Board of Appeals Meeting Minutes August 26, 2008

Return to Date-Selection Page

Board of Appeals Meeting Minutes
August 26, 2008
Great Cranberry Island Community Center

Attendance:
Kate Chaplin, Chairperson, Board of Appeals
Evelyn Boxley, Board of Appeals
Eve Harrison, Board of Appeals
Ted Spurling, JR, Board of Appeals
Matthew Worthen, Town Attorney
Nanette Hadlock, Deputy Clerk
Sally Rowan, Planning Board
Mike Westphal, Planning Board
Richard Beal, Board of Selectmen
Phil Whitney
Karin Whitney
Richard Pierson
Tom Watson
Leslie Watson
Marilyn Fredrickson
Karl Corley
Mary Corley
Barbara Stainton
Jennifer Westphal
Bruce Komusin
Beverly Sanborn
Stuart Silvers
Ruth Westphal

I. Call to Order: 3:08 P.M. by Chairman Kate Chaplin.
II. Review / Approval April 13, 2007 Meeting Minutes
Eve Harrison suggests that in Section V, Review / Approval of 12/18/06 Meeting Minutes, the following underlined phrase to be struck from the minutes:
Ms. Harrison also would like added to the record that “it is not her intention to trespass the centerline of the stream on the property. Her intention is not to trespass over the line.”
Ted Spurling moves to strike the phrase the centerline of the stream on the property. Her intention is to not trespass over the line from the Board of Appeals meeting minutes for 12/18/06, said minutes being previously reviewed and approved at the April 13, 2007 Board of Appeals Meeting. Evelyn Boxley seconds the motion. (3-0, with Eve Harrison abstaining) Motion passes.
The Board of Appeals does the second reading of the proposed by-laws. The approval of the first reading took place at the April 13, 2007 Board of Appeals Meeting.
Evelyn Boxley moves to accept the second reading of the proposed Board of Appeals by laws. Ted Spurling seconds the motion. (4-0) Motion passes.
III. Review Administrative Appeal
Eve Harrison
Tax Map 10, Lot 25
Tax Map 10, Lot 26
Great Cranberry Island
Water Dependent Commercial / Residential District
Single Family Residence

A decision was made by the Cranberry Isles Planning Board on July 02, 2008 to deny a single family residence building permit for Eve Harrison, in the Water Dependent Commercial / Residential District. The reason for the denial is that the proposed residence exceeded the 20% maximum lot coverage for a residential building.
Ms. Harrison has filed an administrative appeal with the Cranberry Isles Board of Appeals by letter, dated July 31, 2008. Ms. Harrison appeal requests that “the Board of Appeals reverse the decision of the Planning Board that lot coverage can only be calculated based on the upland part of the lot. The letter of Appeal asks the Board of Appeals to remand the matter back to the Planning Board with instructions to allow 70% lot coverage.
The letter also requests that the Board of Appeals allow the applicant to amend her application to the Planning Board by providing a more detailed storm water plan, to move the residence so it is entirely in the upland part of the lot, and to allow a structure, accessory to dock, to encroach on wetland, as permitted.
Ms. Harrison “challenges the Planning Board Members ability to conclude that soils are unsuitable for building simply because ‘it is partially situated in a wetland’” and asks the Appeals Board “to allow the opinions of professional evaluators at the Department of Environmental Protection (DEP) and Army Corp of Engineers (ACOE) to be a more appropriate and expert opinion as to soil suitability and to allow construction of an accessory dock and boat storage facility to encroach on wetland only so far as permitted by the Shorelands Ordinance of Cranberry Isles, the D.E.P., and A.C.O.E.”, as stated in her Notice of Appeal letter received at the Cranberry Isles Town Office on July 31, 2008.
A meeting for the appeal was posted on Islesford and Great Cranberry Island, as well as advertised in the Mount Desert Islander newspaper.
Four of the five Board of Appeals Members were present at the meeting. Eve Harrison recused herself at this point in the meeting due to conflict of interest as the appellant in this hearing. Three members of the Board of Appeals still reside for the hearing, which constitutes a quorum. By request, Matt Worthen, Town Attorney for Cranberry Isles was present. Two members of the Planning Board were present, as well as Selectman Richard Beal. The minutes were recorded by Deputy Town Clerk, Nanette Hadlock, as well as by voice recording which is on file at the Town Office.
The Appeals Board has jurisdiction “to hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by, or failure to act by, the Code Enforcement Officer or Planning Board in the enforcement or administration of this Ordinance.” (Section XII, Administration, subsection G, of the Cranberry Isles Land Use Ordinance for the Shorelands).
Eve Harrison is the owner of Tax Map 10, Lot 26, and has an abstract of purchase and sale agreement for a portion of Tax Map 10, Lot 25 from Tom and Leslie Watson.
The Board of Appeals deems that the application for appeal is complete.
Eve Harrison presented her case, basing her appeal on the fact that because a dock by nature is water dependent, it is a “water dependent facility”. Ms. Harrison claims that this feature in combination with a residence makes the property mixed use by definition. Mixed use would allow a 70% lot coverage. Ms. Harrison plans to store recreational boats and boating equipment at the residence. She also cites two opinions by Maine Municipal Association’s legal services, (dated 07/13/06 and 07/13/07) that the “Lot Area” is ambiguous by definition in the Land Use Ordinance, and that therefore the entire lot should be used to calculate maximum lot coverage, not just the upland portion. Ms. Harrison also requested that the science prepared by the DEP and the ACOE in determining the appropriateness of soils. She asked that the Board of Appeals allow her to re-apply to the Planning Board with a different plan, a sketch of which she presents for the first time at today’s hearing.
Today’s meeting is declared a De Novo Evidentiary Hearing by Chairman Kate Chaplin.
Members of the audience were permitted to ask questions and make comments on the appeal. It was pointed out by Planning Board Member, Mike Westphal, that on October 13, 2005, Ms. Harrison who at the time was serving as Chairman of the Board of Appeals, “pointed out that in § X., ¶ 1 & 2 of the Land Use Zoning Ordinance, when determining coverage, the lot size can only include land above the upland edge of a wetland area”, {10/13/05 Board of Appeals Meeting Minutes, Section III, B, 2 (b)}. Mr. Westphal also states that the primary purpose of the proposed structure is a residence, not a marine related facility.
Making a decision: It is pointed out that the residence is the subject of the permit which was denied by the Planning Board, so the previously permitted dock is irrelevant in determining mixed or residential use. In Section VII, F of the Land Use Ordinance for the Shorelands, Functionally Water Dependent Commercial / Residential Zone’s purpose is: “To provide for the development of commercial uses that are functionally water dependent and associated with traditional fisheries and maritime activities. Low density residential development is also allowed in recognition of the existing mixed pattern of development in those areas of commercial fisheries and maritime activities.” It is apparent that mixed refers to a combination of commercial and residential use in one property. The building is not water dependent, it’s residential. The dock is an accessory structure.
To consider the use of the whole lot defeats protecting wetlands, as the ordinance consistently promotes protection of the wetlands where possible. The DEP permit is subject to local approval. Section IX, E, 2 of the Land Use Ordinance defines the maximum area of lot covered by buildings, including accessory buildings, parking lots and other non-vegetated surfaces: 70% for functionally water dependent uses, 70% for mixed use, 20% residential use. If wetlands weren’t of interest to the designers of the ordinance and that they wished to use the entire lot for establishing coverage, they wouldn’t have attempted to distinguish between the two. There is
11, 084 square feet of upland, which calculates to 21..9% of the upland proposed for the Harrison residence. Section XIV, page 36, of the Land Use Ordinance defines Lot Area as the area of land enclosed within the boundary lines of a lot, minus land below the normal high-water line of a water body or upland edge of a wetland and areas beneath roads serving more than two lots. An 06/30/2008 letter from Town Attorney Matt Worthen of Eaton Peabody states that “to divorce the definition of “lot area” from “area of lot” would create unnecessary instability in interpretation of the Town’s Ordinance.”
2008 State Planning & Land Use Laws (Page 134) determines functionally water-dependent uses to mean those uses that require, for their primary purpose, location on submerged lands or inland waters and that can not be located away from these waters. These uses include commercial and recreational fishing and boating facilities, excluding recreational boat storage buildings, finfish and shellfish processing, fish storage and retail and wholesale marketing facilities, waterfront dock and port facilities, shipyards and boat building facilities, marinas, navigation aids, basins and channels, retaining walls, industrial uses dependent upon water-borne transportation or requiring large volumes of cooling or processing water that cannot reasonably be located or operated at an inland site and uses which that primarily provide general public access to marine or tidal coastal or inland waters.
Ms. Harrison has stated that the dock could stand alone without the residence. The dock can be accessed from the road by the previously Code Enforcement Officer (C.E.O.) permitted driveway. The dock is C.E.O. permitted as temporary which is defined as structures which may remain in the water for seven (7) months in any period of twelve consecutive months, (Page 37, Land Use Ordinance for the Shorelands). The dock is intended by the applicant for private use. The Land Use Ordinance consistently promotes wetland protection wherever possible. It is further pointed out that if wetlands weren’t of interest to the designers of the ordinance and that they wished to use the entire lot for establishing coverage, they wouldn’t have attempted to distinguish between the two.
The Applicant’s DEP and ACOE permits state that the permits do not constitute or substitute for any other required state, federal or local approvals nor does it verify compliance with any applicable shoreland zoning ordinances.
As for Ms. Harrison’s request that she be allowed by the Board of Appeals to amend her application to the Planning Board, the Board of Appeals does not have jurisdiction to give permission for the applicant to submit revised plans to the Planning Board. It is up to the applicant to submit to the proper authority. Today’s decision will be based on the appeal of the Planning Board’s decision for the original application.
Section IX, Area, Setback and Coverage Minimums
Land Use Ordinance for the Shorelands, Town of Cranberry Isles
Subsection E, Water Dependent Commercial / Residential District

1. Minimum frontage on abutting shore: on shore 75 feet
Proposed: 130 feet
Ted Spurling moves that the application meets the requirement. Evelyn Boxley seconds the motion. (3-0) Motion passes.
2. Maximum area of lot covered by buildings, including accessory buildings, parking lots and other non-vegetated surfaces: 70% for functionally dependent uses, 70% for mixed use, and 20% residential use
Proposed: 36%; dwelling is the primary purpose of application, temporary dock is an accessory structure.
Ted Spurling moves to uphold the Planning Board decision that the application does not meet the 20% requirement for maximum area of lot and is not considered mixed use. Evelyn Boxley seconds the motion. (3-0) Motion passes.
3. Setbacks for buildings (except for functionally water dependent uses)
- from normal high water, 100 feet
- from center line of town roads, 25 feet
- from any other property lines, 25 feet

Evelyn Boxley moves that the application meets the requirement for setbacks. Ted Spurling seconds the motion. (3-0) Motion passes.
4. Minimum distance between principal buildings on the same lot: 150 feet
Ted Spurling moves that this requirement is not applicable. Evelyn Boxley seconds the motion. (3-0) Motion passes.
5. Height restriction for principal and accessory structures: 2½ stories, no part higher than 40 feet
Proposed: 36 feet overall
Ted Spurling moves that the application meets the requirement for height restriction. Evelyn Boxley seconds the motion. (3-0) Motion passes.
6. Parking setbacks for functionally water dependent uses, 25 feet from normal high water
Ted Spurling moves that the requirement for parking setbacks is not applicable to the application. Evelyn Boxley seconds the motion.
7. Minimum frontage for residential uses shall be 200 feet on the abutting shore
Kate Chaplin moves that the requirement for minimum frontage on abutting shore is not applicable to the application. Evelyn Boxley seconds the motion. (3-0) Motion passes.
8. Minimum lot size for residential uses shall be 1 acre
Proposed: This is a non-conforming lot of record.
Kate Chaplin moves that the minimum lot size for residential use is not applicable. Evelyn Boxley seconds the motion.
(3-0) Motion passes.
Section XI, Land Use Standards
Land Use Ordinance for the Shorelands, Town of Cranberry Isles

A. Agriculture
Proposed: No agricultural activity is planned.
Ted Spurling moves that the standard for agriculture is not applicable for the application. Kate Chaplin seconds the motion. (3-0) Motion passes.
B. Beach Construction
Kate Chaplin moves that the standard for beach construction is not applicable for the application. Evelyn seconds the motion. (3-0) Motion passes.
C. Campgrounds and Individual Campsites
Kate Chaplin moves that the standard for campgrounds and individual campsites is not applicable for the application. Evelyn Boxley seconds the motion. (3-0) Motion passes.
D. Clearing of Vegetation
Proposed: minimal clearing of vegetation is planned.
Ted Spurling moves that the application meets the standard for clearing of vegetation. Kate Chaplin seconds the motion. (3-0) Motion passes.
E. Erosion and Sedimentation Control
Proposed: erosion and sedimentation plan is included
Ted Spurling moves that the application meets the standard for erosion and sedimentation control. Kate Chaplin seconds the motion. (3-0) Motion passes.
F. Mineral Exploration and Extraction
Kate Chaplin moves that the standard for mineral exploration and extraction is not applicable for the application. Ted Spurling seconds the motion. (3-0) Motion passes.
G. Piers, Docks, Wharves, Breakwaters, Causeways, Marinas, Bridges over 20 feet in length, and Uses Projecting into Water Bodies
Proposed: application is for a building only; temporary dock was previously permitted by the C.E.O.
Kate Chaplin moves that the standard is not applicable for the application. Evelyn Boxley seconds the motion. (3-0) Motion passes.
H. Road Construction
Proposed: application is for a proposed building only; driveway was previously permitted by the C.E.O.
Ted Spurling moves that the standard for road construction is not applicable for the application. Kate Chaplin seconds the motion. (3-0) Motion passes.
I. Signs
Kate Chaplin moves that the standard for signs is not applicable for the application. Evelyn Boxley seconds the motion. (3-0) Motion passes.
J. Storm Water Runoff
Proposed: No storm water runoff plan was submitted with the application, and no storm water runoff plan is available for review with the appeal.
Evelyn Boxley moves that the application does not meet the standard for storm water runoff. Kate Chaplin seconds the motion. (3-0) Motion passes.
K. Septic Waste Disposal
Proposed: Septic is already approved by the Plumbing Inspector and installed.
Kate Chaplin moves that the standard for septic waste disposal is not applicable for this application. Evelyn Boxley seconds the motion. (3-0) Motion passes.
L. Essential Services
Ted Spurling moves that the standard for essential services is not applicable for this application. Kate Chaplin seconds the motion. (3-0) Motion passes.
M. Timber Harvesting
Proposed: None shown.
Kate Chaplin moves that that the standard for timber harvesting is not applicable for the application. Evelyn Boxley seconds the motion. (3-0) Motion passes.
N. Soils
Proposed: Previously permitted septic permit contains a soils suitability report.
Ted Spurling moves that based on the completed and approved HH200 form that the application will not adversely affect soils. Kate Chaplin seconds the motion. (2-1) Motion passes.
O. Water Quality
Proposed: HH200 form is complete with application for subsurface waste disposal.
Kate Chaplin moves that with the septic system in place and well that this will not adversely affect water quality. Ted Spurling seconds the motion. (3-0) Motion passes.
P. Archeological Sites
Proposed: No archeological site identified on the property at this time.
Ted Spurling moves that the standard for archeological sites is not applicable for the application. Evelyn Boxley seconds the motion. (3-0) Motion passes.
Section XII, Administration
Subsection D, Performance Standards

1. Will maintain safe and healthful conditions
Ted Spurling moves that the proposed construction will. maintain safe and healthful conditions. Kate Chaplin seconds the motion. (3-0) Motion passes.
2. Will not result in erosion or sedimentation
Ted Spurling moves that the proposed construction will not result in erosion or sedimentation. Kate Chaplin seconds the 2. Will not result in water pollution
Evelyn Boxley moves that the proposed construction will not result in water pollution. Ted Spurling seconds the motion. (3-0) Motion passes.
3. Will not have an adverse impact on spawning grounds, fish, aquatic life, bird, or other wildlife habitat
Ted Spurling moves that the proposed construction will not have an adverse impact on spawning grounds, fish, aquatic life, bird, or other wildlife habitat. Kate Chaplin seconds the motion. (3-0) Motion passes.
4. Will conserve shoreland vegetation
Ted Spurling moves that the proposed construction will conserve shoreland vegetation. Kate Chaplin seconds the motion. (3-0) Motion passes.
5. Will conserve visual points of access to waters as viewed from public facilities
Ted Spurling moves that the standard for conserving visual points of access to waters as viewed from public facilities is not applicable to the application. Evelyn Boxley seconds the motion. (3-0) Motion passes.
6. Will conserve actual points of public access to waters
Ted Spurling moves that the standard for conserving actual points of public access to waters is not applicable to the application. Evelyn Boxley seconds the motion.
(3-0) Motion passes.
7. Will protect archaeological and historic resources as designated in the comprehensive plan
Kate Chaplin moves that the standard for archaeological and historic resources as designated in the comprehensive plan is not applicable to the application. Ted Spurling seconds the motion. (3-0) Motion passes.
8. Will not adversely affect existing commercial fishing or maritime activities
Kate Chaplin moves that the proposed construction meets the standard for not adversely affecting existing commercial fishing or maritime activities. Ted Spurling seconds the motion. (3-0) Motion passes.
9. Will avoid problems associated with flood plain development and use
Kate Chaplin moves that the proposed construction meets the standard for avoiding problems associated with flood plain development and use. Ted Spurling seconds the motion. (3-0) Motion passes.
10. Is in conformance with the provisions of Section XI, Land Use Standards
Kate Chaplin moves that the proposed construction is not in conformance with the provisions of Section XI, Land Use Standards. Evelyn Boxley seconds the motion.
(3-0) Motion passes.
A storm water runoff plan is requested from the applicant.

Based on the above evidence it is the opinion of this Board that it uphold the decision of the Planning Board made July 02, 2008 that the building permit be denied based on the fact that the residence does not fall under the mixed use criteria which allows maximum coverage of 70%, and therefore must be restricted to 20% coverage of the upland only in order to conform. Ted Spurling seconds the motion. (3-0) Motion passes.
IV. Old Business
None addressed at this time.
V. Adjournment: 5:53 P.M.
Kate Chaplin moves to adjourn the meeting. Evelyn Boxley seconds the motion.
(3-0) Motion passes.

Return to Date-Selection Page