Sherman Stanley

Sherman StanleyMonhegan Island PlantationLincoln County: 

Sherman Stanley Monhegan Island Plantation Lincoln County Appeal of Part Denial Part Approval Development Permit DP 4739

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Administrative History Background Proposal/Appeal Deck Prepared Food D-MT Subdistricts Staff Recommendation

Administrative History: 

Administrative History In 2005 Commission Staff opened Enforcement Case EC 05-048 Selling prepared food on site and a oceanside deck without a permit In January 2006, the Appellant applied for an after-the-fact permit for: 8' x 25' deck Selling prepared food for take-out Retail sale of

Administrative History (continued): 

Administrative History (continued) In July 2006, Commission staff denied the: 8' x 25' oceanside deck Selling prepared food for take-out In that same decision the retail sale of shellfish and/or finfish was approved On August 17, 2006 a timely appeal requesting the Commission review the denials in the staff decision was received from the appellant

Background: 

Background Lot Development and Uses 1800's Commercial Fishing Workshop 24' from normal high water of Atlantic Ocean Used for building, repair and storage of equipment used in a commercial fishing business In 2000 appellant began selling fresh seafood Licence from DMR In 2003 appellant began selling cold foods prepared on site and seafood ready to eat Licence from Dept. of Agriculture

Background (continued): 

Background (continued) Between 2003 and 2004 appellant built a nonconforming deck onto existing structure Deck is 8' x 25' Made setback 8' closer to Atlantic Ocean Setback now is 16' from Ocean

Proposal/Appeal: 

Proposal/Appeal 8' x 25' oceanside deck selling prepared food for take-out the retail sale of shellfish and/or finfish

Deck: 

Deck Basic Review Criteria 10.26,D,2,a – setback to tidal water of 100' 10.11,B,1- permits required for development to nonconforming structures. Can have no increase to non conformance Appeal Raises three additional issues

Deck (appeal contentions): 

Deck (appeal contentions) No permit is required since “deck is necessary for emergency operations ... in connection with appellants duties as harbor master” “deck must be located near shoreline due to nature of use”, specifically visual access “health concerns mandate a deck”

Deck (other review criteria)Emergency Operations: 

Deck (other review criteria) Emergency Operations 10.21,F,3,a (1) – emergency operations conducted for public health, safety, welfare such as resource protection, law enforcement, and search and rescue operations are uses allowed without a permit in a D-MT subdistrict The deck is not an operation, but a structure Structures require permits and must meet other criteria

Deck (other review criteria)Near shore due to nature of use: 

Deck (other review criteria) Near shore due to nature of use 10.26,G,5 - “exception may be made to the shoreline ... setback requirements for structures where the Commission finds that such structures must be located near to the shoreline ... due to the nature of their use. Structures which must be located near to the shoreline include structures which require direct access to the water as an operational necessity, such as piers, docks, retaining walls, and structures necessary for commercial fishing activities or water dependent uses within a D-MT subdistrict.” The deck does not require direct access to the water It is not necessary for commercial fishing or water dependent uses Visual access, while not a necessity, previously existed

Deck (other review criteria)Health Concerns: 

Deck (other review criteria) Health Concerns Concerns are due to potential respiratory problems due to “rope dust” LURC rules only address health provisions due to physical disabilities 10.26,G,10 – allows only for ingress and egress exceptions for physically disabled 10.10,B,1 - Variance – Only allows a physical disability variance for residential structures, there are no other ways to accommodate disability This does not meet our criteria for approval

Deck: 

Deck Based on our rules, the after-the-fact proposal and appeal for the deck cannot be approved and must be denied

Prepared Food: 

Prepared Food Review Criteria 10.21,F,3,e (D-MT Subdistrict) – all uses not expressly allowed shall be prohibited

Location & Surrounding Uses: 

Location & Surrounding Uses Located on western shore of Monhegan Island Area called Fish Beach

Location & Surrounding Uses (continued): 

Location & Surrounding Uses (continued) Located in a Maritime Development Subdistrict (D-MT) Two types of D-MT Subdistricts D-MT1 and D-MT2 The site is in an area that is predominately for commercial fishing activities (D-MT1) Other nearby subdistricts consist of: General Development Subdistrict (D-GN) Unusual Area Protection Subdistrict (P-UA)

D-MT Subdistricts on Monhegan: 

D-MT Subdistricts on Monhegan The D-MT Subdistricts were originally set up by LURC in coordination with Monhegan Island around 1990 The locations of the subdistricts The activities to be allowed within the subdistricts D-MT Subdistricts also now exist elsewhere

D-MT Subdistricts: 

D-MT Subdistricts Purpose To reserve a reasonable portion of the waterfront in coastal plantations for water dependent uses To protect commercial water dependent uses, particularly commercial fishing activities To conserve points of access to coastal waters To give preference in identified areas to commercial water-dependent uses over recreation and residential uses

D-MT Subdistricts: 

D-MT Subdistricts D-MT1 Development is mostly commercial fishing activities D-MT2 Development is mostly water-dependent activities The uses allowed in the two subdistricts are the same with the exception of what is allowed as a special exception

D-MT Subdistricts: 

D-MT Subdistricts A special exception permit is a higher level permit which needs to meet additional criteria

D-MT Subdistricts: 

D-MT Subdistricts D-MT1 Special Exception Certain industrial and marine uses D-MT2 Certain industrial and marine uses Certain commercial uses Restaurants, retail and service establishments that are either accessory to ferry facilities or that cater to persons in other permitted uses in subdistrict Certain residential uses

Prepared Food: 

Prepared Food Review Criteria 10.21,F,3,e (D-MT Subdistrict) – all uses not expressly allowed shall be prohibited Restaurants may be allowed by special exception and meeting specific conditions in a D-MT2 but not in a D-MT1 Facilities offering food prepared on the premises is a use allowed by permit in another subdistrict (D-GN) but not in either D-MT subdistrict

Prepared Food: 

Prepared Food Based on our rules, the after-the-fact proposal and appeal for the sale of prepared food for take-out cannot be approved and must be denied

Retail sale of shellfish/finfish: 

Retail sale of shellfish/finfish Review Criteria 10.21,F,3,c,(6) – retail sales of shellfish/finfish, solely ancillary to a permitted use, are an allowed use that requires a permit The retail sale is ancillary to a permitted use – commercial fishing business

Retail sale of shellfish/finfish: 

Retail sale of shellfish/finfish Based on our rules, the after-the-fact proposal for the retail sale of shellfish/finfish can be approved

Staff Recommendation: 

Staff Recommendation Staff recommends that the Commission uphold the original staff decision and deny the appeal for the after-the-fact deck, deny the sale of prepared food for takeout, while approving the retail sale of shellfish/finfish