Planning Board - Regular Meeting

I can't comfortable. Boy do it. All right. I'll call to order the town of Mount Dessert Planning Board meeting for January 14th, 2026. And I'll kick it off by saying happy new year.

So, here we are. 2026 first hearing of the year. Welcome aboard. I'll kick it off with some introductions. I'm William Hanley. I'm planning board chair. We've got vice chair Tracy Loftess Keller. We've got Annne Dalton, Gail Marshall, and Alan Kimberly. So, you've got a full board here tonight. And um not seeing anybody out there in the Zoom world, so don't have to give the Zoom spiel. And hopefully everybody knows how to use Zoom by now. And Yeah, you're missing out. Um and uh let's let's get going here. Um you know, first item on the agenda tonight, other than calling to order is, you know, we've got some minutes to approve and um if I'm not mistaken, we've got minutes from November 12th.

The minutes and I forgot the Yes. November 12th and the 10th. December 10th. December 10th. Yeah, we we did approve uh December 3rd uh in a previous in these. So, all right. We had the special hearing on the third that Yep. I was not. But the other two are regular. Yes. I move approval. Second that of both. Of both. Of both. All right. All those in favor? I

opposed. There we go. We got the minutes out of the way. All right. Let's keep chugging through it. So, item three on the agenda tonight, we have section 4.3, nonconforming structures. And what section 4.3 non-conforming structures says is that um under 4.3.2, a non-conforming structure in the shoreland zone may be added to or expanded after obtaining a permit from the same permitting authority as that for a new structure. of such addition or expansion does not increase the nonconformity of the structure and is in accordance with the subsections of section 4.3.2 too. And was this one? Well, first I should ask, is there any conflict of interest on the board with this?

None here. None. None heard. So, was this advertised and a butters notified? Yes. Uh, it was advertised in the Mount Desert Islander on Thursday, January 1st, and it was uh went out to a letter notice went out to all Butters on December 30th, 2025. Thanks. So, we had a site visit at 3:30 today and Ann, would you like to share your observations?

Yes. So, Gail and Bill and I went to the site and we met Jeffrey and Ed there. Um, they showed us the area um that they're looking to um replace a glass window with a door. So, they are able to build the deck structure out from the door and have a stairway going down to the existing deck and then a stairway that'll go out to the lawn below it. The existing deck are also has a very wide staircase right now that um will be removed from the project and uh they'll be adding some stone steps off to the right side of the deck uh that goes down toward the front lawn and they'll also be removing a shed that is on the property. um removing the shed completely from the site. Um it's also going to be uh this area about maybe 1 in stone that they'll be replacing with some grass. Did I miss anything?

No, that's correct.

Right. And let me just um continue with the introduction of the the application here. I got a little ahead of myself, but um so excited about it. Um uh we've got Sailway LLC here tonight. The agent is Jeff Frasier from Frasier Associates Architects PC and the location is at 10 Ninfy Lane Mount Desert Tax Map 8 lot 152 and the zone is Shoreline Commercial and um Shorland Residential 3es. were here for a non-conforming structure and we had our site visit and just back to the site visit. Do you have anything to add, Gail? No, I think Ann hit all the points and with that I will turn it over to Mr. Frasier.

Well, I think we've said it all here. It's a pretty simple and straightforward project. Um it's generally about compliance and making sure that we're not increasing the lot coverage in terms of the town's zoning ordinance, which this project intends to actually reduce the lock coverage um by approximately a percentage and a half or so by the time we're done improving some of the non-veitated surfaces. the um the stairs that we're proposing to build and the landing that come out of the door um is a one for one trade for the existing stairwell coverage that's coming out of that. So there's no additional encroachment. We're not uh in terms of DP wetland setbacks uh there's no additional coverage within the D shoreland and the reduction in coverage in the town. Sorry per the per the same but um they're they're kind of stuck at 33% here and all none of these calculations included the shed which was um installed without permit. So that that we just ignored in terms of coverage completely but that does include all the paved gravel surfaces, stone improvements, retaining walls and things like that. So, um it's a it's a reasonably accurate accounting of what is is going on out there in terms of So, the stairwell allow um Mr. Miller and his family to be able to walk out of their house and onto their deck without having to come out go all the way around the house to get on the deck, which is both a safety concern and a and a convenience concern as well. So uh we also think the stairwell improve life safety of the house by providing a second means of escape directly from the dining and living room area secondary bonus to to having this done. So I think on the whole you know the project has no uh no detrimental effect

to the shoreland zoning and the town zoning and has a positive effect of life safety and access to the deck and yard for Mr. Miller and his family. Great. Thank you. Well, I guess with that, I'll open it for public comment.

All right. I am not seeing any public online or here. So, going once, twice. I'm gonna close public comment and let's get on with this. Um and but um before we do, I just want to get some context to it for the record that um Kim, my understanding is that you know we're in 432 and that the the DP is essentially saying this is an expansion, right? Yeah. have the packet. You have

in front of you to Jessica Sailor who's the shoreline coordinator at DE. I thought it might be a reconstruction, replacement, and relocation, but she says it's an expansion. So therefore, that's before you as an expansion. Yeah. But it's not going and what they're doing is is less um intrusive to the water body. If you look at plans, yeah, it's a better way out by removing those status that are out where where it's just an expansion. We're just going through the 432 checklist,

right? Which Yeah, which I have right here. So, they have two copies if anybody else wants to Oh, yeah. Yeah, great. We're going to have to share it because I got them on. Well, those are the motions. We want to go over here. That's it over here. We can share it. Thank you very much.

Yeah, that's just for the old Got it. All right. So, there's no vote for a short form checklist because we're using we have we're using this one. One of the few rare times we have a specific checklist. Um, you know, and it's the the non-conforming projects are always uh I don't know, a different ball of wax with every single application. So, it's always interesting navigating through these. But, um, uh, I think we're going to have a bit of reading time now as we wade through this. But um you so let's let's if you guys are all ready to drill down through this I say

do you want me to find the application complete? Let's first find the application complete. I move to find the application complete. Second to it. All those in favor? I All right. Now let's drill down through those. they move to approve it and then I don't know I don't we do that procedure with the non-conforming where we move to approve and then press the pause we don't with you didn't have to find it complete either yeah okay their conditional use yeah see it's like a roll the dice every time so um we want to strike that motion then

why don't we strike that so We're the record shows we're keenly aware of procedure oils ruled. I'm keenly aware that we need to revisit this section. That's what I I'm going to plead for that as a

I would say section the non-conforming section 4 is probably the most convoluted section we review but and it's again it's it's it's a different pathway for every application but okay story time um non-conforming structures and expansions in the shoreland zone this is section 4.3.2 Two, expansions in the shoreline zone. All new structures in the shoreline zone must meet the applicable shoreline setback requirements in section three and six. A non-conforming structure in the shoreline zone may be added to or expanded obtaining a permit from the same permitting authority. As for a new structure if such addition or expansion does not increase the nonconformity the structure and is in in coordinates with the subsections of 432. So let's go through these. I'm in subsection D. All other non-conforming principle and accessories structures do not meet the water body are okay. We just read that um EI for structures located less than 75 ft from the normal high water line water body tributary stream upland edge of the wetland. The maximum combined total footprint for all structures may not be expanded to an area greater than a th00and square feet or 30% larger than the footprint that existed on January 1st, 1989, whichever is greater. So the facts in this case, if I may,

are that there was no footprint in January of 1989, but the expansion is 122 square feet, which will be off offset by others. So it's far less than 1,000 square feet. Those are the facts as presented. Uh can you give me that footage again that it's increasing by? Sorry about 122 square feet. And and then there will be some removal. But if we're talking about just the stairs, because that's we're treating as an expansion, that's 122 feet. It will be offset by others. But I don't know that that's actually

it's a little more convoluted, I think, because there was an original home that was on the property and very close to the water and that was replaced by this project. Yeah, let me explain it. So, there was a house, like Jeff just stated, or a cottage that was on this lot, and it was uh reconstructed uh back in 2005. Mhm.

And in 2005, the 30% expansion rule is different than what it is today. So in 2005 um the 30% expansion if the building was was never added to as of January 1st of 89 was 30% either floor area or volume. So you had two criteria that you could either try to do both together or if you reached one you maxed out the 30% expansion like for volume or floor area. When this one was rebuilt, they had, I think, 65 cubic feet left for volume and then they had 286.17 square ft remaining of floor area, but now it's footprint. So what this so what this does is saying is that um they what they're doing is they're taking existing footprint and they're not increasing any by the proposal. So they're not adding any ideally new footprint if that makes any sense

kind of. But it would have been nice if this these facts had been in the application rather than coming through you. I was here to tell you. Yeah. Yeah. Okay. Okay. Because I was the one that did the permitting. Planning board did not because in 2005 that was under the jurisdiction as a code officer. So we're not even increasing this. for just kind of playing three cardi and shuffling the you're dead. You're shuffling around the footprint, but you guys get the queen every time. Right on that reserve. They haven't used yet. But and despite that, the D thinks it's still an expansion. That's why it's for you.

Yep. So as of January 1, 1989, what was the square footage that existed? Do we know the existing let's see existing was 134 square feet with eaves they were allowed 30% which was 391.2 so that was 1695.2 2 square ft and at the time they proposed 829 square ft 2005. Then they added that big deck on the front which took 580. So that left 218.717 square ft

of allowable coverage within the shoreland setback zone. Correct. while still under the 70% allowable lot coverage. No, it's not 70%. It's 20 because of that. When they added the deck,

when they added Yeah, but when they added when they rebuilt this and added the deck, the parking area and the driveway did not count towards lock coverage. That was added in 2009. So they'd see lot coverage today, but they did not at the time that they did this redevelopment. So well, they're not adding any new lock coverage. They're offsetting it as I was. That's why they were here is because they're removing the front stairs and rebuilding it to the side.

All right. We're not expanding the structure technically or numbers wise and we're not increasing the lock coverage and the new stairs are further away from the water source than the front. So it's no more nonconform. Right. Right. So technically we're decreasing the nonconformity by removing the stairs on the water body side. Oh, they're offsetting it for the same. Yes, we are decreasing the nonconformity in terms of the D because proximity to it is being reduced correct

from the water. So from the water correct the existing the existing uh 45.6 ft to the closest part of the water source and they're doing the rebuild. So it's 52.6 feet from the water source. So, it's not going to be closer and it's not going to be bigger overall. Right. And with the addition and with the replacement of the non-vegetative surface, right, we're actually reducing lock total lock coverage in terms of the town zoning regulation. So, we're getting closer to compliance, but there's no way outside of, you know, pulling up all the pavement or, you know, doing something drastic that we don't

we don't have to do that because how do you factor in the stairs that you want to build down along the side of the deck from the stairs that are there because the existing staircase that goes toward the ocean right now, including the the the concrete landing pads that are at the bottom are 144 square feet, right? And the stair deck is 122 and then the small stone steps which are coverage are another 20. So that's it equals zero by the time we're done. He's not not increasing it.

Okay. So then moving on to DII. Um structure is located less than 75 ft from a normal high water line. Uh the maximum height of the structure may not be greater than 20 feet. You're not changing the height of the structure. Correct. So I I I V and V do not are not applicable on lakes. Right. Right. I I I don't apply. This is an odd one. I'll say first one that's coming to the first one netting zero

that's good fortune to review um yeah so I I okay you're not yeah and then F any approved plan for the expansion non construction or 432 must be recorded by the applicant at the registry of deeds um within 90 days of approval. Don't forget that that's So do I'm sorry we haven't had to do that before. Do you know Bill whether what that record is? Is that a survey or is it No, it's your packet. Your packet the original needs to go to the registry.

Yeah. and talk to them before you go there because they're super specific about about the size of the prints and the and what they actually all that document digital. They still do. Yeah, they do. It's I think they do. And I I don't think um you can't bring like 13 by 19. I think it's like 11 by 17 is the max. Contact the Hancock before you go out. ask them what they're looking for as far as size. Yeah, but I know they want the documents that have been before. Yeah. And then it just decision

and the minutes I think too the the So the recorded plan must include the existing proposed footprint of the structure, the existing proposed height of the structures, the shoreline zone boundary and evidence of approval by the permitting authority. So that would mean both the planning board and CDP planning. Yeah. Yeah. No, you don't. You'll get a building permit from me. Okay. You don't need to send that. It's just what's before the planning board. DP us and your application. You don't need to include the height. I mean the height is only for changing the height.

Yeah. I would just Yeah, but you shown that on the elevation just submit that. Right. Well, then I guess we need some findings of fact and a confusion of law. Well, there you go. The findings of fact in this case are that 4.3.2 in requires that The app the expansion does not increase the nonconformity of the structure and is in accordance with the subsection 4.3.2 two. And

okay, and this does not increase the nonconformity because the location of

the new stairs would are is further away from the shore than the stairs that will be removed. And the new stairs will not be bigger overall than the existing stairs that will be removed. Seems that maybe the net coverage decreases and and in fact the plan indicates that the net coverage will the lot will decrease primarily by the removal of a section of gravel and

the shed. We're not counting that. The shed doesn't and replacement. Okay. Primarily because I'm sorry had it and I lost it. Sorry. um because of the removal of a section of gravel. Okay. And a return to vegetation

vegetation. Therefore, the provisions of 4.3.2 to heaven met. And do you want me to go on to D or include that in this one? Or you could say that you said that the provisions section 43.2 and the subsections thereof Yeah. have been met.

Right. Right. I can add probably put that in at the beginning. I think that's what she said.

Go ahead. You can read it if you want. Maybe we have Heidi. Yeah, Heidi, you probably read it. Uh the finding of fact was that section 4.3.2 requires that expansion does not increase nonconformity of the structure. And this does not because the location of the new stairs is further from the stairs that will be removed. Further from the shore from let's say from the water body. A water body. Further from the I'm sorry, you're right. The water body.

Okay. Uh and this does not okay doesn't increase nonconformity and this does not because the location of the new stairs is further from the water body. Um okay from the water body we don't need that will be removed. New stairs will not be bigger than the existing. Uh the plan indicates that net coverage um of the lot will decrease primarily because the removal of a section of gravel will and will be returned to vegetation. Um therefore the provisions of section 4.3.2 and subsections thereof have been met. I I feel like we could like maybe get a just an overall clear that there's no net increase in um in

law cover in law coverage and structure and nonconformity or there's no you say there yeah in footprint sorry in the structures footprint and there's technically a reduction in coverage in lock coverage. It's not getting bigger and there's less law coverage and however you want to mash those together. I don't know. But yes, you're right. Yeah. A decrease in lock coverage. Technically a decrease in lock.

Okay. So, are we merging this with the other one? I I I think we should kind of merge it with the other one. Okay. So, don't ask me how to Yeah, that's why we've got Heidi guiding us.

Okay. So, just rereading it. Section finding a fact section 4.3.2 requires that expansion does not increase the nonconformity of a structure. And this does not because the location of the new stairs uh will be further from the water body. The new stairs will not be bigger than the existing plan indicates net coverage of the lot will decrease primarily. Is there's anything I need to take out? Let me know too. Okay. indicates that uh net coverage of the lot will decrease primarily because of the removal of a section of gravel uh and returning it to vegetation. Therefore, the provisions of section 4.3.2 and subsections thereof have been met. There is no net increase of the structures footprint and technically a decrease in lot coverage.

That sounds fantastic. Well, I'd add sorry. Yep. I would add stairs and landing. Stairs and landing. What am I adding? You say just stairs because the location of the stairs and landing is further from the water body. Is that what you'd mean? Yep. Okay. You need to hear it again. Second. No. Someone make a motion. Uh Gail, that that's a motion. Yeah, I'll second that motion. That's technically a motion. Right. Any further discussion? None heard. All those in favor?

I opposed. All right. Do we need a final motion of approval or was that sufficient? Kind of feel like that was sufficient. Have any conditions or Yeah. Are there any permit conditions of this one? You did your conclusion. Yep. And no additions on approval. No. Make sure it's recorded. That's all. Y well that's why don't why don't we just celebrate and have a final go ahead and celebrate joy first meeting yeah let's let's I'm not sure where you want there are chocolates for move we approve the application I submitted

there you go second that all those in favor I opposed congratulations with an ordinance this bad this is the motion death that's not not ordinance in state I know I don't yeah I I don't care who birthe it but I do think we should look at it and figure out a way

I mean a user point of view it was extremely complic and and difficult to navigate exactly where we stood and I think moving forward Um, I wouldn't be surprised if a situation exactly like this didn't come up again given the change of use and the change to the the town zoning law and the coverage for those residential districts. Uh, one of the things I found, you know, that may need to be specifically addressed with non-conforming lot coverage that isn't specifically addressed within the body of that language, you have nonconforming structure and non, you know, non-conforming lots, but you don't have non-conforming coverage. So, that might be one to be looked at as to how you address that. The other suggestion I might have for the board would be that um to revisit the definition of lot coverage to uh specify um what it's in now is non-veitative surface and I think it should be clarified that what you're specifically talking about is manmade non-vegetative surface. Um, you know, I suppose if somebody be real asked about it, they could, you know, argue that, you know, existing signs that were there, non-veated surface and therefore could count as coverage. So anyway,

it is what it is. It could hurt too because we are on a rock and BP and their rules actually stayed they want you to count ledge that was there since 1990. You are. So they've already Yeah. But we're not I don't do that. Yeah. No. If that's the case, nobody would be able to build on that. Yeah. I mean I, you know, it it led has been there for two 24 million years.

I had I had some real empathy for Mr. Miller in this process because, you know, you know, we're really trying to improve this and it's a simple staircase that became a very difficult and honorous thing to get done and get through. Still is. And but um the the you know at the end of the day um you know he's he's inherited a problem right because of the change. I mean out of no fault of his own he's done nothing but he's now inherited a problem that he cannot in any way improve his property at all because of the situation that the zone he's in. And so I think that you know it there may be some consideration where where on your behalf moving forward where you know the state allows expansion within that setback area within that um to to think about whether or not people who inherit problems like these should be allowed a certain leeway or certain amount of provisions. you know, an expansion within that so to allow people to to to work and develop on properties that they purchased when they've inherited the problem exactly like this.

But, you know, again, I totally understand what you're doing here and why and I think it's the right and correct thing to do. Yeah. And as Kim pointed out, most of this is state law. Yeah. As I pointed out before you we turned the you arrive, I don't get migraines, but I make an exception for whenever I have to deal with a section four case. Um, and also, I mean, when people buy properties that have problems, it's sort of a buyer be aware thing. I mean, it's not like

totally understood. But what I'm what I'm getting at is here is that within the within the confine of the state levels, the homeowner still allowed an extension within that setback, right? The problem wasn't caused at the state level. The problem was mostly caused at the local level with the change from 70% lock coverage to 30 to 20%. Such a dramatic change to the lock coverage. and and I wouldn't be surprised at all if there are a number of other properties within the jurisdiction that fall into that category. So now any person that wants to do anything to their home after that point because of the local zoning law is is basically prevented from making any exits at all with their property that expand it in any way. And and so that's kind of what I'm what I'm saying might want. I'm not saying you should afterwards, you know, god damn it, I'm not eating up my table here.

But it does seem that, you know, there should be uh some some some path forward for people that come before you guys with a project like that where they've been handed a can of worms that might allow for some some expansion that allows them to improve their property in some fashion. because you may find in some cases where they really need to or have to for some reason a h an ADA ramp or something for example or for aging in place for elderly living or something where they need to add that coverage but now can't because of the change that the town act in ter in terms of the zoning block coverage. So that's that's the that's just my opinion and not you know

I appreciate that. It is it is what it is and thank you very much. Thanks. You're welcome. You're welcome. Thank you. Is there any other? None here. No. Motion to adjurnn. Second. Motion to adjurnn. Those in favor. There you go. Okay, I'll bet the end of February Dan and State Bar will be able to cover me while I'm gone.