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Planning Board Minutes 07/20/2010

July 20, 2010

Present: John Stirling, Mimi Demers, Bill Straub, Joel Moulton, alternate, Terrence Parker, alternate, and Kate Pelletier, Planning Coordinator.

Terrence Parker and Joel Moulton were appointed as voting members for this meeting.

Chair John Stirling called the Planning Board meeting to order at 7:02 P.M.

ORGANIZATIONAL - Election of officers

Motion by Mr. Straub to nominate John Stirling as Planning Board Chairman, second by Mr. Moulton, passed unanimously.

Motion by Mr. Stirling to nominate Mr. Straub as Planning Board Vice Chairman and Mimi Demers as Secretary, second by Mr. Moulton, passed unanimously.

June 22, 2010 – Planning Board regular Meeting: Motion by Mr. Straub, second by Mr. Moulton to approve meeting minutes as amended, passed unanimously.

Brad Christo asked if the Planning Board would be discussing shoreland zoning during this meeting. Mr. Stirling responded that the Board would not be discussing shoreland zoning until the changes made by the Council earlier in the evening were finalized by Planning Coordinator, Kate Pelletier and Jean Demetracopoulos.

Mr. Straub added that there was concurrence among the Planning Board on the changes presented by Councilwoman, Jean Demetracopoulos earlier in the evening at the joint Planning Board – Council workshop. He stated that the public would be afforded the opportunity to comment on the changes at a joint public hearing of the Council and Planning Board in August.
Mr. Christo asked if the Planning Board would formally meet again before the public hearing. Mr. Straub stated they would not.
Audrey Fortier asked how she could receive the same information the Planning Board does, including all correspondence. Mr. Stirling stated that she should make that request to Roberta Orsini or Kate Pelletier.
Nick Tsakiris, Emery’s Bridge Road, asked to reserve some time to discuss the Howarth project later in the meeting. Mr. Stirling stated Mr. Tsakiris would have the opportunity to speak during the review of the Howarth project.

1. Planning Board By-Laws – Mr. Straub stated that there had been some discussion in previous months as to whether or not the Planning Board’s by-laws were legal with respect to communications. He stated that Roberta Orsini forwarded the Board’s by-laws to an attorney with the Maine Municipal Association, who reviewed them and wrote an extensive memo indicating the by-laws were in fact legal and supported some provisions of the by-laws that were in dispute.

1. MSP#09-01; Howarth Builders, Inc.: Punkin Town Place – Office/Retail/Commercial Recreation Facility – continued. (Map 1, Lot 34 & Map 2, Lot 9-1 – Route 236 @ Punkin Town Road): Site Plan Application – Alternative Entrance - July 12, 2010

Nick Tsakiris asked why there was a complete paragraph stricken from the minutes of a previous meeting in April regarding Terry Oliver’s review and approval of the stormwater management plan. Mr. Stirling stated that he had no knowledge of that at all.

Mr. Tsakiris continued stating that the stream on the property that the Planning Board was concerned with during their site review was actually bone dry. The stream is considered a runoff stream according to the Maine Department of Environmental Protection (MDEP), which is why they allowed Mr. Howarth to put his crossings there. He asked why the Planning Board continued to push for changes that are adversely affecting his client, Mr. Howarth. Lastly, he asked if it was true that Mr. Kareckas and Mr. Straub were business partners in an engineering firm and stated that Mr. Kareckas is the president of Great Works Land Trust and has an interest in preventing Mr. Howarth from building on the subject parcel because they abut it. He stated that he had been in contact with the Chief Deputy Attorney General regarding this matter and would have a response soon.

Lew Chamberlain of Attar Engineering provided a brief summary of the project. He stated that the applicant last met with the Board on April 20, 2010 and had a site walk on May 7, 2010. The most recent submissions to the Board addresses the concerns brought up by the Board at the meeting and site walk, particularly the new alternative entrance, which is depicted in the provided sketch plan. The proposed entrance is relocated to a location up approximately 200’ from what was originally proposed and would be about 60’ longer with a steeper grade and an alignment with more curvature. Relocating the entrance would also require the reworking of an existing stream culvert crossing and would negate the possibility of creating a second lot in the future. The applicant wishes to use the previously proposed entrance and believes it meets the intent of the zoning ordinance as well as the requirements of the MDEP and Department of Inland Fisheries and Wildlife as designed.

Mr. Stirling asked if relocating the entrance would create a hardship in that it would prevent the applicant from a future lot division. Lew Chamberlain stated that he believed it would because the right of way could not be counted toward lot size calculations.

Mr. Straub asked how the potential second lot would be accessed if it did not have a right of way. Mr. Chamberlain stated that access could potentially be gained from Punkin Town Road.

Mr. Straub stated that it appeared the alternative entrance was a feasible option, could perhaps be cheaper, and the additional length, curvature, etc. were not extraordinary. He asked if the applicant’s hesitation to use the alternative entrance was because of those issues or the fact that a second lot could not be created in the future. Mr. Chamberlain stated that both of those issues were relevant.

Mr. Straub asked Mr. Chamberlain if he could show the Board that the option of having a second lot would be lost if the alternative entrance was used. Mr. Chamberlain stated that he could provide a plan showing the area of the right of way and the remaining area of the lot, which would not be enough to meet minimum lot area requirements.

Mr. Straub stated that he drove up to the property last Friday night and saw water flowing quite heavily and it was not dry as Mr. Tsakiris stated earlier. He stated that there is an alternative to that additional crossing to be just a few feet from the existing crossing on Punkin Town Road and that he struggled to see why that problem couldn’t be solved otherwise so that Mr. Howarth could develop both lots and avoid a major stream crossing.

Mr. Parker stated that he wasn’t sure he saw the hardship in using the alternative entrance when he has never seen a master plan of what the property will eventually look like.

Ms. Demers stated that she thought the applicant would have preferred the alternate entrance design and it would have been much cheaper. She stated that she understood why the applicant preferred to use the original design and that the Planning Board could not stop them from doing it so long as they meet the requirements of MDEP, Inland Fisheries & Wildlife, and the town’s zoning ordinance. She stated that she appreciated the fact that the Mr. Howarth and Mr. Chamberlain took the time to look at an alternate design.

Mr. Tsakiris stated that the Planning Board has continued to refer to this as a “stream”, which it is not – it’s runoff, which isn’t always present. The runoff is the result of a gathering of water up above on the hill and it is not constantly there. It’s not a named brook or a named stream and MDEP took that into consideration when they visited the site. He stated that his client has been impacted financially by what the Board has asked of him so far and the “stream crossing” is a minor area that won’t be interrupted or altered. He stated that MDEP has approved it, the State has approved the stormwater management plan, and Terry Oliver has approved it so he didn’t understand why he continued to be met with resistance from the Planning Board. He stated that they had subtracted the right of way area from the total lot area and found that there was no way two lots could be created.

Mr. Straub stated that while the applicant and the Planning Board may disagree about what to call it, the fact remains that it is a hydrological feature that the Board must consider in their decision, especially when there may be a viable alternative. Mr. Moulton stated that it was an intermittent stream by definition.

Mr. Parker stated that the Board had asked to see a master plan of the development some time ago that would show how the applicant would be affected by the alternative entrance. Mr. Chamberlain responded that there is a master plan, however, he believed he had submitted an application and a plan that complied with the ordinance.

Mr. Straub asked if the applicant had submitted a subdivision plan yet. Mr. Chamberlain responded that a proposed lot division was included with the site plan.

Mr. Parker stated that the conditions and challenges of the land existed when Mr. Howarth bought the property. Mr. Chamberlain agreed and stated he understood the concerns of the Board and his client, but the State doesn’t require avoidance of stream crossings or alternatives analysis like they do for identified wetlands. He stated that his client doesn’t view the alternative entrance as at all practical.

Mr. Howarth stated that he originally wanted to put the road up in front, but Inland Fisheries & Wildlife reported a snake problem so they asked for an alternative entrance. Regarding Mr. Straub’s comments about the brook flowing heavily, he questioned how Mr. Straub could know that it was always flowing. He stated that his father owned the property for 48 years and he and the neighbors could attest to the fact that the stream dries up and it is dry right now. He stated that using the alternative entrance would have a negative impact in that the road would need to be widened at the culvert. In fact, during the site walk Mr. Moulton said this proposal would impact everyone down the stream, however, there is no stream and no water running so it would not impact anyone. Mr. Moulton responded stating that his concern was more about the impact down stream because of the impervious area created.

Mr. Parker asked if there was a square footage reference on the plan regarding lot size. Mr. Chamberlain stated that he must have overlooked adding the lot size to the plan, but that it was 7.6 acres.

Mr. Parker asked about the history of the gravel road above the site. Mr. Chamberlain stated that deed research was conducted and there is no interest owned in the right of way to the lot. Mr. Stirling asked if that right of way was still considered Punkin Town Road. Mr. Chamberlain stated that it was not.

Mr. Parker asked if the applicant owned the abutting property. Mr. Chamberlain stated that he did not.

Mr. Straub asked what the lot requirements were for a lot in the business zone. Mr. Chamberlain stated that each lot must be at least 80,000 sq. ft. He stated that there are currently two lots and the applicant would like a total of three lots eventually. If the Planning Board requires them to use the alternative entrance then that would no longer be a possibility.

Mr. Straub stated that during the site walk Mr. Chamberlain briefly discussed whether or not the stormwater system for this development would manage the stormwater from future development uphill. Mr. Chamberlain stated that it would not be capable of managing the stormwater from future development. Mr. Straub asked if two lots were even feasible when the amount of land tied up with stormwater on the upper and lower lots. Mr. Chamberlain stated that he thought two lots were still feasible including stormwater management. Mr. Straub asked if the stormwater flowing from above to below was at or below current runoff rates. Mr. Chamberlain stated that was correct.

Mr. Chamberlain stated that the State has reviewed the stream crossing with the applicant and found the proposal to meet their requirements. He stated that he understood that the Planning Board has to look at what will cause the least impact, but at some point the applicant needs to know which section of the ordinance requires the entrance to be moved to a different location before they agree to it. Mr. Straub stated that if there were ever a dispute about this it would be difficult to pinpoint where in the ordinance this requirement is, however, it was his hope to work out an agreement that meets the needs of the applicant as well as the objectives of the ordinance pertaining to best management practices, environmental impacts, etc. He stated that his goal was to address improving the environmental impacts that remain acceptable to the applicant. Mr. Tsakiris stated that looking back at the original entrance that came in from the lower section, there was trouble with the Black Racer snake as well as some wetlands problems and steep grading. MDEP came down to look at the site. Substantial changes were made at that time at a considerable cost to the applicant that significantly improved the environmental impact. Mr. Straub stated that was debatable and that the location of the entrance that the applicant prefers is arguably the most sensitive spot on the site as it is the steepest site, requires the most fill, and requires the longest culvert. Mr. Tsakiris disagreed stating that a significant amount of fill had to be brought in. In fact, the gas company notified them that the 12’ of fill on top of their lines was too much. The reduction of the fill resulted in an increase in the incline of the road so they had to start zigzagging.

Mr. Parker stated that he was having difficulty accepting the hardship argument when the Board hasn’t seen the proposed lot lines on paper. Mr. Tsakiris asked the Board to explain to him why the Board would not approve his plan as he originally designed them. Mr. Parker stated that it was the intent of the codes that were not being met. Mr. Tsakiris stated that the Board did not want to get into a contest about this. Mr. Parker stated that no one was looking to prevent the applicant from developing the lot, however, a reasonable alternative has not yet been presented. Mr. Tsakiris stated that by requiring the alternative entrance the Board is essentially prohibiting the applicant from having a second lot in the future. Mr. Parker stated that the Board hadn’t even seen a plan yet depicting the new lot division. Mr. Tsakiris asked what portion of the ordinance the applicant had not complied with. Mr. Straub responded that he was referring to general ordinance language regarding environmental impacts, which are in several different places in the code. Mr. Tsakiris stated that the MDEP has already reviewed the environmental impacts. Mr. Straub responded that MDEP does not have jurisdiction over the Town of South Berwick’s ordinance and each entity requires a separate permit.

Mr. Chamberlain stated that he would provide the Board with a sketch plan depicting the second lot division. Mr. Howarth stated that he would be agreeable to showing the sketch plan to the Board, however, he never said that he was going to develop the second lot – he just wanted to make sure he could if he wanted to. He stated that there was nothing in the ordinance that said he couldn’t put the entrance where he originally designed it and he couldn’t understand what set of rules the Planning Board was operating under.

Mr. Stirling stated that if the alternative entrance couldn’t be done then he thought the Board would be creating a hardship for the applicant. Mr. Moulton agreed and stated that his concern continues to be the impact due to stormwater runoff. Whether it’s one lot or two lots there is still going to be watershed downstream due to the amount of impervious area. Mr. Moulton asked the applicant if he had considered how stormwater runoff would be controlled if they were to develop the second lot in the future. Mr. Chamberlain stated that a small portion of the land would be reserved as a runoff route. A level spreader could be used after the water goes through treatment and detention.

Mr. Straub asked what the overall slope of the unused land was. Mr. Chamberlain stated that the road is about 8-9%, so up above it may be around 6-8%.

Mr. Moulton asked Mr. Chamberlain if he would try to shorten up the culvert more or try to leave it at a 2:1 slope versus and 1.5:1. Mr. Chamberlain responded that MDEP has encouraged them to go with 1.5:1. Mr. Straub asked if that would use the same construction methods. Mr. Chamberlain stated that he would seek the opinion of a Geotech to see if they needed to stabilize that and go a little bigger on the rip rap. Mr. Straub asked if MDEP had accepted a steel arch pipe as opposed to an open bottom pipe. Mr. Chamberlain stated that they have accepted a steel arch pipe. As part of the Permit by Rule, they allow culverts and pipe arches. He stated that he would speculate that they just haven’t modernized their requirements. He stated that he would be willing to look at open bottom pipes as an alternative so long as it wasn’t too expensive.

Mr. Straub stated that he wanted to be sure that if the alternative entrance was used that less than 160,000 sq. ft. of area would remain thus eliminating the possibility of a second lot. Mr. Chamberlain stated that was correct and that they would be short approximately 20,000 sq. ft.

Motion by Ms. Demers to accept the original site plan dated 7/12/10, as proposed, depicting the original crossing, second by Mr. Moulton, passed 3-2.

Mr. Straub asked Mr. Chamberlain to update the Board on the status of the rest of the site plan application. Mr. Chamberlain stated that he had submitted a stormwater management plan, which is being reviewed by MDEP. A trip generation letter from a traffic engineer had also been submitted, which indicated that peak hour trips would be 59. A traffic movement permit would only be required for those projects generating over 100 peak hour trips. He stated there was also a question at the last meeting about rights, title and interest of Punkin Town Road. He stated that he did some research on that and found Punkin Town Road to be a discontinued country road so the rights extend from each abutting lot owner to the center of the road. Mr. Straub asked if it would be necessary to have agreements in place pertaining to the maintenance of the road. Mr. Chamberlain stated that he wasn’t sure. Mr. Parker asked if the lot size calculation included the area from the lot line to the center of the road. Mr. Chamberlain stated that lot area was calculated based on the area up to the right of way line only.

Mr. Stirling asked if any improvements to Punkin Town Road were planned. Mr. Chamberlain stated there were no plans to improve the road.

Mr. Parker asked if the traffic study took into account any future development of the lots. Mr. Chamberlain stated that a trip generation assessments, which aren’t full traffic study, don’t take into consideration future development.

Mr. Straub asked if the property owners along Punkin Town Road owned the piece of road that they abutted or if they owned the rights to cross below their property. Mr. Chamberlain stated that he couldn’t answer that question. Mr. Howarth stated that his father owned that land for 48 years and he gave CMP the easement. Mr. Straub stated that the applicant needed to demonstrate legally that they have the rights to get to the property.

Mr. Straub stated that peer review of the stormwater had been brought up at an earlier meeting. He stated that he would be in favor of this due to the complex nature of the project. He stated that there is a swale in the parking area where the water gets intercepted and all of the water coming off the slope concentrates in that swale. He asked if that water bypasses the drainage pond. Mr. Chamberlain stated that it does. Mr. Straub stated that it’s issues like that that make him think a peer review of the stormwater was in order.

Mr. Howarth asked what a peer review was. Mr. Parker stated that a peer review involved review of the plan by someone with expertise in that area. Mr. Howarth asked if the town would pay for that. Mr. Parker stated that peer reviews were common practice in other towns. Mr. Howarth asked who would be responsible for finding the engineer. Mr. Stirling stated that SMRPC, a planning agency, could take a look at it initially. Mr. Howarth asked if peer reviews had been required of other applicants in South Berwick. Mr. Straub stated that the Board had utilized SMRPC for a lighting issue in the past.

Mr. Straub asked if a landscaping plan would be provided. Mr. Chamberlain responded that he has discussed potential landscaping along the bottom of the detention pond that would include some trees and shrubs. He stated that they did not plan on hiring a landscape architect.

Motion by Mr. Parker to seek peer review of the stormwater management plan and full site plan, seconded by Mr. Straub, passed unanimously.

Ms. Pelletier stated that she would coordinate with SMRPC and get back to the Board with a time frame for the review.



- Choose alternate night for meetings

Motion by Mr. Straub to change Planning Board meeting nights to the first and third Wednesday of each month through the end of August, second by Ms. Demers, passed unanimously.

Mr. Straub stated that the Planning Board would need to amend their bylaws at a subsequent meeting since they say regular meetings are held on Tuesdays.


Mr. Parker asked if, when reviewing site plan applications that involve subdivisions, the Board should review the lot division before the site plan. Ms. Pelletier stated that hypothetically, a subdivision only occurs after the second division of land. Dividing one lot would not be in the Planning Board’s purview.

Ms. Demers stated that she went on a boat trip organized by the Wells Estuary and asked if she had the Board’s permission to invite someone to speak at a future Planning Board meeting about shoreland issues. The Board agreed by consensus.

Mr. Straub stated that he would like to thank Cheryl Dionne and Richard Clough for their years of service and for getting him up to speed. The Board agreed.

Motion by Ms. Demers, second by Mr. Straub to adjourn the regular meeting. The meeting was adjourned without objection at 8:37 PM.