Sherman Stanley Monhegan Island Plantation Lincoln County: Sherman Stanley Monhegan Island Plantation Lincoln County Appeal of Part Denial Part Approval
Development Permit DP 4739
Slide4: 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