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Planning Board Minutes 08/04/2010

SOUTH BERWICK PLANNING BOARD
REGULAR MEETING MINUTES
August 4, 2010
ROLL CALL
Present: John Stirling - Chairman, Mimi Demers - Secretary, Bill Straub – Vice Chairman, Terrence Parker, alternate, and Kate Pelletier, Planning Coordinator.

Absent: Joel Moulton, alternate.

Terrence Parker was appointed as a voting member for this meeting.

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

MINUTES APPROVAL
July 20, 2010 – Planning Board regular Meeting: Motion by Mr. Straub, second by Mr. Parker to approve meeting minutes as amended, passed unanimously.

PUBLIC AUDIENCE
Eric Pelchat, 32 Front Street stated that he would like to call the Board’s attention to a motion made at the July 20th, 2010 meeting by the chair to nominate the vice chair and secretary. He stated that according to Robert’s Rules of Order, the chair cannot make motions.

Mr. Stirling apologized and called for a new motion to elect the vice chairman and secretary.

Motion by Mr. Straub to nominate Mimi Demers as Secretary, second by Mr. Parker, passed unanimously.

Motion by Ms. Demers to nominate Bill Straub as vice chairman, second by Mr. Parker, passed unanimously.

CORRESPONDENCE
1. Central Maine Power public notice of intent to file dated July 13th, 2010
Mr. Stirling stated that the Board was in receipt of a letter from Central Maine Power concerning the Maine Power Reliability Program. Mr. Straub stated that about a year ago CMP came before the Planning Board requesting a modification of the zoning ordinance and the Board decided they didn’t need to. He asked if CMP would be subject to any review by the town or if it would be handled by the Public Utilities Commission. Mr. Stirling stated that he didn’t think so unless there was something that would require a change in zoning.

Ms. Demers stated that her understanding was that CMP came before the Board last year to check on whether or not review was needed. She stated that she thought it was a little bit of a gray area.

Mr. Stirling stated that he knew they had already started work and had begun purchasing land to widen their right of way.

Mr. Straub suggested that the Board ask the town attorney if the town has any jurisdiction over this project. Mr. Stirling stated that he would make an inquiry.

Ms. Demers stated that she was aware of a group called Grid Solar who was throwing up some roadblocks and had some things to say about the Maine Power Reliability Program because of their involvement with solar energy. She stated that since then she believed Grid Solar had come to terms with the plan.

OLD BUSINESS

Mr. Stirling asked Kate Pelletier if she had heard anything from SMRPC concerning the peer review of the Howarth project. Kate Pelletier stated that JT Lockman should have comments back to the Board by the end of the week and the peer review of the stormwater would be sent out to the Cumberland County Soils and Water Conservation District pending a $500 deposit.

1. Discuss future work plan.

Mr. Stirling stated that Ms. Demers had put together a packet from about the last 1 ½ - 2 years of questions and issues identified by the Board and others. He asked Ms. Demers to go over it.

Ms. Demers stated that she emailed a list of work plan items she had compiled. Some have corresponding documents in the packet and others do not. She stated that the purpose of the packet was to remind the Board where certain issues originated from and suggested that the Board prioritize the items.

Mr. Stirling stated that he spoke to code enforcement officer, Joe Rousselle last week who suggested taking a look at the zoning districts, which happened to be #2 on Ms. Demers’ list. He stated in some instances a zone is split down the center of a road and property owners on either side do not have the same rights in terms of lot size, setbacks, etc. One example given by Joe was on Belle Marsh Road where one side is zoned R4 and the other is zoned R5. He had to deny someone an application for a home business even though the neighbor across the street was granted one. Joe suggested extending a particular zone to the back of the lot instead of the middle of the road or to extending the zone 250’-300’ back from the road. He stated that there was also an email in the packet from Josephine Collins on Agamenticus Road with the same concerns. He stated that Joe was going to put together a list of roads where this was an issue and suggested the Board make this issue their first priority.

Ms. Demers stated that the first two items in the packet concerning acceptance of subdivision roads by the town were things Jim Fisk talked about and that she wasn’t sure if any work had been done on them.

Mr. Stirling stated that it was up to the Council whether or not a road is accepted by the town and that he wasn’t sure the Planning Board could do anything about it. Mr. Stirling stated that when people get Planning Board approval involving a road it is approved presuming it’s going to be a public road sooner or later. He stated that there have been hang-ups on certain projects where the roads just haven’t been accepted by the Council. This leaves the applicant in limbo because the road can’t be private and the town won’t accept it as public. He stated that there should be a clear mechanism of approval and that he thought this issue was worth looking at. The Board agreed.

Ms. Demers asked Kate Pelletier if she had any experience in this area. Kate Pelletier stated that she did. In Eliot there is ordinance language that spells out what is required of an applicant to petition the town to accept a private road including an engineer’s report and Planning Board review.

Mr. Straub asked if the town was obligated to accept the road under certain conditions. Kate Pelletier stated that it was not because each petition goes before the town for a town vote as opposed to the Selectmen or Council voting on it so there was no guarantee of acceptance. She stated that she would bring in Eliot’s ordinance language and that of some other surrounding towns for comparison.

Eric Pelchat, 32 Front St. asked and was granted permission to speak. He stated that it has been well documented that the town is not required to accept any road, however, the road has to be built to the standards to be accepted. Mr. Straub stated that there was more to it than that because you can’t have more than so many lots on a private road so there is a huge catch 22.

Mr. Parker suggested getting the Council’s opinion as to whether or not the Council is disinclined to accept roads. Mr. Straub stated that getting their opinion was fine, however, if roads aren’t going to be accepted then they shouldn’t be approved as if they’re going to be accepted. He stated that there should be a mechanism in the ordinance to ensure that roads not accepted by the Council will still be legal. Mr. Stirling stated that where road rights aren’t clear the lot owner can run into problems with refinancing and things of that nature.

Ms. Demers stated that the issue of timber harvesting was next on the list. Mr. Stirling stated that if he remembered correctly, someone came in for a permit to cut his own wood. His complaint was that he would have to come before the Board every year for a permit and that if you are harvesting for your own use you should not have to do that.

Ms. Demers stated that Section 140-62 was the applicable timber harvesting section. Mr. Stirling stated that more than 10 cords would require a permit and must be issued annually.

Ms. Demers stated that since she knew Bob Eger, the person who spoke about this originally, she would take this on and speak to him about his concerns.

Mr. Straub asked what the other road issues were that had come up in the past. Ms. Demers stated that Mr. Moulton previously handed out ordinances that he wrote having to do with limited weight and road review policy. She stated that the other issue was about cul-de-sacs, which are limited to 600’. There are a number of cul-de-sacs that have been built that exceed 600’ that were granted waivers. She stated that if waivers are being routinely granted then an ordinance change should be considered based on the number of trips per day.

Mr. Straub stated that he has dealt with this issue professionally and that the basis should not be just trips per day but also public safety, secondary access, and emergency access. Typically a supportable cul-de-sac length would be between 600’-1200’. He stated that there should be a really good reason to waiver whatever the standard in the ordinance is because it has to be based on a public safety consideration.

Ms. Demers stated that extending the length of a cul-de-sac also has environmental implications. The longer the cul-de-sac is the more you are breaking up habitat corridors.

Mr. Straub stated that other towns require a secondary access and urged the Board to be mindful that they don’t give out waivers without good reason.

Mr. Stirling suggested talking to the Fire and Police Chiefs about this. The Board agreed.

Mr. Straub asked if “Road Review Policy #7” on Ms. Demers’ list was the same thing as the road acceptance issue the Board just discussed. Ms. Demers stated it was.

Mr. Straub stated that he would like to hear Mr. Moulton’s thoughts on the road issues and whether or not things like weight limits are a Planning Board issue.

Mr. Stirling stated that #10 on Ms. Demers’ list referred to better definitions of “amendment” and minor revisions to site plans. Ms. Straub stated that he thought amendments to site plans and what constituted a “minor revision” was already spelled out in the ordinance. He stated that this issue came up with the Rockin’ Rooster project on Main Street questioning whether or not they needed to come back to the Planning Board to add seating.

Kate Pelletier stated that this issue comes up frequently and whether or not the code enforcement officer can approve a minor change. She stated that Eliot has a standard condition of approval that any change is required to back before the Board for an amendment and that the code enforcement officer doesn’t have much leeway there.

Mr. Parker stated that York does something similar and they handle those requests at the beginning of each meeting and it’s done quickly.

Mr. Straub stated that he didn’t think this was an issue that needed to be taken up. If there was an approved plan with changes of substance then they would need to come back. The Board agreed not to take up this issue.

Mr. Straub stated that #11 on the list referred to the Board’s ability to extend a permit subsequent to its expiration. He stated that the Board had decided that they did not have the authority to extend a permit after it expired and asked Kate Pelletier if she agreed. Kate Pelletier agreed that permits cannot be extended once they’ve expired.

Mr. Straub stated that he thought the Board had already decided on this issue and that it didn’t need to be pursued further. The Board agreed.

Ms. Demers stated that parking was another issue on the list. According to the ordinance, depending on how many seats you have in your restaurant, for example, you’d have to have a certain number of onsite parking spaces, which is impossible in the downtown area. She stated that this requirement has been waived over and over again by the Planning Board and should probably be changed. Mr. Straub agreed stating that if there is no way to provide onsite parking downtown then the ordinance should definitely be changed. He suggested this be the Board’s #3 priority. The Board agreed.

Ms. Demers stated that there were some other issues about parking including that the 2-hour parking downtown was not enforced. Mr. Stirling stated that it was enforced spottily and that you can’t park in the parking lot next to the Post Office but people do anyway. Parking is also allowed at Saint Michael’s if you purchase a permit, but again, this is not enforced.

Mr. Straub stated that the Board has to look at parking as it is reflected in the ordinance. Ms. Demers agreed stating that if it has to do with land use and the number of required spaces then that would be within the Board’s purview.

Mr. Stirling reminded the Board that Saint Michael’s is now town property and could be a resource for parking. Mr. Straub agreed and stated that it could be a justification for having the parking requirement for the downtown parcels.

Ms. Stirling stated that this issue could be put on a future agenda for discussion.

Ms. Demers stated that #4 on her list had to do with a suggestion made by Bruce Whitney to add a definition of what the purpose of a public hearing was. She stated that Board did come up with a set of guidelines for a public hearing, which made it into the Planning Board’s bylaws. She stated that this is often helpful to handout with the agenda at a public hearing because it can be confusing to someone who has never attended a public hearing what the procedure is.

Mr. Straub stated that there is a distinction between public input at a public meeting and public input at a public hearing. A public hearing is a required, designated step in the process for a case to be decided whether it be for site plan approval, subdivision approval, etc., and is the time for the Board to accept formal testimony on an application. An information or public meeting is more informal with conversations and banter back and forth.

The Board agreed to add a definition for a public hearing.

Mr. Straub stated that #5 on Ms. Demers’ list concerned how to prevent people from getting a permit for a renovation or new construction to avoid a demolition permit. He stated that he didn’t think language needed to be added to the ordinance but that better permits needed to be issued, which the Board has already begun doing with expositions, findings of facts and conclusions. He stated that the Board must be sure that when they write a permit it is what they intended it to be under the ordinance.

Mr. Parker asked what the history of this issue was. Mr. Straub stated that a permit was written in 2007 or so to renovate and add apartments to a historic structure and was subject to interpretation as to what was and wasn’t required. What ended up happening was the historic structure was demolished and three new units were constructed. The town attorney advised the Board that once a permit is issued, it’s issued and the ordinance is behind the permit - you can’t go back to the ordinance and it interpret it for the permit.

Mr. Parker asked if it was gray enough to allow for a complete demolition. Mr. Stirling stated that the applicant claimed the structure wasn’t demolished – it simply fell down.

Mr. Straub stated that he believed that permit to be inadequate in many respects and was too brief.

Ms. Demers stated that it sounded like the Board felt that the work on this issue was already in progress. Mr. Straub agreed stating that if permits are written properly then this won’t be an issue in the future. In this particular case, if the findings of fact had stated that the structure would be maintained then this would never have been an issue. Mr. Stirling agreed stating that he believed the Board was heading in the right direction.

Mr. Parker suggested that it might be wise to require the applicant to outline, in bullet form, the construction process and this could be put right on the plan or attached to the application.

Kate Pelletier asked if the Board required progress schedules to be submitted with site plans. Mr. Stirling stated that they don’t, but that might be something to consider especially in a case like this one where the applicant left the building open for two years claiming he ran out of money. Kate Pelletier stated that she would provide language from Eliot on progress schedules.

Mr. Straub stated that the other thing the Planning Board learned with that case is that after the Planning Board has concluded their review of an application they really have no role in review of what happens after – it all falls on the code enforcement officer.

Ms. Demers stated that another issue on the list was extending the BR zone down Portland Street. The Board agreed to table this issue for now so they can see how the new BR zone is working and will check the comprehensive plan to see what recommendations it makes concerning this issue.

Mr. Stirling stated that the next issue was letters of credit and the one-year timeframe being too short. Ms. Demers stated that she believed this was brought up by Jim Fisk, but that she would try to find out more.

Ms. Demers stated that she would also try to find out more about the next item on the list, extending the 30-day period for recording subdivision plans at the registry of deeds.

Mr. Straub stated that the next item on the list, developing regulations for dumpsters, was initiated by a letter from a resident on Parent Street who had a neighbor that collected things in their yard, which she thought was a nuisance.

Mr. Parker stated that in his experience dumpster ordinances have to do with time of disposal so you don’t have dump trucks backing up to a dumpster at 3 AM. Mr. Straub stated that he believed this particular complaint had to do with a dumpster that had been on the lot for a long period of time.

The Board asked Kate Pelletier to ask Joe Rousselle if he thought it would be a good idea to have dumpster regulations.

Mr. Stirling stated that the next item on this list was adopting setbacks for wells.

Mr. Parker stated that this came up on the Emery’s Bridge property the Board reviewed recently. The applicant proposed a well location that was straddling the property line so the Board required that the well be at least 10’ from the property line.

Kate Pelletier stated that she would check the State requirements, if any, for well setback requirements.

Ms. Demers stated that the next issue was the adoption of a lighting ordinance, which was brought up by Sue Roberge. She stated that she very briefly visited Darksky.org to see what sort of model requirements they had and that it might be worth looking at.

Mr. Parker stated that many surrounding towns like Portsmouth and Kittery were adopting lighting ordinances like these.

Kate Pelletier stated that she would print out the Darksky.com model ordinance.

Mr. Straub asked Kate Pelletier what lighting requirements Eliot had. Kate Pelletier stated that they were somewhat basic and just prohibited illumination from spilling over a property line more than .5 foot-candle.

Ms. Demers stated that #13 on the list, suggestions from PREP (Piscataqua River Estuaries Partnership) for improved environmental protection, would be something LaMarr Clannon could elaborate more on when she comes to a Planning Board meeting to speak. She stated that she spoke with Ms. Clannon who would like to come to an October Planning Board meeting to discuss this more. Mr. Stirling stated that once the Board nails down a date for this he would like to invite the Conservation Commission as well. The Board agreed.

Ms. Demers stated that the next item on her list was concerning impact fees. For example, if someone wanted to put in a subdivision on Belle Marsh Road then they would pay a fee that would be set aside for improvements to Belle Marsh Road.

Kate Pelletier stated that impact fees are difficult in smaller towns. There must be a proven need caused by new development and the improvements must be of benefit and serve the new development. Since the fees must be reasonable, it’s difficult for a smaller development to generate enough money to pay for a specific improvement. She stated that a good example of an impact fee program was in South Portland on Payne Road. The city was able to pay for significant road improvements with the impact fees they collected from the commercial businesses wanting to locate there.

Mr. Parker stated he thought this issue had to do more with impact fees being collected for open space and recreation. Kate Pelletier stated that the same principals would apply. The town would have to have some sort of demonstrated need for conservation/recreation land and those paying into it would have to directly benefit from it.

Mr. Straub stated that setting aside land for open space in subdivisions is something that can be done during the Planning Board review process and wouldn’t necessarily need impact fees to facilitate that. Ms. Demers stated that Section 121-13 in the ordinance allows the Planning Board to require a developer to reserve 10% of the total land area for recreation.

Kate Pelletier asked if the town was considering cluster/open space subdivisions. Mr. Stirling stated that the Council has discussed it but nothing had been done yet.

Mr. Parker asked if the comprehensive plan suggested cluster subdivisions. Ms. Demers stated that the comprehensive plan does encourage cluster subdivisions and other things like situating houses to have a southern exposure to utilize solar energy. Mr. Parker stated that since the comprehensive plan is not just a piece of paper, the Board should start to look at developing a model ordinance for cluster subdivisions.

Ms. Demers stated that in Section 140-47(b) of the ordinance says that the Planning Board can require a cluster subdivision plan. They can require the applicant to submit two plans for conceptual review showing a conventional and cluster layout, however there are no provisions allowing for additional density if the cluster layout is used. Mr. Straub stated that it had been his experience that while the towns can’t require the developer to use a cluster type of layout, they can offer incentives to the developer to encourage them to do so.

Mr. Stirling asked Kate Pelletier to provide a sample cluster subdivision ordinance.

Mr. Straub stated that the next item on the list was that the Industrial zone does not specifically address mixed use. Ms. Demers stated that she would find out more about this one and get back to the Board.

Ms. Demers stated that the next issue was coming up with a definition of “foundation”, which is another housekeeping item that has come up in discussions. The Board asked Kate Pelletier to provide several sample definitions.

Ms. Demers stated that the last item on the list was that condominiums were not addressed anywhere in the ordinance and that Jim Fisk recommended that there should be. The Board agreed to table this issue for now.

The Board agreed on the following issues to pursue as their top priorities:
1. Revise zoning splits to extend to the back property line as opposed to the center line of the road.
2. Review the road acceptance/access management policies.
3. Review downtown parking.
4. Establish a definition for ‘public hearing’
5. Require a construction/progress schedule for new projects.

Mr. Parker asked if all site plan applications would now be sent to SMRPC for review. Mr. Stirling stated it would depend on how complex the plan was. Mr. Straub suggested the he would be comfortable allowing Kate Pelletier and the chair to decide which applications are complex enough to be sent to SMRPC. The Board agreed to set a policy on SMRPC reviews at their next meeting and asked Kate Pelletier to add that to the agenda.

NEW BUSINESS

-None.

OTHER

Norma Tutelian asked and was given permission to speak. She stated that she attends a lot of meetings and had never been as rudely treated as she was tonight. She stated that she was not once introduced to nor could she even see the new Planning Coordinator. She stated that it would have been nice if the podium had been moved so that the audience could see everyone sitting up front.

Mr. Straub introduced Kate Pelletier and stated that she was introduced at the last Planning Board meeting. He apologized that the podium was in the way.

MEMBER COMMENTS

Motion by Ms. Demers, second by Mr. Parker to adjourn the regular meeting. The meeting was adjourned without objection at 8:48 PM.