Town of Mt. Desert, Maine
21 Sea Street, P.O. Box 248, Northeast Harbor, ME 04662
ph: (207) 276-5531
Planning Board Meeting Minutes - 02/28/11
Mount Desert Planning Board Meeting Minutes
February 28, 2011

Public Present
David Burr, Katrina Carter, Shawn Murphy, Noel Musson, Brian Shaw, and Erin Gray

Board Members Present                   
Ellen Brawley, Chair; Robert Ho; Gerard M. Miller; and Joseph Tracy

Kim Keene, CEO; Claire Woolfolk, Recording Secretary


I.      The meeting was called to order at 6:00 p.m.

II.     Public Hearings

        Subdivision Approval Application(s):

David Burr & Holly Cozzi-Burr – 6 Gilpatrick Lane & 7 Maple Lane – land merger with abutters as defined in Title 30-A § 4401 (D) (6).

No conflict of interest was reported. No public comments were presented.  It was confirmed the notice was published in the Bar Harbor Times on February 16 and 23, 2011.  Ellen Brawley, Robert Ho, Gerard M. Miller and Joseph Tracy are the voting members for this hearing.  

The board confirmed that Sections 4.2.1-3 and 5 and 6 are unchanged from the May 2010 approved application and that everything remains exactly the same as when they were originally approved.  In addition the board had no conditions to place on the subdivision.

A MOTION TO APPROVE the Subdivision application of David Burr in Northeast Harbor as submitted MADE BY Mr. Ho; SECONDED BY Mr. Miller.

A VOTE WAS CALLED AND THE MOTION TO APPROVE the subdivision of David Burr and Holly Cozzi-Burr CARRIED UNANIMOUSLY (4-0).

The board members dated and signed the plats presented to complete the subdivision approval process.

III.    Conditional Use Approval Application(s):

Conditional Use Approval Application #002-2011
NAME:  A & E Investors, LLC
Aaron & Erin Gray
LOCATION:  121 Main Street, Northeast Harbor
TAX MAP:  24   LOT: 86   ZONE(S):  Village Commercial
PURPOSE: Section 3.4 - Restaurant
SITE INSPECTION:  4:00PM

No conflict of interest was reported. Ellen Brawley, Robert Ho, Gerard M. Miller, and Joseph Tracy are the voting members for this hearing.  It was confirmed the notice was published in the Bar Harbor Times on February 16, 2011.

Site Inspection was attended by Mr. Ho and Ms. Brawley and reported by Ms. Brawley.  The site is exactly as presented in the plan.  The owners of Pine Tree Market propose to initially put in about three tables and then perhaps expand to a 5 or 6 seating counter for a total of 15 seats.

No public correspondence had been submitted.  The application was amended by removing “This would be an off-season change only (Sept. – June)” so as to not limit the time that Pine Tree could have restaurant seating available to its customers.

MOTION TO APPROVE MADE BY Mr. Ho; SECONDED BY Mr. Miller.

Ms. Brawley asked if there was any discussion.  No discussion ensued.  The Standards of Section 6 of the LUZO, as amended May 4, 2010 were reviewed as follows: See attached checklist for CUA #  002-2011.

A VOTE WAS CALLED AND THE MOTION TO APPROVE CARRIED UNANIMOUSLY (4-0).

IV.     Section 4.3.3 – Non-conforming Structures – Reconstruction or Replacement

OWNER:  Brian D. Shaw
        LOCATION:  158 Pretty Marsh Rd., Mount Desert
TAX MAP:  17 LOT: 4
ZONE(S):  Shoreland Residential 2
SITE INSPECTION:  3:00PM

No conflict of interest was reported.  Ellen Brawley, Robert Ho, Gerard M. Miller and Joseph Tracy are the voting members for this hearing.  It was confirmed the notice was published in the Bar Harbor Times on February 16, 2011.

Site Inspection was attended by Mr. Miller and Ms. Brawley and reported by Ms. Brawley. From the site visit, it is quite clear that the lot does not lend itself to moving the structure anywhere.  The building footprint is both close to the road and to the pond.

There was no public correspondence, but CEO Keene did receive a call from Mr. Salvatore, abutter, asking for some information.  He was not in attendance.

A MOTION TO APPROVE the reconstruction/replacement was MADE BY Mr. Tracy; SECONDED BY Mr. Ho.

Ms. Brawley asked if there was any public discussion.  No comments from the public were forthcoming.  It is the opinion of the planning board that the proposed reconstruction will meet the required setbacks to the greatest practical extent.

  • No removal of vegetation
  • Maintains the existing footprint
  • Property boundary ends at the road
The Standards of Section 4.3.3 – Reconstruction or Replacement of the LUZO, as amended May 4, 2010 were reviewed as follows:

Section 4.3.3    Reconstruction or Replacement.  Any non-conforming structure which is located less than the required setback from a water body, tributary stream, or wetland and which is removed, or damaged or destroyed, regardless of the cause, by more than 50% of the market value of the structure, as determined by an appraiser, before such damage, destruction or removal, may be reconstructed or replaced provided that a permit is obtained within eighteen (18) months of the date of said damage, destruction, or removal, and provided that such reconstruction or replacement is in compliance with the water body, tributary stream or wetland setback requirement to the greatest practical extent as determined by the Planning Board or its designee in accordance with the purposes of this Ordinance.  In no case shall a structure be reconstructed or replaced so as to increase its non-conformity.  If the reconstructed or replacement structure is less than the required setback it shall not be any larger than the original structure, except as allowed pursuant to Section 4.3.1 above, as determined by the non-conforming floor area and volume of the reconstructed or replaced structure at its new location.  If the total amount of floor area and volume of the original structure can be relocated or reconstructed beyond the required setback area, no portion of the relocated or reconstructed structure shall be replaced or constructed at less than the setback requirement for a new structure.  When it is necessary to remove vegetation in order to replace or reconstruct a structure, vegetation shall be replanted in accordance with Section 4.3.2 above.

Any non-conforming structure which is located less than the required setback from a water body, tributary stream, or wetland and which is removed by 50% or less of the market value as determined by an appraiser, or damaged or destroyed by 50% or less of the market value as determined by an appraiser the structure, excluding normal maintenance and repair, may be reconstructed in place if  a permit is obtained from the Code Enforcement Officer within one year of such damage, destruction, or removal.

In determining whether the structure reconstruction or replacement meets the setback to the greatest practical extent the Planning Board or its designee shall consider, in addition to the criteria in Section 4.3.2 above, the physical condition and type of foundation present, if any.

Findings of Fact(s): Reconstruction will stay within the footprint of the existing structure.                                                                                           

Conclusion of Law:  The structure will meet the setback to the greatest practical extent.                                                                                               
VOTE:  Findings of Facts and Conclusion of Law  4-0     (Ho/Tracy)                      

A VOTE WAS CALLED AND THE MOTION TO APPROVE the reconstruction or replacement of the Shaw property CARRIED UNANIMOUSLY.  (4-0)


 V.    Planning Board Resignation:

Prior to the acknowledgement of the resignation of Patti Reilly, Ms. Brawley reported that Mr. Clunan suggested that the board give her a Leave of Absence until August.  (Ms. Reilly said her current job commitment would carry through at least until August.)  The rationale behind the Leave is to give the board time to find the right person to fill the vacancy.  It was discussed that currently, there is not an immediate need to fill her position.

Mr. Miller said he would only be willing to consider a Leave of Absence if she was actually planning to come back in August.  Planning Board members agreed to table the resignation of Planning Board Secretary, Patti Reilly to give her a chance to respond to their suggestion.

The board acknowledged that Ms. Reilly’s resignation had been put before the Board of Selectmen.  Mr. Miller said that the Planning Board could let the Board of Selectmen know that they have not accepted Ms. Reilly’s resignation until they hear back from Ms. Reilly regarding the offer of a Leave of Absence.

A MOTION WAS MADE to table the resignation Ms. Reilly has a chance to consider the offer of Leave of Absence by Mr. Miller; SECONDED BY Mr. Ho.

A VOTE WAS CALLED AND THE MOTION TO TABLE THE RESIGNATION CARRIED UNANIMOUSLY.  (4-0)


III.    Other Business

  • Harbor Master, Shawn Murphy, requested that the board to briefly discuss the town’s options to expand the existing dock structure in Northeast Harbor.  The dock currently exceeds the dimensional requirements set forth in the LUZO.  Upon review of Section 6.C.8, the board determined that since the dock is considered a public marine structure, it is exempt from the dimensional limits set forth in Section 6C.8.13.  Therefore, the plans to extend the dock may proceed.  
  • Approval of Draft Warrant Articles from the LUZO for the Town Meeting of May 2011.
The following draft warrant article languages were reviewed and approved by the planning board:

  • Shall an ordinance entitled “2011 Amendments to the Town of Mount Desert Land Use Zoning Ordinance to (readopt and) incorporate the 2006 updated State of Maine mandated Shoreland Zoning Guidelines” be enacted?
This is an article to reapprove the LUZO language that was approved in the Town Meeting last May (2010).

A  MOTION TO RECOMMEND PASSING THE ARTICLE WAS MADE BY Mr. Miller; SECONDED BY Mr. Ho.

The motion was opened for discussion.  No discussion ensued.

A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY.  (4-0)


  • Shall an ordinance entitled “ 2011 amendments to the Town of Mount Desert Land Use Zoning Ordinance to correct miscellaneous errors and inconsistencies with the State of Maine mandated Shoreland Zoning Guidelines” be enacted?
This article refers to the items which were dealt with in sections 2.11, 3.4, 3.5, 6.6, 7.5, etc.  Mr. Musson pointed out that he has extracted the specific wording pertaining to these changes into a separate document for this article to incorporate the changes referred to in the letter that was sent back to Department of Environmental Protection.

A  MOTION TO RECOMMEND PASSING THE ARTICLE WAS MADE BY Mr. Miller; SECONDED BY Mr. Ho.

The motion was opened for discussion.  No discussion ensued.

A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY.  (4-0)

  • Shall and ordinance entitled “2011 Amendment to the Official Land Use Map to revise the symbology of the Stream Protection District and to correct the zoning designation of lots within the State Mandated Shoreland Zone that are not currently zoned as being in the Shoreland Zone” be enacted?
Includes the DEPs mandated setback changes noted on pg. 3-15 pg in the LUZO.

A  MOTION TO RECOMMEND PASSING THE ARTICLE WAS MADE BY Mr. Miller; SECONDED BY Mr. Ho.

The motion was opened for discussion.  No discussion ensued.

A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY.  (4-0)

  • Shall an ordinance entitled “2011 Amendments to the Land Use Zoning Ordinance regarding Stormwater Management” be enacted?
This article pertains to the changes made to Section 6.A.7.

A  MOTION TO RECOMMEND PASSING THE ARTICLE WAS MADE BY Mr. Miller; SECONDED BY Mr. Ho.

The motion was opened for discussion.  Mr. Musson stated that since the changes are less than ten (10) pages, the language has to be pulled out and listed separately for the public to review.  It will be on display in the town office for anyone who wants to look at it.  

The wording will be in the warrant as well.  Mr. Musson also stated that when writing the warrant article language, you have to be descriptive; therefore he pulled the sections that held the changes the planning board made that he thought were worthy to describe the warrant and that there is another one that is broader and covers the miscellaneous items.

A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY.  (4-0)

  • Shall an ordinance entitled “2011 Amendments to the Land Use Zoning Ordinance regarding non-conforming lots under single ownership” be enacted?
This article pertains to the changes made to Section 4.5.3 where the planning board had made language existing is directed for properties on shoreland.  There are lots that are inland where this section would apply where they don’t have shore frontage.  This article corrects the language to follow the intent.  Also due to the size of the changes (less than ten pages), the language will be pulled out as in the article above.


A  MOTION TO RECOMMEND PASSING THE ARTICLE WAS MADE BY Mr. Miller; SECONDED BY Mr. Ho.

The motion was opened for discussion.  No discussion ensued.

A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY.  (4-0)

  • Shall an ordinance entitled “2011 Amendments to the Land Use Zoning Ordinance regarding access to back lots” be enacted?
This article pertains to sections of the LUZO referring to back lots, footnote “‘m” and the definition of Back Lots.

A  MOTION TO RECOMMEND PASSING THE ARTICLE WAS MADE BY Mr. Miller; SECONDED BY Mr. Ho.

The motion was opened for discussion.  No discussion ensued.

A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY.  (4-0)

  • Shall an ordinance entitled “2011 Amendments to the Land Use Zoning Ordinance to correct miscellaneous errors and inconsistencies from past ordinance amendments” be enacted?
This article refers to all the other amendments made to the LUZO that hasn’t been covered in the previous articles, except the new footnote “o”.   The language will be separated for public viewing as discussed above.

A  MOTION TO RECOMMEND PASSING THE ARTICLE WAS MADE BY Mr. Miller; SECONDED BY Mr. Ho.

The motion was opened for discussion.  No discussion ensued.

A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY.  (4-0)

  • Shall an ordinance entitled “2011 amendment to the Land Use Zoning Ordinance regarding setbacks from property lines in the Village Commercial District” be enacted?
This article refers to the new footnote “o”.  

A  MOTION TO RECOMMEND PASSING THE ARTICLE WAS MADE BY Mr. Miller; SECONDED BY Mr. Ho.

The motion was opened for discussion.  Mr. Musson said that the chart will appear much the same as what is currently attached with some minor editing.  In addition, this article will appear before the previous article (7) in the warrant.

A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY.  (4-0)


  • The board briefly discussed having a meeting with J. Collier, town attorney, to find a quicker way to go through the Section 6 Checklist for the purposes of expediting the public hearing process of CUAs.  It was agreed by board members that a meeting should take place.  CEO Keene will contact Mr. Collier to set something up.

IV.     The draft minutes from the February 7 and 14, 2011 meetings were unanimously approved as written.

A MOTION to approve the minutes from both the February 7 and February 14, 2011 meetings as written was MADE BY MR. MILLER; SECONDED by MR. HO.  APPROVED (3-0).  

V.      The meeting adjourned at 7:10 p.m.  The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, March 14, 2011 in the Meeting Room, Town Hall, Northeast Harbor.


Respectfully submitted,

ORIGINAL SIGNATURE ON FILE IN OFFICE.


Gerard M. Miller, Secretary Pro-temp