BAR HARBOR — Large public utility installations, such as the controversial proposed electrical substation on Woodbury Road, would be subject to planning board review in most districts, according to a proposal supported by town officials this week.
The added layer of review, which stems from recent controversy around Emera Maine’s plans to build an electrical substation in the residential Woodbury Road neighborhood, now will be included as part of the proposed land use ordinance (LUO) repeal and replacement that voters are set to see in June 2015.
The heightened review was unanimously moved forward by planning board members at a meeting on Friday. The town council unanimously backed the move in a vote on Tuesday night.
The sentiment for the idea came out of a public hearing on the LUO rewrite that was held earlier in the month on Dec. 3.
Public utilities are largely unregulated by local ordinance, with allowance in many districts even without a building permit. Recent changes to the proposed replacement ordinance that were made in the wake of the Emera controversy had public utility installations needing at least a building permit in all districts.
However, at the early December meeting on the LUO replacement, attorney James Collier, representing Woodbury Road project abutters Donal and Patricia Murphy, argued that projects over 2,000 square feet in size should not just need a permit, but need to come before the planning board.
Collier first pointed out that this very protection exists for some districts in the replacement ordinance, but not others. He argued that the protections should be the same in all districts.
Town officials initially argued that any type of policy changes would best wait until future ordinance amendment work once the repeal/replacement was accomplished. However, planning board members eventually came around to adding the protections, saying that they weren’t changing any use allowances, just adding another level of review.
“I can’t imagine any resident of Bar Harbor that is going to say no to … not having any oversight of the utility,” board member Basil Eleftheriou said.
Town attorney Rob Crawford confirmed that the amendment would not go against the purposes of the LUO replacement, which are to simplify and better organize the document and make it more user-friendly.
The following districts are those proposed for planning board review of public utility installations greater than 2,000 square feet: Gateway, Village Historic, Mount Desert Corridor, Village Residential, Downtown Village I, Downtown Village II and Downtown Village Transitional.
Several residents who have consistently criticized the LUO replacement project raised protests at the Dec. 3 public hearing, with at least one going so far to say that the changes make the LUO anything but user-friendly.
“The new LUO rewrite does not reduce confusion for me at all. It makes it more confusing,” Donna Karlsen said.
Planning board chairman Ivan Rasmussen seemed somewhat stunned by this criticism.
“With all of the process we’ve gone through, with all of that, the months and months process that we’ve gone through on this, you’re saying it’s still confusing?” he asked.
“I am saying it is not anywhere near something I could possibly recommend putting on the warrant,” Karlsen, who also is a warrant committee member, responded.
Jake Jagel, who also was behind the successful Appendix C zoning lawsuit against the town in 2010, began his comment opportunity by asking who made the decision to repeal and replace the ordinance. After some testy back and forth, board member Tom St. Germain stated that the town council is the one body that can hire a consultant, such as the one who developed this project, and that this project initiated with the town council.
“You asked that question the last time. That was the answer we gave you. It’s still the same answer,” St. Germain said.
Jagel seemed unmoved by the answer, claiming that municipal code says that such a request from the town council must be in writing, and that no one had yet shown him any such request.
“It’s really very strange that nobody seems to know where this started,” Jagel said. Board chairman Rasmussen disallowed Jagel from commenting further at that point.
Collier took up the lion’s share of the public comment, entering into at times heated back-and-forth with board members over the difference in definitions between “uses” and “activities” and other similar subtleties of zoning.
Rasmussen at one point quipped, “I can only say that under the old ordinance, lawyers found points to disagree on, and under the new revision, I’m sure they’ll find points to disagree.”
Collier called that statement a “whitewash.” He went on to suggest that the planning board was “making policy under the radar.”
St. Germain bristled at this accusation.
“That is an offensive affront to the planning board, that we’re making policy under the radar, and it’s not true,” he said.