mr. Bright stated the abutting homes were rentals and confirmed there had been no public comment.
Mr. DeGennaro, explained that there was a preexisting gravel patio for people to wait and chat etc. However, it became a hazard during the winter and to better accommodate for handicap access he built the deck. It was an afterthought that the deck would be a nice place to have a few tables and because they close at 10:00 PM noise shouldn’t be an issue. He also talked to the rear abutters Erica and Karen who thought it was a great idea. Mr. DeGennaro also contacted the abutting property owner’s manager, Mr. and Mrs. Black to ensure that they did not have a problem with the deck before the construction. He further explained how he felt it would be more of an asset and convenience than a nuisance and had no problem with additional time or noise restrictions should they be needed.
Oka Hutchins from across the street spoke to the benefits of the restaurant. She also pointed out that people generally expect it to be quite after 9:00 PM, though she has not had any problem with noise so far and doesn’t expect that there will be. Mrs. Hutchins also suggested that concerns stem form other disturbances in the area and suggested placing and additional condition to Conditional Use Approvals regarding outside seating that allows the approval to be revisited in the event that problems did arise.
There was further discussion regarding property lines and neighbor waivers.
MOTION TO APPROVE WITH CERTAIN CONDITIONS MADE BY MR. TRACY; SECONDED BY MR. CLUNAN.
The Standards of Section 6 of the LUZO, as amended May 6, 2008 were reviewed as follows:
CHECKLIST
for review of the
Land Use Zoning Ordinance of the Town of Mount Desert
(03/06/78, as am. through 05/6/08)
** Note: All Conclusions of Law are to be read as if they are prefaced by the words “Based upon said Findings of Fact …”
SECTION 6 STANDARDS FOR USES, PERMITS AND APPROVALS
6A GENERAL PERFORMANCE STANDARDS
6A. 1 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:
Findings of Fact(s):
• The area is a small trapezoidal area adjacent to the building.
Visual Impact:
Findings of Fact(s):
• Decking has been placed over the gravel to give it a more finished appearance.
Proximity to other structures:
Findings of Fact(s):
• The area is in close proximity to other structures because of the existing nature of the village.
Density of Development:
Findings of Fact(s):
• The area is in a densely developed area.
Conclusion of Law for s. 6A. 1 Compatibility: The proposed use will 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.
In particular, ______
______
(4/0) ______
6A. 2 Erosion Control
1. Filling, grading. Filling, grading … shall be conducted in such a manner to prevent, to the maximum extent possible, erosion and sedimentation.
Findings of Fact(s):
• The area is existing.
Conclusion of Law: Filling, grading, etc. will / will not be conducted in such a manner to prevent, to the maximum extent possible, erosion and sedimentation.
NA
_____________ (4/0)
2. Removal of sand or gravel. 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.
x N/A Applicable, Standard Met Applicable, Standard Not Met
3. Tilling of soil. 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 …
x N/A Applicable, Standard Met Applicable, Standard Not Met
6A. 3 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.
Findings of Fact(s):
• The area is located on Main Street NE Harbor.
• Customers walking in the area are removed from the sidewalk.
Conclusion of Law: The proposed use will / will 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. ___________________ ______
NA (4/0) ______
Sufficient off-street parking shall be available:
Findings of Fact(s): NA ______
______
Conclusion of Law: Sufficient off-street parking will / will not be available:
_____
NA _____
6A. 4 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.
Findings of Fact(s): _________________
___________
_____
Conclusion of Law: The proposed use of will / will not unduly burden the capacity of the Town's facilities. [In particular, an undue burden will be placed upon]
__________________
______
______ NA (4/0)
6A. 5 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 …
Findings of Fact(s):
________________________
Conclusion of Law: Proposed land use of will / will not be located on soils so as to not causing adverse environmental impacts, including severe erosion, mass soil movement, and water pollution, whether during or after construction.
NA _________________________ (4/0)
6A. 6 Lighting - Outdoor
N/A x Applicable, Standard Met Applicable, Standard Not Met
The application indicates candle-light lanterns and an exsisting light which is less than 100 watts.
__________________
6A. 7 Nuisances Notwithstanding any other standard in this section, the Planning Board shall not issue any Conditional Use Approval for any proposed use which if established would be obnoxious or offensive by reason of:
Odors; x N/A Applicable, Standard Met Applicable, Standard Not Met
Dust; x N/A Applicable, Standard Met Applicable, Standard Not Met
Smoke; x N/A Applicable, Standard Met Applicable, Standard Not Met
Gas; x N/A Applicable, Standard Met Applicable, Standard Not Met
Fumes; x N/A Applicable, Standard Met Applicable, Standard Not Met
Vibration; x N/A Applicable, Standard Met Applicable, Standard Not Met
Noise; N/A x Applicable, Standard Met Applicable, Standard Not Met
Outdoor lighting N/A x Applicable, Standard Met Applicable, Standard Not Met
Other x N/A Applicable, Standard Met Applicable, Standard Not Met
… nor for any use which would prove injurious to the safety and welfare of the neighborhood.
Findings of Fact(s):
• The area is part of an existing establishment.
Conclusion of Law: Under conditions that will be added to this CUP, nuisances will comply with this____ standard.
____________ (5/0)
6A. 8 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 3.4 and shall be in accord with the Comprehensive Plan.
Findings of Fact(s):
• A restaurant has occupied this location for more then 30 years.
Conclusion of Law: The proposed use will be consistent with protecting the general character of the Town, will be consistent with conserving the natural beauty of the area and will not tend to change the historical or cultural character of the neighborhood. Such use will be similar to a use specified as P, CEO or C in Section 3.4 and will be in accord with the Comprehensive Plan. In particular,
_____________________________________
(4/0)
6A. 9 Stormwater
x N/A Applicable, Standard Met Applicable, Standard Not Met
Findings of Fact(s): ______
______
______
______
Conclusion of Law: ______
______
______
(4/0) ______
6A. 10 Vegetation
1. Clearing. 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. Tree removal near town roads. 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 Approval of the Planning Board.
3. Slash. 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. Shoreland zoning. 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. CEO Permit. A CEO Permit is required for cutting timber larger than 4 inches in diameter measured 4 ½ feet above ground when the total amount to be cut is greater than 10 cords but less than 50 cords in any one year period.
6. Conditional Use Approval. Conditional Use Approval is required from the Planning Board for cutting timber larger than 4 inches in diameter measured 4 ½ feet above ground when the total amount to be cut is 50 cords or more in any one year period.
Findings of Fact(s): ______
______
______
______
Conclusion of Law: ______
______
______
NA (4/0) ______
6B SPECIFIC PERFORMANCE STANDARDS FOR ACTIVITIES AND LAND USES
6B. 1 Agriculture All spreading or disposal of manure shall be accomplished in conformance with the "Maine Guidelines for Manure and Manure Sludge Disposal on Land", published by the University of Maine and the Maine Soil and Water Conservation Commission, in July 1972.
x N/A Applicable, Standard Met Applicable, Standard Not Met
6B. 2 Air Landing Sites No air landing site shall be developed or used for such purpose without Conditional Use Approval of the Planning Board.
x N/A Applicable, Standard Met Applicable, Standard Not Met
6B. 3 Beach Construction Beach construction on any great pond, river, stream, brook, or coastal wetland shall require a permit from the State Department of Environmental Protection.
x N/A Applicable, Standard Met Applicable, Standard Not Met
6B. 4 Boat Storage No boat in excess of twenty four (24) feet length shall be stored or parked on any residential property within the Town except as such vessel shall be owned or be within the exclusive use or control of the property owner, and shall meet the setback requirements of the district in which the property is located, and in no event shall be stored or parked less than ten (10) feet from the rear line of said property.
x N/A Applicable, Standard Met Applicable, Standard Not Met
6B. 5 Campgrounds Campgrounds shall conform to the minimum requirements imposed under State licensing procedures and the following:
1. Minimum site size. Camping areas shall contain a minimum of five thousand (5,000) square feet of suitable land, not including roads and driveways, for each site.
2. Water setback. The area intended for placement of the recreational vehicle, tent, or shelter and utility and service buildings, shall be set back a minimum of seventy (75) feet from the normal high water mark of any pond, river, or salt water body as defined.
x N/A Applicable, Standard Met Applicable, Standard Not Met
6B. 6 Driveway Construction
x N/A Applicable, Standard Met Applicable, Standard Not Met
Findings of Fact(s): ______
______
______
______
Conclusion of Law: ______
______
______
(4/0) ______
6B. 7 Excavation or filling Excavation or filling shall be permitted in any district only to the extent such activities are essential or are incidental to any permitted, conditional, or other lawful use. Filling, dumping, or excavation of any matter of fifty (50) cubic yards or greater within a twelve (12) month period shall require a Code Enforcement Officer permit provided that there are no slopes in excess of 4:1 and the activity is more than one hundred (100) feet from the normal high water line of a waterbody. Excavation and filling, greater than fifty (50) cubic yards in a twelve (12) month period, with slopes greater than 4:1 or within one hundred (100) feet from the high water line of a waterbody shall require a Conditional Use Approval of the Planning Board. Appropriate measures
shall be taken to prevent erosion during or after the filling or excavation. All fill permits are approved for a twelve (12) month period only and expire twelve (12) months from the date of approval. The Code Enforcement Officer may renew either the Code Enforcement Officer permit or the Conditional Use Approval for additional twelve (12) month periods.
x N/A Applicable, Standard Met Applicable, Standard Not Met
Findings of Fact(s): ______
______
______
______
Conclusion of Law: ______
______
______
(4/0) ______
6B. 8 Fences and walls
x N/A Applicable, Standard Met Applicable, Standard Not Met
6B. 9 Fresh Water Related Structures
1. Access from shore shall be developed on soils appropriate for such use, and constructed so as to control erosion.
2. The location shall not interfere with existing uses.
3. The facility shall be located so as to minimize adverse effects on fisheries.
4. The facility shall be no larger in dimension than necessary to carry on the activity, and be consistent with existing conditions, uses, and character of the area.
5. Piers, docks, floats, wharves, breakwaters, causeways, marinas, bridges more than 20 feet in length, and permanent uses projecting into fresh water bodies from normal high water level shall require Conditional Use Approval of the Planning Board. The Planning Board may issue guidelines to insure compliance with state laws.
x N/A Applicable, Standard Met Applicable, Standard Not Met
Findings of Fact(s):
• The fence is existing.
Conclusion of Law: ______
______
______
NA (4/0) ______
6B. 10 Home occupations and home offices Home occupations and home offices (except those of a temporary or casual nature) shall require a permit from the Code Enforcement Officer to insure compliance with the following standards: …
x N/A Applicable, Standard Met Applicable, Standard Not Met
Findings of Fact(s): ______
______
______
______
Conclusion of Law: ______
______
______
______
6B. 11 Lots N/A
1. Lots abutting more than one road …
x N/A Applicable, Standard Met Applicable, Standard Not Met
2. Additional one family or two family dwellings …
x N/A Applicable, Standard Met Applicable, Standard Not Met
3. Shoreland Residential and Shoreland Commercial Districts …
x N/A Applicable, Standard Met Applicable, Standard Not Met
4. Minimum area suitable for development …
x N/A Applicable, Standard Met Applicable, Standard Not Met
5. Measurement of lots …
x N/A Applicable, Standard Met Applicable, Standard Not Met
6B. 12 Manufactured Homes Manufactured homes, or housing, as defined in Section 8, which are structures to be used for residential occupancy and which have a pitched shingle roof, a permanent foundation or masonry slab, piers or walls, and exterior siding of clapboard, cedar shingles, wooden or vinyl material that is residential in appearance are permitted.
x N/A Applicable, Standard Met Applicable, Standard Not Met
6B. 13 Marine Structure Performance Standards
x N/A Residential marine structure Commercial or public marine structure
Commercial and public marine structures are exempt from requirements 7 through 10.
1. Access from the shore to the marine structure shall be developed on soils appropriate for such use and measures shall be taken to minimize soil erosion both during and after construction …
Findings of Fact(s):
____________
Conclusion of Law: Access from the shore to the marine structure will / will not be developed on soils appropriate for such use and measures will / will not be taken to minimize soil erosion both during and after construction.
2. The location of the marine structure shall not unreasonably interfere with access to existing marine structures or points of public access, nor shall it unreasonably interfere with the use of other marine structures and landing places.
Findings of Fact(s): ______
______
______
Conclusion of Law: The location of the marine structure will / will not unreasonably interfere with access to existing marine structures or points of public access, and it will / will not unreasonably interfere with the use of other marine structures and landing places.
______
3. The marine structure shall be designed, sited, and constructed to minimize adverse impacts on significant wildlife habitats or unique natural areas including, but not limited to: fin fish and shellfish fisheries, salt marshes, eel grass beds, shorebird and nesting habitats, critical fish spawning and nursery areas.
Findings of Fact(s):
__________________
Conclusion of Law: The marine structure will / will not be designed, sited, and constructed to minimize adverse impacts on significant wildlife habitats or unique natural areas.
______
______
____________________________________________________________________________________
4. Interference with the natural flow of any surface or subsurface waters shall be minimized during the construction and subsequent use of the marine structure.
Findings of Fact(s): ______
____________
____________
Conclusion of Law: Interference with the natural flow of any surface or subsurface waters will / will not be minimized during the construction and subsequent use of the marine structure.
______
______
____________________________________________________________________________________
5. The marine structure shall be designed, sited, and constructed so as not to encroach upon officially designated navigation channels.
Findings of Fact(s): ______
______
______
Conclusion of Law: The marine structure is / is not designed, and will / will not be sited, and constructed so as not to encroach upon officially designated navigation channels. ______
______
____________________________________________________________________________________
6. The Planning Board shall request comment from the Harbor Master in cases where the applicant proposes to build a marine structure in an officially designated mooring area.
x N/A Applicable – comment requested
7. The marine structure shall comply with the dimensional limits listed below. The facility shall be no larger than necessary to accomplish the purposes for which it is designed. Its size and construction shall not change the intensity of the adjoining land use, and by no means shall exceed a total distance of more than one-third the width of the water body, when proposed for coastal or inland waters. Notwithstanding the dimensional limits below, in areas where the horizontal distance from the normal high water line to the mean lower low water is in excess of 160 feet, no permanent structure will be allowed seaward of the normal high water line.
Marine Structure Dimensional Requirement
Max. length of entire marine structure (i.e. pier, ramp and float combined) 225 feet 1
Maximum length of all permanent structures 150 feet
Maximum length of all non-permanent structures (i.e. ramp and float) 75 feet 2
Maximum width of pier walkway 6 feet
Maximum width of ramp 6 feet
Maximum square footage of floats 400 square feet
Max. square footage of floats for communal marine structures (see 8 and 9 below) 800 square feet
1 Or length needed to obtain six feet of depth of water at mean lower low water, whichever is less.
2 In cases where no permanent structure is proposed the applicant will be permitted to install a ramp and float extending no further than 75 feet into the water body.
Findings of Fact(s):
___________________
Conclusion of Law: The marine structural dimensional standards have / have not been met. The facility is designed for the purpose of . The facility will / will not be larger than necessary to accomplish the purposes for which it is designed. Its size and construction shall not change the intensity of the adjoining land use
______
______
____________
8. If two or more shorefront lot owners choose to share a communal marine structure the applicant may request additional square footage of floats.
x N/A Applicable, no request Applicable, request made
9. When proposed by the applicant, new subdivisions may provide a communal dock in lieu of the development of docks on individual lots. The applicant may request additional square footage of floats provided a demonstrated need can be shown.
x N/A Applicable, no request Applicable, request made
Findings of Fact(s): ______
______
______
Conclusion of Law: The applicant has / has not demonstrated that a need exists for additional square footage of floats. ______ ______
______
______
10. There shall be no more than one marine structure on a lot.
x N/A Applicable, standard met Applicable, standard not met
6B. 14 Mineral Exploration Mineral exploration to determine the nature or extent of mineral resources shall be accomplished by hand sampling, test boring, or other methods which create minimal disturbance. Approval of the Planning Board shall be required for mineral exploration that exceeds the above limitations.
x N/A Applicable, standard met Applicable, standard not met
6B. 15 Mobile Homes (temporary), Campers, Trailers and Recreational Vehicles No temporary or older mobile home, camper, trailer, or other recreational vehicle shall be used for human habitation unless it is in a campground or a trailer park which has been established in accord with provisions of this Ordinance …
x N/A Applicable, standard met Applicable, standard not met
6B. 16 Sanitary Standards
1. Availability of public sewer. 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 6A and the applicable standards of Section 6B are met.
x N/A
Applicable, but not within 200’
Applicable, is within 200’, but requirement waived
Applicable, is within 200’, connection required
______
______
______
2. State standards. All subsurface sewage disposal facilities shall be installed in conformance with the State of Maine Subsurface Wastewater Disposal Rules.
x N/A Applicable, standard met Applicable, standard not met
______
______
______
6B.17 Sign Regulations …
3. Signs Permitted: Temporary Signs:
x N/A Applicable, standard met Applicable, standard not met
______
______
______
4. Signs Permitted: Permanent Signs:
x N/A Applicable, standard met Applicable, standard not met
______
______
______
6B.18 Street/Road Design and Construction Roads shall hereafter be located, constructed, and maintained in such a manner that there is minimal potential for erosion. Adequate provision shall be made to prevent soil erosion and sedimentation of surface waters. Additionally, all roads constructed shall conform to the following standards …
x N/A Applicable, standard met Applicable, standard not met
Findings of Fact(s): ______
______
______
______
Conclusion of Law: ______
______
______
______
6B.19 Vehicles, Unregistered No more than two (2) unregistered and/or un-inspected vehicles may be stored on any residential lot, unless said vehicles cannot be viewed from any public way.
x N/A Applicable, standard met Applicable, standard not met
=============================================================
FOR BOARD USE
CONDITIONAL USE PERMIT/APPROVAL
PERMIT CONDITIONS: In addition to all applicable federal, state, and town permits be in place prior to any construction, the following conditions apply:
1) That new seating in the deck be terminated at 8 PM and the deck be cleared of customers to the best of_ the restaurants’ ability by 9 PM. __ _________
2) That seating on the deck be limited to ten persons. ______
3) That there be no music on the deck. ______
4) That a “setback” nullification letter from the abutter be provided to the CEO ______
5) That noise complaints validated by the police shall cause this permit to be reconsidered by the Planning_ Board. ____ _______________________ 6) That all necessary State approvals be obtained.
_____
A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (4/0).
Conditional Use Permits
B. Conditional Use Approval Application # 013-2008
NAME: Sarah Peter
AGENT: Civil Engineering Services
LOCATION: 95 Cooksey Drive, Seal Harbor
TAX MAP: 1 LOT: 2 ZONE(S): Shoreland Residential 2
PURPOSE: Section 3.4 Permitted, Conditional, and Excluded Uses by
District - Dwelling 1 & 2 Family (2) See definition: Single Family Dwelling/CUP- Health
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 no site inspection necessary.
MOTION TO APPROVE MADE BY MR. CLUNAN; SECONDED BY MR. TRACY.
After brief discussion the application was withdrawn by Noel Musson of CES, Inc.
IV. Subdivision Application(s)
Pre-Application – Sketch Plan
NAME: Michael C. Musetti
LOCATION: 49 Hall Quarry Rd., Hall Quarry
TAX MAP: 7 LOT: 1-1 ZONE(S): R2
PURPOSE: 6 Lot Subdivision
Mr. and Mrs. Musetti presented a preliminary sketch plan proposing a six lot subdivision in Hall Quarry. After some discussion the Board seemed suggested moving forward to the completeness review. The Musetti’s were advised that the next deadline for completeness submittal would be August 8, 2008, the review would be done at the August 25, 2008 meeting and the Public Hearing would be September 22, 2008.
V. Workshop
Development of the Board’s understanding of issues for the coming year including scenic vistas, GIS mapping and Subdivisions
IV. The draft minutes from the January 31, 2008 meeting were unanimously approved as amended.
V. Meeting adjourned at 9:05 PM. The next scheduled meeting/public hearing(s) is at 6:00 PM, Monday, July 28, 2008 in the Meeting Room, Town Hall, Northeast Harbor.
Respectfully submitted,
Patti Reilly, Secretary
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