Is Mount Desert planning board catering to summer folks, and neglecting the law?
Its own attorney warns against subjective opinion instead of applying 'standards'
NORTHEAST HARBOR - A year after 205 mostly summer residents signed a petition opposing six units of workforce housing in the village and six months after the first of several public hearings and meetings, the Planning Board sent a strong signal last week that it would approve no more than five.
In doing so, it drew several admonitions from its attorney to avoid personal opinion and to make the decision based on standards as outlined in the town’s land use ordinance.
The board gave the attorney for the applicant, the non-profit Mount Desert 365, until Oct. 5 to reply to its suggestion which one member characterized as a compromise. The board will review the matter Oct. 11.
“We need workforce housing, and this is where 365 owns the lot. This is where they're proposing to put it,” said vice chair Meredith Randolph. “We are here to listen and to try to create peace within our town. Just not have everything go to court.”
MD 365 owns three other lots on Neighborhood Road, totaling 2.75 acres. Applying the same math used by the Planning Board for the five units, MD 365 could lose four affordable housing units from its overall objective.
It’s been almost 20 years since citizens approved a cluster and workforce housing amendment to the town ordinance to relax density requirements so affordable year-round homes may be built.
The action taken at the 2004 Town meeting was by voice vote which indicated that there was very little opposition. Moreover, 526 voters attended that meeting, or about 25 percent of the electorate. It was at a time when the town still had a healthy population of year-round residents.
But even in 2004, there were indicators that things were changing. The 2003 town Comprehensive Plan concluded:
“For very low, low, and moderate income households, Mount Desert’s housing and rental markets are not affordable, and housing prices and rents have been increasing in Mount Desert in recent years. Housing costs are significantly more than even average residents are able to afford. The lack of affordable housing has created problems in attracting a labor force, and has strained the transportation system as more workers move out of town and off the island.”
Now comes PB v2023 to question the intent of that legislation which prompted board attorney Andy Hamilton to warn members multiple times Wednesday night to make the decision based on “quantitative standards” instead of subjective views.
The board chair, a residential architect whose office is on Neighborhood Road, evinced sympathy for summer residents whom, he said, wrote, “my gosh, 50 plus letters” to protest the density of the project.
Chair Bill Hanley even apologized twice that his comments would run afoul of the board’s attorney Hamilton, who reminded members several times to apply the “plain language” of the ordinance instead of straying into amorphous personal interpretations.
“I don't care how many letters you get,” Hamilton said. “I don’t care what volume of evidence you have. The key question is how to apply these standards to this application.”
The meeting highlighted the challenge of small towns to tackle the housing crisis, as even the most microscopic proposal to effect year-round housing is met with well-financed opposition, driving discussions into a battle of trivial pursuits.
Wednesday night, Planning Board members were obsessed with whether six units of workforce housing proposed in the village was “compatible” with the neighborhood, an entirely different question beyond the scope of the board’s responsibility, as stated by its attorney.
The meeting room was once again dominated by summer residents with another equally large group of attendees (35) on Zoom.
Chair Hanley continually played to this audience and Hamilton continually urged the board to stick with the standards adopted 19 years ago at Town Meeting.
Hanley said, “I don't know in the broad terms of the planning board's task of representing the residents of this town, how we can say that that kind of that number of people on a lot that size is compatible with the district it's in.”
To which Hamilton replied:
“I don't think it's whether you need to be representative of the community like the Select Board needs to be because they’re the ones that are elected. You're appointed to do the job of applying the standards to the application.” (The select board is elected by registered voters of which summer residents make up a small minority.)
He added that compatibility is “a very subjective standard and the law court has been very clear. Don't use things like qualitative and subjective standards that would allow you to substitute your judgment for the legislative body.
“So the fact you're down to density of development and you're in the quantitative space. I think that's a good place to be.”
Hanley said, “I'm on Neighborhood Road year round. I see the ebb and flow of it. I see all the good, bad and the ugly, and it's all mostly almost all good. And when I look at the context of this application in that district, I am not seeing this kind of density anywhere.”
Neighborhood Road is an anomaly in that it is the least developed street in the village with several large, open lots, including the ball field for the school. The density just a block away on Summit Road and Lookout Way tells a different story.
And what does “compatibility” mean exactly? A private club may restrict its membership to people who are compatible but how does a public street define it?
And does compatibility change over time? Fifty years ago, the neighborhood was dominated by year-round residents. Were seasonal residences compatible with the neighborhood then?
Hanley wasn’t the board’s only member to get Hamilton’s warning.
“When there isn't any real clear direction I think you take a conservative approach,” said member David Ashmore.
“The ordinance doesn't say that,” Hamilton reminded him. “That's just your philosophy. And that's okay. Personal philosophies enter into this, I guess, but I think you've got to apply the standards in the application.”
There is no more authoritative legislative body in town than the annual town meeting.
Nineteen years ago, it put down standards to relax density to encourage more year-round and workforce housing.
The state legislature joined the party this year when it enacted LD 2003, which went into full effect July 1.
Among other things, the law forbids any Maine town from enacting single-family-only zoning. You may now add another house or wing on your lot as long as you have sewer service. That has the potential to reshape the housing stock in Bar Harbor, Northeast Harbor and Southwest Harbor.
One section allows a developer to build 2.5 times the number of units under current local rules for a development designated as affordable.
It also encourages more than one accessory unit - like a “grandmother’s cottage” - per lot and rewards municipalities seeking to promote workforce housing by allowing more “bonus density.”
So the Planning Board, which is not a legislative body, is swimming against public sentiment. Hamilton pointed out that the town’s density amendment actually would allow MD 365 to build 6.9 units and it down shifted to the more conservative round number of six.
The petition objecting to MD 365’s “Heel Way” project at Manchester and Neighborhood roads was sent to the Planning Board last September even before an application was filed.
But it has been far from a one-sided issue, as represented by Hanley. He did not mention that a counter petition by 244 signatories, including two select board members sitting directly in front of him Wednesday night and his latest Planning Board colleague Gail Marshall, the town manager and many prominent year-round residents, was launched on Jan. 2, 2023.
93-year-old Don Cote charged with criminal mischief
SOMESVILLE - 93-year-old Don Cote was arrested last week and charged with criminal mischief after destroying “no trespassing” signs erected by the owner of his property.
Cote was charged Friday and ordered to appear Nov. 21 in Hancock County District Court in Ellsworth.
The QSJ profiled Cote last week. The former MDI warden, park ranger, code enforcement officer, author and star of a national TV commercial in 1966 faces eviction from his home here near Long Pond. He has been living in a cottage on a “life tenancy” status after selling the cottage and the main house in 2017.
This year, the state Supreme Court sided with the owner against Cote, who said he will not leave.
A reader forwarded the “I’d walk a mile for a Camel” Cote did in 1966, saying it was a “big deal” on MDI then.
Cote readily admits to destroying the signs.
Pocket of SWH homes still without power
SOUTHWEST HARBOR - A total of 196 Versant customers were still without power in this town as of this writing. There remains pockets of individual homes without power across MDI, but this is the largest group.