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Planning Board Minutes 05/04/2010

SOUTH BERWICK PLANNING BOARD
REGULAR MEETING MINUTES
May 4, 2010

ROLL CALL
Present: Cheryl Dionne, Richard Clough, John Stirling, Mimi Demers, Bill Straub, Joel Moulton and Jim Fisk, Town Planner.

Susie Scott, Assistant to the Town Planner, was taking minutes.

CALL TO ORDER
Chairman Dionne called the Planning Board meeting to order at 7:02 PM.

MINUTES APPROVAL
April 20, 2010 – Planning Board Regular Meeting: Motion by Mr. Straub, second by Mr. Stirling to approve meeting minutes as amended, passed unanimously with both Mr. Clough and Chair Dionne in abstention due to their absence.
• Mr. Clough noted concern after review of the above meeting minutes because there was no indication of either a consensus or a motion by the Board to seek a Stormwater peer review study for the Howarth project. As this request was in the minutes as the next steps in the review process but not voted on specifically, Mr. Clough would like the discussion be stricken from the minutes. He stated it was improper for an individual Board member to make a specific request, and it does not constitute an action by the entire Board. He recommended the Chair ask for Board consensus, and emphasized how serious and potentially dangerous it is if the Board does not conduct themselves legally. He requested items including a peer review study and the scheduling of a site walk be addressed once again so as to act as a cohesive Board. Mr. Clough requested through the Chair to address the Board again prior to conducting Old Business.
• Chair Dionne requested this item be placed on the May 18, 2010 Planning Board agenda.
• Mr. Straub noted the minutes reflected discussion and inquiries of the Board, and that the Board made no motions nor approached a consensus during the application review.

PUBLIC AUDIENCE
The following members of the public audience spoke and/or reserved time to speak:
• Tom Howarth, Applicant for MSP#09-01: Stated that it appeared to him that Mr. Straub thought the discussion points made by Mr. Clough were a joke. He perceived Mr. Straub as snickering and appearing as though this issue was funny. He stated he felt the need to get a lawyer as he had previously met with the State DEP, Fish and Game, and Town officials to ensure all requirements were met. As applicants, they checked with the CEO, and it has been well documented in Town records that the Quamphegan brook starts on the other side of the road. He stated that the DEP has already reviewed this same issue. Mr. Howarth is concerned about continued delays in the review process.
• Nick Tsakiris, Applicant’s Agent for MSP#09-01: Agreed with concerns expressed by Mr. Howarth, and noted that between state and engineering services, a tremendous amount of money had been paid. If the Board were to request a third Stormwater review, this would incur the applicant additional costs and would impact the project as they had already reengineered the project and made various provisions to address stream runoff. He said that he was baffled by the action of the Planning Board specific to his applicant’s attempt to provide a facility to bring tax revenue and jobs into town. The applicant has provided the Board a plan that has been fully engineered by a certified and registered engineering firm, and a plan that has been double checked by the state.
• Mr. Straub responded that in no way did he find this topic funny nor was he snickering during the discussion.
• Chair Dionne stated this issue will be further discussed at the next May 18, 2010 Planning Board meeting.
• Audrey Fortier, Rodier Road, reserved time to speak to Old Business, #1, Shoreland Zoning, and inquired as to whether a site walk visit to the Howarth property had occurred. Chair Dionne responded that a site walk would be scheduled at this meeting.
• Mr. Clough stated that all Planning Board email correspondence must stop regarding zoning, applications or issues related to specific site plan reviews. These types of discussions must take place only at official Planning Board meetings. Recent emails from individual Planning Board members to the Town Manager and agencies like the DEP and IW&F could constitute ex parté discussions specific to a site plan application including that of Mr. Howarth, and could be in violation of the law. Mr. Clough requested all emails of this nature be stopped. He is very concerned that if ex-parte discussion were to continue, the Town could be liable and applicants could be harmed. The Board as a whole, and not individual Board members, should be instructing the Planner to research and/or address issues. He is aware that certain members don’t feel this constitutes ex parté discussion but as Mr. Clough thinks it does, he will continue to bring his concerns before the Board. Mr. Clough continued by quoting the article by Gregory Dale in which all email correspondence is considered public information under the Right to Know law and 1 M.R.S.A., Section 401A. All information regarding a specific application must be shared openly in a public meeting, and the Board must ensure the applicant receives due process. He cited cases including the Town of Oakland case.
• Mr. Straub noted how there was significant discussion between Board members in their bylaw review to exclude legislative matters from the issue of ex-parte review. He noted that legislative matters need to be researched, and noted that although Mr. Clough did not agree, this type of communication was not ex parté discussion.
• Chair Dionne requested Planning Board Bylaws be reviewed specific to State guidelines at the next Planning Board meeting.
• Tom Howarth, Applicant for MSP#09-01: Inquired if email correspondence had occurred specific to his project, and to and from whom these emails were sent.
• Mr. Straub stated that emails sent were specific to Shoreland Zoning.
• Chair Dionne stated she would research the email issue and provide Mr. Howarth an answer.

CORRESPONDENCE

- none.
OLD BUSINESS
1. Shoreland Zoning: Continued.

Jim Fisk, Town Planner, discussed definitions for Normal High Water Line and Wetlands Associated with Great Ponds and Rivers as mandatory per State regulations and confirmed by the DEP. To avoid conflicts with definitions in Zoning, there will be separate definitions for certain words, and those in the Shoreland Zoning Ordinance will be identified with the definition starting with “In Shoreland Zoned areas…” Final formatting and editing will be completed by eCode, and sent back to the Clerk for final review prior to codification. Mr. Fisk spoke with Mike Nadeau last year regarding well locations in Berwick and the use of inter-local agreements when sharing between districts occurs for accessing the best location of wells.

The Board agreed on making a formal decision on whether to exclude forested wetlands in light of differing opinions on how the ordinance was previously interpreted and applied. Language in the ordinance is unclear as written. It has been the practice for the past decade to exclude forested wetlands from regulations. Mike Morse, DEP Assistant Shoreland Zoning Coordinator, stated the DEP does not regulate forested wetlands as it would put an undue burden on property owners but noted towns could impose more restrictive regulations should they so choose.

Mr. Fisk confirmed the interpretation of the Code Enforcement Officer has been to exclude forested wetlands.

Chair Dionne polled the Board with the resultant majority vote to exclude forested wetlands from Shoreland Zoning regulations:
• Mr. Stirling: Exclude.
• Mr. Clough: Exclude.
• Mrs. Demers: Exclude.
• Chair Dionne: Exclude.
• Mr. Straub: Will not object to exclude.
• Mr. Moulton: Include.

Mr. Fisk will provide a revised map addressing setbacks in the B1 Zone that were not previously mapped. He will research the map for new properties to be affected, and this could be memorialized in the Board’s transmittal to the Town Council. The Council could hold a public hearing to address these new properties. Unless there is a change to Table C, the ordinance could be forwarded onto the Council.

Mr. Clough noted the importance of having Mr. Fisk at the public hearing to assist with the dissemination of Shoreland Zoning information.

Motion by Mr. Clough, second by Mrs. Demers to forward the draft Shoreland Zoning Ordinance to the Town Council with the provision that any new property owners to be affected be addressed, passed unanimously.

Mrs. Scott will draft a memo for Chair review on Friday, May 7, 2010.

NEW BUSINESS
- none.

OTHER
1. MSP#09-01; Howarth Builders, Inc.: Schedule Site Walk.
Motion by Mr. Straub, second by Mr. Stirling to conduct a site walk visit for MSP#09-01 on Friday, May 7, 2010 at 7:30 am, passed unanimously.

Mr. Clough stated that the site walk is an actual Board meeting with no real discussion nor decisions to be made.

Applicant confirmed the flagging of a few major site elements for the site walk.

2. SMRPC Subdivision Workshop: Recap from April 28, 2010 workshop from attendees.
Attendees including Mr. Straub, Mrs. Demers, Mr. Stirling and Mrs. Scott stated the workshop was informative and helpful. Topics of interest included types and occurrences of subdivisions, off-site compensation for issues including vernal pool and wetland disturbance, different types of plan sets and subdivision review.

Mrs. Scott will provide copies of presentation materials for any members needing information.

MEMBER COMMENTS
Mr. Clough:
• Encouraged Board members to attend the May 26th SMRPC Boardmanship workshop.
• Noted the regularly scheduled June 1st Planning Board meeting will have to be rescheduled as it is the same time as the Town Meeting.
• Inquired to the Town Council’s plan for the absence of a Planner on staff, and whether Chair Dionne may want to consider writing the Town Council a letter.

Chair Dionne:
• June meeting schedule to be placed on the May 18, 2010 Planning Board agenda for review.
• Noted that Mrs. Scott’s hours have been increased in response to the loss of the Planner, and that SMRPC will provide consultation for planning assistance.
• Agreed to write the Town Council a letter regarding removal of the Planner’s position without Planning Board consultation and strategies for moving forward.

Mr. Moulton: Agreed with writing a letter to the Town Council regarding planning assistance after July 1, and stated concern that consultant monies could be used very quickly depending on types of review needed.

Bill Straub: Stated that SMRPC would be providing consultation, and requested Chair Dionne focus on strategies in which to move forward in her letter to the Town Council.

Dates & Times for Upcoming Meetings:
May 18, 2010 - 7:00 PM Planning Board Regular Meeting
*June 1, 2010 - 7:00 PM Planning Board Regular Meeting (same as TOWN MEETING)

Motion by Mr. Clough, second by Mr. Stirling to adjourn the regular meeting. The meeting was adjourned without objection at 8:40 PM.

ATTESTED: Susie Scott
Susie Scott, Assistant to the Director of Planning & Economic Development