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Planning Board Minutes 05/18/2010

SOUTH BERWICK PLANNING BOARD
REGULAR MEETING MINUTES
May 18, 2010

ROLL CALL
Present: Cheryl Dionne, Richard Clough, John Stirling, Mimi Demers, Bill Straub, Joel Moulton, alternate and Terrence Parker, alternate.

Not Present: Jim Fisk, Town Planner.

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

CALL TO ORDER
Chair Dionne called the Planning Board meeting to order at 7:00 PM.

MINUTES APPROVAL
May 4, 2010 – Planning Board Regular Meeting: Motion by Mr. Clough, second by Mrs. Demers to approve meeting minutes as amended, passed unanimously.

May 7, 2010 – Planning Board Site Walk re: MSP#09-01; Punkin Town Place: Motion by Mr. Stirling, second by Mr. Straub to approve site walk as amended, passed 4:1 with Mr. Clough in opposition.

PUBLIC AUDIENCE
The following members of the public audience spoke and/or reserved time to speak:
• Jack Kareckas, 15 Parent Street: Stated he conducted research specific to the definition of streams as he did not hear anything illustrative at the prior site walk and from previous meetings as to defining streams. He stated he was not speaking to one specific agenda item, and noted the Board’s need for a determination as to the limits of the Shoreland Zone. He had not seen the Board receive appropriate guidance for an expert’s opinion and therefore, he offered two (2) definitions as provided by M.R.S.A. Title 38, Section 436-A. Definitions: (9A) “Outlet Stream” and (11A) “Stream”. He believes the applicable definition for the Board is 9A in defining Quamphegan Brook and threshold of Shoreland Zone. He offered testimony to the fact that he has been on the land in question hiking numerous times, and has always seen the stream flowing for which he considers to be a brook. Inquired to receipt and determination of an expert’s opinion. Mr. Kareckas also reserved time as a Great Works Land Trust member to speak to MSP#09-01.
- Chair Dionne responded to Mr. Kareckas that the U.S. Department of Fish and Game provided an answer specific to stream definitions that were the same as discussed by Mr. Kareckas.
• George Gorman, Agamenticus Road, reserved time to speak to agenda item, Shoreland Zoning.
• Audrey Fortier, Rodier Road, reserved time to speak to agenda item, Shoreland Zoning.

CORRESPONDENCE
- none.

OLD BUSINESS
1. Shoreland Zoning: Continued.
Chair Dionne explained that the proposed ordinance was back before the Board because of the potential impact the change to Table C would have on property owners: By changing the section header from “Commercial” to “Non Residential”, disallowing any building or structure that is not a residence including sheds, garages, greenhouses, etc., greater restrictions would be applied than originally intended. Therefore, Chair Dionne requested the Board re-review Table C, and amend the header title back to “Commercial”.

Mr. Straub referenced the Jim Fisk memo which noted the Board reviewed Shoreland Zoning on a stream-by-stream basis prior to presentation at a public hearing. Mr. Straub stated the Board never reviewed streams in such manner, and never considered the limits of individual streams. He inquired if other Board members remembered such review as stated in the memo.

Mr. Clough responded that he remembered discussing the unnamed stream off of Thurrell Road, and that the Board agreed to the brooks and streams as written but that the Board did not discuss specific streams. However, the Board did review and agree to those streams named in the ordinance.

Mr. Straub questioned a named versus a mapped brook, and that both Lord’s Brook and Quamphegan Brook were not listed as water bodies. He stated this issue was raised a few weeks back, and the Board should understand how the ordinance specifies named versus other water bodies.

Mr. Clough stated the ordinance is very specific unless classified and listed otherwise. The Board previously conducted a public hearing with a specific map presented.

Mr. Straub stated he did not remember the Board reviewing or choosing upper limits of specific streams as Mr. Fisk noted in his memo.

Mrs. Demers agreed with Mr. Straub in having no recollection of conducting a specific review as noted by Mr. Fisk.

Mr. Clough stated that the Board agreed to present the map at the public hearing, and discussed the definition of a stream and named water bodies.

Mr. Parker inquired about the complete definition of a stream which is further defined by a channel between defined banks. He noted the written definition overrules the map, as the map can only depict a limited amount of data. He stated the Board should follow the written definition prior to consulting the map.

Mr. Straub confirmed the written language of the ordinance trumps the map, and the map solely serves as guidance. He noted concern that Mr. Fisk misrepresents history as written in his memo because the Board did not choose nor discuss specifics of individual streams. He requested this discussion continue under Shoreland Zoning as it is specific to this proposed ordinance.

Mr. Clough stated that since the Board is currently reviewing an application which could be directly affected by this discussion, the Board should listen to prior meeting minutes to clarify how streams were previously defined. He stated the Board agreed to not make the ordinance more restrictive. He stated Quamphegan Brook is both named and defined in the ordinance.

Chair Dionne noted that Mr. Fisk provided a memo specific to an application.

The Board confirmed that the proposed Shoreland Zoning ordinance will not become retroactive once it is adopted.

The Planning Board recessed for a few minutes while the Chair stepped out to obtain the existing Shoreland Zoning ordinance for comparison purposes.

The Board agreed to the following changes:
a) Keeping current definition of Stream with inclusion of the word “tributary”;
b) Adding the word “perennial” to definition of Tributary Stream;
c) Table C, section header to remain “Commercial” instead of proposed “Non Residential.”

Motion by Mr. Stirling, second by Mr. Clough to amend the proposed ordinance with the three (3) agreed changes, and forward it to the Town Council, passed unanimously.

Mrs. Scott will amend the proposed ordinance, and provide the Board amended versions on Friday, May 21.

George Gorman, Agamenticus Road, inquired as to the location of Quamphegan Brook, the stream that runs through his own property, and whether the intent of the Board is to put increased restrictions on property owners.

The Board confirmed Quamphegan Brook runs on the westerly side of Route 236, with tributaries running on the easterly side.

Mr. Straub discussed the question of named versus unnamed water bodies as this discussion solely pertained to streams in general. He stated that each stream need review on a case by case basis as well as discussion of water body limits, and the issue of named water bodies has not been taken up the Board. He responded to Mr. Gorman’s concerns by stating that the Board was only amending Shoreland Zoning to include state mandates without adding further restrictions.

Audrey Fortier; Rodier Road, noted that she has been digitally recording all meetings which are posted on a website should public or Board members like to review oral records of what has been said or agreed upon.

2. MSP#09-01; Howarth Builders, Inc.: Continued.
Chair Dionne tabled this agenda item per applicant request.

NEW BUSINESS
1. Ex Parté Communications.
Additional memos provided to the Board included:
• “E-mail talk a violation” by Jennifer L. Saunders for Seacoastonline.
• “Right-to-Know: Common Myths” by Richard P. Flewelling, Esq. for Maine Townsman, May 2007.
• Planning Board Minutes from 10/21/08 provided by Mr. Straub.

Chair Dionne instructed Board members to channel any future questions through the Planning office, Board chair or secretary.

Mr. Straub agreed that all adjudicative matters before the Board should not be discussed outside of public meetings. He provided the Board with copies of the October 21, 2008 minutes which noted the Board voted and adopted to not include legislative matters in the Ex Parté section of the Board bylaws. It was the consensus of the Board to contact whatever resources needed for informed and educated members.

Mr. Clough stated the vote was 1:6 as reflected in those minutes. He was the opposing vote because of the difficulty in separating legislative versus adjudicative matters. This difficulty is exemplified when legislative matters including amending an ordinance directly affect property owners. He referred to the MMA legal memo provided, and stated the Board is supposed to do the people’s business in a public meeting. He stated that the Board cannot choose to have bylaws that are less stringent than those of the state. He discussed recent email exchange between Board members amounting to over 37 emails. He urged email exchange stop, and further emphasized the need for the Board to amend their bylaws to include all Board business. He stated the Board was not legally protected and would stand alone in litigation.

Mr. Straub noted concern that Mr. Clough was seeking to open a previously voted upon and settled matter, and that Mr. Clough was selectively choosing what parts of state law to read. If the town attorney were to advise the Board as to their conduct, Mr. Straub would listen.

Mrs. Demers agreed that liability issues were of concern, and how in a previous workshop JT Lockman of SMPRC noted it better for people to err on the side of caution when discussing Ex Parté discussion. However, she stated she was still comfortable with the current Board bylaws, and Board members’ ability to use his/her our discretion. She stated she would never discuss an application outside of a meeting.

Mr. Stirling agreed with Mrs. Demers, and was still comfortable with the current bylaws, and would like to continue to have the freedom to know what was going on in town. This Board did not need to have the most restrictive bylaws in the state.

Mr. Moulton agreed with the majority to keep the bylaws as written as long as discussion was not specific to an application.

Chair Dionne stated she wanted the Board to maintain the ability to communicate but would like members’ communication be centralized via the Chair or Board secretary. This was discussed with the Board a year ago, and would like future communication be forwarded to Board members after having been directed through the secretary or Chair.

Mr. Parker stated Board members could separate judicial and legislative matters, and noted the importance of hearing from the public. He agreed with Madam Chair.

Mr. Clough clarified that South Berwick’s bylaws were not the most restrictive ones in the state like those of Biddeford’s. He stated the Board should never solicit public opinion, and reiterated that public information should only be gained at public meetings and hearings. Mr. Clough read into the record the following excerpt from email correspondence from Bill Livengood, Director of Legal Services for Maine Municipal Association to Jim Fisk, Planner:
You have essentially identified two related, but somewhat different issues pertaining to the discussions of board matters outside of board meetings. Your current board policy appears to address only one of those issues, ex parte communications. Clearly these are of concern whenever the board is acting in a quasi-judicial capacity, such as the evaluation of a license or permit, since decisions on those matters must be based on evidence in the record that all interested parties have the ability to know and question. To the extent that information is obtained outside of these official proceedings, a decision is subject to challenge and may be a violation of due process.

However, even outside of quasi-judicial proceedings, board members need to be mindful that the discussion of board matters outside of a properly noticed public proceeding may result in a violation of Maine's "Freedom of Access Law". Although it may not technically be a violation of that law for one member to communicate with one other member, it is possible, or even likely that one or both parties may discuss the issue with other members, resulting in the conduct of business outside of a public proceeding. Neither party may anticipate or intend this result, but once it happens it is too late to avoid the violation. [Email dated Thursday, May 13, 2010]
Mr. Clough concluded that he will not participate in the shenanigans of the Board.

Mr. Straub stated that Mr. Clough was taking this issue to an extreme, and noted that the Board need not legislate common sense.

Motion by Mr. Straub, second by Mrs. Demers to leave the Ex Parté section as is in the Planning Board bylaws, passed 3:2 with both Mr. Clough and Chair Dionne in opposition.

Mr. Clough stated that the Planning Board just passed a motion to not abide by state law as the Ex Parté section of the Planning Board bylaws is in direct conflict with state law.

OTHER
1. Reschedule June 1, 2010 Planning Board meeting: Motion by Mr. Clough, second by Mr. Stirling to reschedule the June 1 meeting to June 8, passed unanimously.

2. Letter to the Town Council from Chair Dionne dated May 14, 2010 regarding direction of the Planning Board. Board members received and discussed a copy of Chair Dionne’s letter.

3. Resignation of Susie Scott, Planning Assistant: Chair Dionne informed the Board that Mrs. Scott submitted her resignation, and her last day will be Friday, June 11, 2010.

MEMBER COMMENTS
Mr. Clough: Encouraged Board members to attend the May 26th SMRPC workshop.

Mrs. Demers: Interested in encouraging the CEO to educate the public regarding Shoreland Zoning regulations with the upcoming adoption of the proposed ordinance. Mr. Stirling recommended Mrs. Demers forward her Shoreland Zoning guidebook to the Conservation Commission.

Dates & Times for Upcoming Meetings:
June 8, 2010 - 7:00 PM Planning Board Meeting (Rescheduled from June 1)
June 15, 2010 – 7:00 PM Planning Board Regular Meeting (TBD)

Motion by Mr. Straub, second Mr. Clough to adjourn the regular meeting. The meeting was adjourned without objection at 9:10 PM.

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