2014-09-06 / News

Another Silver Birches Meeting Set for Monday

By Stephanie Fortino

A committee appointed by Mayor Margaret Doud to continue discussions on the Silver Birches rezoning request, meeting Tuesday, September 2, added to a list of uses some members don’t want permitted and discussed the possibility that rezoning might only apply to the upland portion of the twoacre parcel, not the shoreline. Another meeting was scheduled for Monday, September 8.

Mayor Doud created the committee after the planning commission voted to recommend denial of the rezoning request, so as to educate city council members, who, as the Zoning Board of Appeals, must now make the ultimate decision on the matter. The committee is comprised of city council and planning commission members.

Owner Liz Ware is asking to rezone the Silver Birches property, on the Island’s northeast shore, to conditional hotel/boardinghouse (HB). Before voting August 12 to recommend denying it, the planning commission had deliberated the matter for more than a year, and Ms. Ware had submitted a number of changes in her master plan to accommodate concerns expressed by the commission and nearby residents. The council received yet another revised application after that recommendation, and will Ms. Ware will change it again in time for the September 8 committee meeting, following other concerns expressed Tuesday.

Councilman Jason St. Onge said the city council is reviewing the matter because the planning commission split its vote, 6-2, in recommending the request be denied. He said he hopes the community will support the council’s review of the matter and continued meetings.

“If I had to guess,” he said, “the council’s split right down the middle.”

Residents opposing the rezoning have been vocal at meetings and written letters, he said, but most constituents with whom he has talked support the request. He also said that everyone, including the council, should learn more about the proposal.

The historic structures on the Silver Birches site would be protected from demolition through conditional rezoning and a historic preservation agreement would be held by the city if the rezoning request is approved.

Conditional rezoning allows property owners to tailor a zoning district to fit the needs, characteristics, and development goals of a unique piece of property. Ms. Ware’s current request includes the addition of three more rental cottages (two cottages exist there now) and a mixed-use structure that might include employee housing, storage, and laundry facilities.

While most community members agree that historic preservation is a worthwhile endeavor, citizens and planning commissioners have expressed concerns about overdevelopment and loopholes in the application that could allow future property owners to develop the site in an undesirable way.

City attorney Tom Evashevski said loopholes existed in earlier versions of the request, but he told the Town Crier, “I think there’s great value to the city to wrap this up in a box so we know exactly what we’re getting.”

The continued discussions September 2 listed the possible ways Ms. Ware, or any future property owner, could use the Silver Birches property if it receives the conditional zoning. In particular, planning commissioner Mary Dufina proposed a litany of potential activities, including bicycle rental, horseback riding at a commercial stable, putting green, tennis courts, kayak, canoe, and jet ski rental, receptions, and bonfires.

“There’s a lot of things that can come there,” she said.

Planning commissioner Michael Straus said, “I don’t want this to be about the current property owner… We want to protect this property in perpetuity.”

Mrs. Dufina said terms like “uses associated with relaxation and recreation” are ambiguous and could be left open to interpretation.

“The thoughts this applicant has could be way different from what the next property owner might have,” she said.

But Ms. Ware’s attorney Jennifer

Schaffer, disagreed.

“In terms of relaxation, I don’t know how much further we could define that,” she said, adding that the term “recreation” is another word that should stand on its own. “They are almost self-explanatory. There comes a point where it becomes too difficult to define these to exclude anything that might be excluded in the future.”

She said it could become “almost comical in trying to overdefine” such terms.

Mr. Evashevski said there might be a difference between “uses” and “land uses,” the land uses being what the city’s zoning ordinance regulates.

Nevertheless, he told Ms. Ware, “The more detail you can provide, the better it will be received. Council has to explain [their decision] to their constituents.”

Since the property was in use before the city created its first zoning ordinance, some uses will be allowed, or “grandfathered” under the current zoning ordinance, but there is disagreement among planning commissioners, city council members, and some citizens over what occurred on the site over more than 100 years.

Mrs. Dufina said she would like to see land uses restricted more closely to “what’s grandfathered in… as opposed to what’s available to a resort.”

Mr. Evashevski told the Town Crier the city’s decision makers determine the grandfathered uses. A property owner can use their land according to grandfathered uses, but if the city and owner disagree, a legal determination may have to be made by the courts.

Another disagreement also concerns how the property is now zoned. The city’s latest zoning ordinance map adopted in November 2013 has the upland Silver Birches property zoned low-density residential (R-1) while the beach north of M-185 is zoned residential shoreline (RS).

City zoning administrator Dennis Dombroski said he thought the conditional rezoning application only pertained to the upland property.

Ms. Schaffer said Silver Birches is one lot with one legal description, and an undefined portion located in the residential shoreline zoning district. Ms. Ware seeks to rezone the entire parcel, including the beach, to conditional hotel/boardinghouse.

“It’s all one package,” Ms. Schaffer said. “The legal description, it goes up to the water and includes the riparian rights.

“Whatever we apply for applies to the entire property. We’re going to record this with the register of deeds… To apply that to only a portion of the property, we would need two different legal descriptions.”

“We can’t split the legal description of the property,” Ms. Schaffer said. “It would make no sense.”

Parcels located in two zoning districts occur elsewhere on the Island, Mr. Dombroski said.

Mr. Evashevski told the Town Crier he was unsure why the property was classified in two zoning districts, and said he would investigate the legality of the issue further.

“I don’t think we should get stuck on that,” he told the committee.

Ms. Schaffer explained the beach would be available for guest use, which may include recreation activities and non-motorized watercraft rentals like kayaks. There is also a dock there.

“We’re entirely limited by physical availability,” Ms. Schaffer said. When using the waterfront, “we’re limited by the number of guests and the physical characteristics of the land.”

Mrs. Dufina and some other planning commissioners are also concerned about food service on the Silver Birches property, and Ms. Schaffer said any food service would be available only to guests and their guests, and to employees. The size of the restaurant would be limited by the sewage treatment capacity of the septic system.

The committee also inquired about whether Ms. Ware would want a liquor license, and she said she plans, eventually, to apply for a Class C Resort liquor license, which would allow guests eating at the restaurant to purchase alcohol and drink it on the premises. Mrs. Dufina and Mayor Doud worried about dance and entertainment permits, which the city is in the process of regulating elsewhere. Mrs. Dufina also had concerns over the possibility for outdoor service, additional bars on the property, and special liquor licenses for large receptions and other gatherings.

Ms. Ware and Ms. Schaffer noted that large gatherings would be limited by land and septic system capacity.

Mrs. Dufina pointed out other areas of concern in the conditions that might be opened to unintended interpretation in the future, because the terms used vary from the city’s zoning ordinance.

“Those terms should be used throughout,” Mrs. Dufina said. “We’re all charged with making sure this is understandable.”

To address most of these concerns directly, Mr. Evashevski suggested Ms. Ware could identify all the intended uses on the site and include a statement that other additions or changes would need city approval.

“That,” he said, “would pretty much close it up.”

The September 8 committee meeting will be held in the council chambers at 3 p.m.

Also on the committee is Councilwoman Kay Hoppenrath, who was absent. Mr. Straus participated by telephone.

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