Mount Desert planning board finds no required dedicated open space for MD365 Heelway subdivision under workforce-housing formula; adopts backup finding that 20,

The Mount Desert Planning Board on Nov. 18 took up a Law Court remand asking it to calculate the open-space requirement for the six-unit MD365 Heelway workforce subdivision and concluded that, under the plain language of the townsubdivision ordinance, density-bonus units are excluded from that calculation and the initial computation yields no mandatory dedicated open space for this application. The board also made a separate, backup finding that the applicant already provides 20,900 square feet of common, condominium-protected passive open space, which exceeds the 10,398-square-foot number advanced by abutters' counsel.

The remand asked the board to apply section 5.16.2.3 of the subdivision ordinance and "show your work" on the open-space math. Town counsel Andy Hamilton presented the packet and the Law Court pages that narrowed the boardtask to that single calculation. Attorney for the applicant, Mr. Paley, told the board the ordinancelanguage directs the board to exclude density-bonus units from the workforce-housing open-space calculation and argued that, after that exclusion, the property does not trigger a dedicated open-space requirement. "The Law Court was pretty transparent in its findings," Paley said, and he pointed the board to the applicant's July 14, 2023 open-space plan showing 20,900 square feet of passive outdoor living space.

Abutters' counsel Grady Burns urged a different reading. Burns said the board must apply the ordinance so it does not "read [the] requirement out" of the code and recommended a stepwise calculation that begins with all proposed units and then subtracts density bonuses to arrive at a 10,398-square-foot requirement. Burns also stressed that any required open space must be legally dedicated by recorded instrument, and he said the applicant bears the burden of proving that dedication.

Board members spent extensive time discussing statutory construction and the arithmetic. The lot is 39,204 square feet and the VR1 zoning minimum cited in the packet is 10,000 square feet per unit. Under the board majority's chosen formulation the board excludes the three density-bonus units from the workforce-housing calculation, dividing the lot by three non-bonus units (39,204 / 3 = 13,068 square feet per unit) and finding that number exceeds the 10,000-square-foot minimum; the board therefore concluded the numerical open-space requirement under 5.16.2.3 is zero for this application.

The board recorded Motion 1 adopting that interpretation and the result. The motion carried on a roll call vote with four members voting in favor and one member opposed.

Recognizing the Law Court had said an open-space requirement exists in some form for workforce housing, the board then adopted Motion 2 as a fallback: if the board applied the alternative calculation urged by Burns that yields a 10,398-square-foot requirement, the applicant nevertheless meets and exceeds that figure because the applicanthas provided 20,900 square feet of common passive outdoor recreation space that is identified in the applicant's July 14, 2023 supplemental submission and defined and recorded in the condominium declaration as protected common open space.

Jerry Summit, a public commenter who said he had helped draft the ordinance, urged the board to apply the rules in a way that preserved both workforce housing and protected open space, saying, "We can chew gum and walk at the same time." Paley and Burns both said the record contains the documents the board needs to show its work; Burns emphasized the board must be satisfied the space is legally dedicated and meets the ordinance's standards (no impervious surface, permanent protection instrument, etc.).

The board did not issue a final written decision on Nov. 18. Instead, counsel and staff were directed to prepare draft written findings that reflect the two motions; the board scheduled a date-certain meeting for Dec. 3 to review and finalize the written decision and disposition of the remand. The boardrecorded that the underlying application remains pending until the written findings and final action are adopted.

Motion and vote record (summary): Motion 1 (apply 5.16.2.3 to workforce housing by excluding density-bonus units; calculation based on three non-bonus units yields no required dedicated open space) outcome: approved (4 yes, 1 no). Motion 2 (backup): if the alternative calculation produced a 10,398-sq-ft requirement, the applicantmeets it with 20,900 sq ft of condominium-protected open space outcome: approved (unanimous). The board directed counsel to draft findings for board review prior to final action.

The Planning Board's next procedural step is the preparation and circulation of draft findings; the board set a special meeting for Dec. 3 to consider the finalized written decision.

Sources: Planning Board meeting transcript, Nov. 18, 2025 (presentations and motions by Attorney Paley and Grady Burns; public comment by Jerry Summit; motions and roll-call votes recorded on the meeting record).