Staff Recommendation

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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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Town of Beaver Cove
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Zoning Petition ZP 701 Administrative 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 701 Proposal

• 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 701 Existing 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 701 Existing 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 701 Existing 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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Residential Development Greenville
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Zoning Petition ZP 701 Existing 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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D-RS Zones
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Zoning Petition ZP 701 Review Criteria

• Statutory and Chapter 10
• Pursuant to Section 685-A,8-A of the
  Commissions Statutes, and Section 10.08,A of the
  Commissions 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 701 Review Criteria

• Comprehensive Land Use Plan
• In accordance with the Commissions Comprehensive
  Land Use Plan,
• A. Under Chapter 5, Section II, A, 7, it is the
  Commissions 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. Under Chapter 5, Section II, A, it is the
  Commissions 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 701 Review Criteria

• Comprehensive Land Use Plan (continued)
• D. Under Chapter 5, Section I,F,1 it is the
  Commissions 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. Under Chapter 5, Section I, H, it is the
  Commissions 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. Under Chapter 5, Section I, J, 4, it is the
  Commissions policy to conserve and protect
  lakes, ponds and rivers and their shorelands
  which provide significant public recreational
  opportunities.
• G. Under Chapter 5, Section I, M, 3, it is the
  Commissions policy to protect the scenic values
  of coastal, shoreland, mountain, recreation, and
  other scenic areas.

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Zoning Petition ZP 701 Review Criteria

• Chapter 10, Land Use Districts and Standards
• Pursuant to Section 10.08, B of the Commissions
  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 Commissions 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 701 Review 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 lakes 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 701 Public 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 701 Public 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 701 Public 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 701 Public 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 701 Public Hearing/Comments

• Summary of Intervenor Testimony (RESTORE)
• RESTORE testified in opposition to the rezoning
  proposal referring to
• Commissions 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 701 Public 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 701 Public 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 Commissions
  standards (10.25, Q, 3, b)

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Zoning Petition ZP 701 Review 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 701 Conclusions

• The petitioner has not carried its burden to show
  that the proposed rezoning is in compliance with
  Section 685-A,8-A of the Commissions Statutes,
  and Section 10.08,A of the Commissions 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 701 Conclusions

• The petitioner has not carried its burden to show
  that the proposed rezoning is in compliance with
  Section 685-A,8-A of the Commissions Statutes,
  and Section 10.08,A of the Commissions 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 Commissions 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 701 Conclusions

• The petitioner has not carried its burden to show
  that the proposed rezoning is in compliance with
  Section 685-A,8-A of the Commissions Statutes,
  and Section 10.08,A of the Commissions 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 701 Conclusions

• Section 10.25, A of the Commissions 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 petitioners 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 701 Conclusions

• 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
  petitioners 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 701 Conclusions

• The petitioner has not demonstrated that the
  project will not have an undue adverse impact on
  existing uses or resources
• Within the petitioners ownership, there are far
  more appropriate areas suitable for residential
  development.
• By contrast, based upon the record, within the
  petitioners ownership the areas proposed for
  rezoning at issue here are particularly
  unsuitable for the proposed development.

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Zoning Petition ZP 701 Conclusions

• 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 701 Staff Recommendation

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