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Staff Recommendation for Denial of Zoning Petition ZP 701 Burnt Jacket, LLC Beaver Cove, Maine June 7, 2006. Town of Beaver Cove. Zoning Petition ZP 701 Administrative History. Pre-Submission Meetings between petitioner and staff Concept Plan vs. Rezoning/Subdivision

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Staff Recommendation

for Denial of

Zoning Petition ZP 701

Burnt Jacket, LLC

Beaver Cove, Maine

June 7, 2006



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Zoning Petition ZP 701Administrative History

  • Pre-Submission Meetings between petitioner and staff

    • Concept Plan vs. Rezoning/Subdivision

    • Concerns raised by staff

  • Petition received Summer 2005

  • Petition Complete Sept 2005

  • Public Hearings Feb 2006


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Zoning Petition ZP 701Proposal

  • Rezone 246 acres (of 1,720 owned) from M-GN, P-GP, and P-WL to D-RS for the purpose of proposing a residential subdivision.

  • Two development areas. A shoreline development of 30 lots and a hillside development of 40 lots

  • 12 acre common lot for shore access for hillside lots


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Zoning Petition ZP 701Existing Conditions and Background

  • Project Location/Access

    • Town of Beaver Cove, Piscataquis County, north of the Town of Greenville

    • Southeastern shore of Moosehead Lake, remote area of Burnt Jacket peninsula

    • From Greenville the site is accessed via the Lily Bay Road (5.7 miles from downtown Greenville to entrance of peninsula) and the gravel Burnt Jacket Road (over two miles from nearest development proposal)


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Zoning Petition ZP 701Existing Conditions and Background

  • Existing Uses and Development

    • Development near but off the peninsula

      • Lily Bay State Park north of proposal – 6 miles by road

      • Downtown Greenville south of proposal– 8 miles by road


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Zoning Petition ZP 701Existing Conditions and Background

  • Existing Uses and Development

    • Development near but off the peninsula

      • Large D-RS (J.M. Huber Subdivision) across cove from proposal – 2.6 miles by road

      • Commercial Marina (D-CI) just south of Huber Subdivision

      • Residential Development south on Lily Bay Road in Greenville – 4.3 miles by road


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D-RS Zone

Huber Subdivision

D-CI

Commercial Marina



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Zoning Petition ZP 701Existing Conditions and Background

  • Existing Uses and Development

    • Commercial timber harvesting

    • Scattered residences on peninsula, small D-RS zones on western shore (1.1 miles from proposal) and entrance to peninsula (2.3 miles from proposal)



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Zoning Petition ZP 701Review Criteria

  • Statutory and Chapter 10

    Pursuant to Section 685-A,8-A of the Commission’s Statutes, and Section 10.08,A of the Commission’s Land Use Districts and Standards,

    “A land use district boundary may not be adopted or amended unless there is substantial evidence that:

    A. The proposed land use district is consistent with the standards for district boundaries in effect at the time, the comprehensive land use plan and the purpose, intent and provisions of this chapter; and

    B. The proposed land use district satisfies a demonstrated need in the community or area and has no undue adverse impact on existing uses or resources or a new district designation is more appropriate for the protection and management of existing uses and resources within the affected area.”


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Zoning Petition ZP 701Review Criteria

  • Comprehensive Land Use Plan

    In accordance with the Commission’s Comprehensive Land Use Plan,

    A. Under Chapter 5, Section II, A, 7, it is the Commission’s policy in communities or areas without prospective development zoning to encourage orderly growth within and proximate to existing, compatibly developed areas (the so-called adjacency criterion) – i.e., existing development of similar type, use occupancy, scale and intensity to that being proposed. As stated under this particular standard of its Comprehensive Plan, the Commission has generally interpreted the adjacency criterion to mean that rezoning for development should be no more than a mile by road from existing compatible development.

    B. UnderChapter 5, Section II, A, it is the Commission’s goal to guide the location of new development in order to protect and conserve forest, recreational, plant or animal habitat and other natural resources.

    C. Under Chapter 5, one of the broad goals of the Commission is to conserve, protect and enhance the natural resources of the jurisdiction primarily for fiber and food production, nonintensive outdoor recreation and fisheries and wildlife habitat.


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Zoning Petition ZP 701Review Criteria

  • Comprehensive Land Use Plan (continued)

    D. UnderChapter 5, Section I,F,1 it is the Commission’s policy to discourage development that will interfere unreasonably with continued timber and wood fiber production, as well as primitive outdoor recreation, biodiversity, and remoteness and support uses that are compatible with these values.

    E. UnderChapter 5, Section I, H, it is the Commission’s goal to conserve and protect the natural beauty and unspoiled qualities of the waters, shorelands, mountains, plant and animal habitats, forests, scenic vistas, trails and other natural and recreational features in order to protect and enhance their values for a range of public recreational resources.

    F. UnderChapter 5, Section I, J, 4, it is the Commission’s policy to conserve and protect lakes, ponds and rivers and their shorelands which provide significant public recreational opportunities.

    G. UnderChapter 5, Section I, M, 3, it is the Commission’s policy to protect the scenic values of coastal, shoreland, mountain, recreation, and other scenic areas.


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Zoning Petition ZP 701Review Criteria

  • Chapter 10, Land Use Districts and Standards

    Pursuant to Section 10.08, B of the Commission’s Land use Districts and Standards, the review standards listed in Section 10.25, A must be considered in applying the above criteria to proposed changes in subdistrict boundaries adjacent to lakes.

    Under the provisions of Section 10.25, A, Review Standards for Structures Adjacent to Lakes, of the Commission’s Land Use Districts and Standards,

    “The standards set forth below must be met for all subdivisions and commercial, industrial, and other non-residential structures and uses proposed on land adjacent to lakes. These Standards must also be considered in applying criteria for adoption or amendment of land use district boundaries, as provided in Section 10.08, to proposed changes in subdistrict boundaries adjacent to lakes.

    In applying the standards set forth below, the Commission shall consider all relevant information available including the Maine Wildlands Lake Assessment Findings (Appendix C of this chapter), and relevant provisions of the Comprehensive Land Use Plan.

    1. Natural and cultural resource values: The proposal will not adversely affect natural and cultural resource values identified as significant or outstanding in the Wildland Lakes Assessment (Appendix C) of this chapter;


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Zoning Petition ZP 701Review Criteria

  • Chapter 10, Land Use Districts and Standards (continued)

    2. Water quality: The proposal will not, alone or in conjunction with other development, have an undue adverse impact on water quality;

    3. Traditional Uses: The proposal will not have an undue adverse impact on traditional uses, including without limitation, non-intensive public recreation, sporting camp operations, timber harvesting, and agriculture;

    4. Regional diversity: The proposal will not substantially alter the diversity of lake-related uses afforded within the region in which the activity is proposed;

    5. Natural character: Adequate provision has been made to maintain the natural character of shoreland;

    6. Lake management goals. The proposal is consistent with the management intent of the affected lake’s classification; and

    7. Landowner equity. Where future development on a lake may be limited for water quality or other reasons, proposed development on each landownership does not exceed its proportionate share of total allowable development.”


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Zoning Petition ZP 701Public Hearing/Comments

  • The petitioner held numerous informational meetings in May and June of 2005

  • The petition generated numerous emails and letters from the public concerned about the proposal

  • Due to that public interest and requests, the Commission voted in Oct. 2005 to hold a public hearing

  • 4 Groups were granted intervenor status in Dec. 2005

    • NRCM, MRFC, RESTORE, and 9 individuals

    • A Pre-Hearing Conference was held on Dec. 8th, an order was issued on Dec. 16th

  • Public Hearings were held on Feb. 1st and 2nd in Bangor and Feb. 7th in Greenville


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Zoning Petition ZP 701Public Hearing/Comments

  • Summary of Petitioners Testimony

    The Petitioner stated the following:

    • Proposal is consistent with applicable rezoning standards, hillside lots will be configured in a community center design

    • Proposal is consistent with CLUP – 1 mile of existing development to the west, and 1 nautical mile (across the bay) from zoned development in Beaver Cove

    • Proposal meets criterion of demonstrated need in that:

      • Meetings with groups were positive

      • There is a need for high quality lake and hillside homes

      • There is an escalating interest in lakefront properties

      • The proposal will help offset the volitale nature of the tourism industry

    • Beaver Cove is next to Greenville which is the major service center of the area


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Zoning Petition ZP 701Public Hearing/Comments

  • Summary of Public Testimony

    The majority of public comment was in opposition to the proposal.

    The public expressed concerns regarding the proposals adverse effects on:

  • Recreational uses

  • The economy

  • The overall character of Moosehead Lake and the Burnt Jacket peninsula

  • Traffic (Boat and Road)

  • Wildlife

  • Water and air quality

  • Wetlands

  • Scenic resources


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Zoning Petition ZP 701Public Hearing/Comments

  • Summary of Intervenor Testimony (MRFC)

    • MFRC testified in opposition to the rezoning proposal.

    • MFRC asserted that proposal doe not adequately address development and conservation planning in the region.


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Zoning Petition ZP 701Public Hearing/Comments

  • Summary of Intervenor Testimony (RESTORE)

    • RESTORE testified in opposition to the rezoning proposal referring to:

      • Commission’s objective of discouraging sprawl

      • Market demand does not necessary constitute demonstrated need

      • Moosehead Lake rated “outstanding”- virtually every category of Wildlands Lake Assessment

      • No meaningful study on effects of proposal on habitat, cultural values, community need, or visual impacts


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Zoning Petition ZP 701Public Hearing/Comments

  • Summary of Intervenor Testimony (9 Individuals)

    • 9 Individuals testified in opposition to the rezoning proposal stating that:

      • There are ample lots to meet the foreseeable needs in Beaver Cove

      • There is no other development of this scale on the shoreline of Moosehead Lake in the Beaver Cove/Greenville area

      • Proposal will adversely affect fisheries, water quality, wildlife habitat, scenic resources, shore character, traditional uses

      • The proposal does not meet adjacency criterion

      • The proposal violates the provisions of the CLUP

        • Natural condition of shoreline will be lost


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Zoning Petition ZP 701Public Hearing/Comments

  • Summary of Intervenor Testimony (NRCM)

    • NRCM testified in opposition to the rezoning proposal stating that:

      • The proposal does not meet the adjacency criterion

      • The proposal will have an undue adverse impact on natural resources

      • The proposal will have an adverse impact on services

      • Rezoning configuration will not allow the location of lots to comply with the Commission’s standards (10.25, Q, 3, b)


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Zoning Petition ZP 701Review Comments

  • MNAP cannot provide definitive statement on unusual natural features without an on-site survey

  • Piscataquis County Commissioners are in favor of proposal

  • Town of Beaver Cove is concerned about changing character and increased need for services

  • Piscataquis County Economic Development Council concerned about affordable housing

  • Dept. of Health & Human Services stated there are suitable soils for on-site sewage disposal

  • ACOE indicated there may be extensive wetland impacts

  • Greenville Town Manager commented on an need for services and concerns regarding septage disposal

  • State Soils Scientist indicated the hillside lots are of more concern due to steeper slopes

  • MDIFW noted no record of significant wildlifehabitat, USFWS area is habitat for Canada lynx


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Zoning Petition ZP 701Conclusions

  • The petitioner has not carried its burden to show that the proposed rezoning is in compliance with Section 685-A,8-A of the Commission’s Statutes, and Section 10.08,A of the Commission’s Land Use Districts and Standards. Specifically:

    A. the policy to encourage orderly growth within and proximate to existing, compatibly developed areas (the so-called adjacency criterion) – i.e., existing development of similar type, use, occupancy, scale and intensity to that being proposed. As stated in the Plan, the adjacency criterion generally means that rezoning for development should be no more than one mile by road from existing, compatible development. The proposed location for this 70 lot subdivision is not adjacent to any development of similar type, scale, or intensity of use.

    • The grandfathered Huber development across the bay in Beaver Cove is approximately 2.6 miles by roadway from the proposed development (measured from the closest location of the Huber development D-RS zone to the closest development area of the proposal).

    • The small amount of dispersed existing development (relative to the amount of proposed development) already within the Burnt Jacket peninsula within a mile of the proposed development is not a compatible type of development, as it is not of a similar scale or intensity of use.


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Zoning Petition ZP 701Conclusions

  • The petitioner has not carried its burden to show that the proposed rezoning is in compliance with Section 685-A,8-A of the Commission’s Statutes, and Section 10.08,A of the Commission’s Land Use Districts and Standards. Specifically:

    B. The petitioner has not shown that the proposed land use district is consistent with Chapter 5 of the Comprehensive Land Use Plan, specifically with the Commission’s goals and policies to guide the location of development in order to protect and conserve forest, recreational, plant or animal habitat, water resources and scenic resources.

    The location of the proposed development does not conserve and protect the natural beauty and unspoiled qualities of the waters, shorelands, scenic vistas, and trails in order to protect and enhance their values for a range of public recreational resources. The proposal and its location in a remote area of the peninsula which is not adjacent to other similar type and compatible development uses, degrades the existing unspoiled nature of the remotest and most visually prominent and naturally pristine part of the Burnt Jacket peninsula and the recreational, scenic, and water uses that historically have occurred both on and around the peninsula.


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Zoning Petition ZP 701Conclusions

  • The petitioner has not carried its burden to show that the proposed rezoning is in compliance with Section 685-A,8-A of the Commission’s Statutes, and Section 10.08,A of the Commission’s Land Use Districts and Standards. Specifically:

    C. The petitioner has not demonstrated that the project satisfies a demonstrated need in the community or area. According to information in the record, of the residential lots in the existing Beaver Cove development, 52 are vacant residential lots.

    The petitioner has not shown that there exists any justification, no less a demonstrated need, for an additional 70 lots in the community or area.

    While a few letters from community leaders were generally supportive of the project, several also raised concerns regarding the potential negative or unknown impacts on services such as fire protection, police protection, septage disposal, and compatibility with the community.


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Zoning Petition ZP 701Conclusions

  • Section 10.25, A of the Commission’s Standards must be considered in applying the criteria for proposed changes in subdistrict boundaries adjacent to lakes. In this regard, the petitioner has failed to show that the proposed rezoning is in compliance with the pertinent provisions of Section 10.25, A:

    A. The proposal is not consistent with Section 10.25, A, 3, in that the proposal will likely have an undue adverse impact on traditional uses of public recreation and forestry.

    B. The proposal is not consistent with Section 10.25, A, 5, in that adequate provision has not been made to maintain the natural character of the unusually pristine, natural and visually prominent shoreland involved in this development rezoning proposal, whereas development of some other areas within the petitioner’s ownership would not pose such problems.

    Among other things, the rezoning proposal for the shoreline development, which is linear along the shoreline, does not provide adequate lot depth or separation to allow for maintaining the natural character of the shoreland. The shallow depth of the proposed Development Subdistrict does not allow for a concentric lot design and back lot areas.


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Zoning Petition ZP 701Conclusions

The hillside lots will inevitably be visually prominent from the lake if they are to have views of the lake.

The particular location of the proposed development is on the most remote portion(s) of petitioner’s property, an area which has been identified by the Commission as having the highest ratings of natural values among lakefront in its jurisdiction.


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Zoning Petition ZP 701Conclusions

  • The petitioner has not demonstrated that the project will not have an undue adverse impact on existing uses or resources

  • Within the petitioner’s ownership, there are far more appropriate areas suitable for residential development.

  • By contrast, based upon the record, within the petitioner’s ownership the areas proposed for rezoning at issue here are particularly unsuitable for the proposed development.


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Zoning Petition ZP 701Conclusions

  • Evidence in the record suggests that there are other bases for denial of this rezoning petition, but the Commission does not address these here because any failure by petitioner to carry its legal burden is fatal to its petition.

  • Moreover, rezoning is not an entitlement. Petitioner purchased this land with a full understanding of its current zoning and its restrictions on development. Petitioner has been continuing to undertake commercial timber harvesting on this land, as its zoning allows and as historically the principal commercial use of this property, and may undertake a limited amount of development and other economic uses of the property, as its current zoning allows.


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Zoning Petition ZP 701Staff Recommendation

  • Based upon the above information, staff recommends that Zoning Petition, ZP 701 as proposed by Burnt Jacket, LLC be denied


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