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Planning Board Minutes 09/15/2010

September 15, 2010
Present: John Stirling - Chairman, Mimi Demers - Secretary, Bill Straub – Vice Chairman, Joel
Moulton, Terrence Parker, and Kate Pelletier, Planning Coordinator.
Chair John Stirling called the Planning Board meeting to order at 7:02 P.M.
September 1, 2010 – Planning Board regular Meeting: Motion by Mr. Straub, second by Mr.
Moulton to approve meeting minutes as written, passed unanimously.
No comments.
1. Continued discussion with Code Enforcement Officer, Joe Rousselle on amending zoning
district boundaries.
Mr. Stirling stated that Kate Pelletier provided a spreadsheet showing a comparison in uses if the
zoning district boundaries were to change. He asked Kate to elaborate.
Kate Pelletier stated that she prepared a map showing the proposed zoning district boundary
changes. The large map is a consolidation of what Joe Rousselle, South Berwick Code
Enforcement Officer, provided at the large meeting and incorporated the changes made at the last
meeting. For example, the areas highlighted in blue at the top of the map represent a zoning
district change from R5 to R4. The yellow highlighted area represents a change from R4 to R3
and so on. The color coded spreadsheet showing the table of land uses (Table A) corresponds
with the map and indicates any changes in allowed uses if the zone were to change. So, any use
highlighted in blue would indicate a change from one zone to the next. Also, the last several lines
of the spreadsheet show a comparison of the dimensional standards between one zone to the next
and are highlighted if different. For example, on the blue spreadsheet there was no change in
dimensional standards from R5 to R4 whereas a change from R4 to R3 (the yellow spreadsheet),
the minimum lot size would change from 120,000 sq. ft. to 80,000 sq. ft.
Mr. Stirling suggested going through each zone and looking for anything that stands out. He
stated that the change from R5 to R4, shown in blue, was fairly minor in terms of the allowed
uses, and there would be no change in the dimensional standards. ft. He stated that this change
only affected three lots on Tufts Road. Mr. Straub stated that in terms of use changes, automobile
graveyards, bed and breakfasts, churches, clubs/fraternal organizations, day care centers,
extractive industries, kennels, convenience stores, public utilities, restaurants, schools,
transmission towers and veterinary services would all now be allowed on those three lots across
Tufts Road.
Mr. Stirling asked how many lots the R4 to R3 change would actually affect and if it would
increase density. Mr. Straub stated that it’s important to remember that the zone only extends
300’ or to the rear lot line so if the existing frontage is 300’ and the lot extends 300’, which is the
maximum the zone allows, that would give you a 90,000 sq. ft. lot, which is not enough to create
additional lots. Mr. Stirling stated that some of those lots along Hooper Sands Road were in
conservation anyway.
Mr. Straub stated that the side and rear setbacks would also change from 50’ to 25’ if the zone
changed from R4 to R3. He stated that this would allow for bigger buildings. Mr. Moulton stated
that this might allow someone to put on an addition or a barn they wouldn’t have otherwise been
able to do. Mr. Straub stated that this was exactly what Joe Rousselle was talking about when he
said that some people were upset that they couldn’t build a shed or a barn when their neighbor
across the street could.
Mr. Straub stated that in terms of uses, a multifamily dwelling and mobile home park would now
be allowed on the other side of Hooper Sands Road if it were changed from R4 to R3.
Mr. Stirling stated that the next change was from the R3 to R2A zone, which runs along
Witchtrot Road up to Emery’s Bridge Road. Kate Pelletier stated that this change would become
more restrictive. Many of the uses in the table would no longer be allowed if the zone extended
across the street.
The Board determined that an older version of Table A had been used to create the spreadsheet.
They made the appropriate corrections and determined that automobile graveyards, extractive
industries, kennels, transmission towers, and veterinary services would no longer be allowed if
the zone were extended across Witchtrot Road. Because there is no sewer along Witchtrot Road
there would not be any changes in dimensional standards.
Mr. Straub read through the changes from R2 to R1, which run along Agamenticus Road to
Knight’s Pond Road and on Drury Lane. The only use change would be for sludge spreading,
which would no longer be allowed. He stated that dimensional standards for minimum lot size
would change from 30,000 sq. ft. with sewer to 10,000 sq. ft. with sewer and minimum street
frontage would be decreased from 125’ to 100’. The front setback would be reduced from 25’ to
20’, and the side and rear setbacks from 25’ to 15’.
Mr. Stirling stated that this particular change seems to affect the dimensional standards the most
and would most likely increase density. Mr. Parker agreed and stated that this was a section of
town where density should be increased because of the available water and sewer. Mr. Straub
also agreed and stated that the changes highlighted in green made the most sense since it doesn’t
bring any more commercial development to town.
Mr. Straub stated that while he is not opposed to any of the changes, but he is ambivalent about
them and hasn’t yet been convinced that there is a need to make these changes. He stated that
Mr. Stirling stated that if the need has been articulated and is real he could support the concept
but he wasn’t sure the need had been expressed. Mr. Stirling stated that Joe Rousselle said earlier
that he is presented with this dilemma three or four times a year. He stated that it obviously only
affects a small amount of people but he could understand why people would be upset that their
neighbor across the street could put up a garage and they couldn’t.
Mr. Straub stated that the last change was along Belle Marsh Road where the R3 zone would be
extended across the street where it is currently zoned R5. Automobile garages, churches,
clubs/fraternal organizations, day care centers, extractive industry, kennels, mobile home parks,
multifamily dwellings, convenience stores, public utilities, restaurants, schools, transmission
towers and veterinary services would all now be allowed. Minimum lot sizes would change from
120,000 sq. ft. to 80,000 sq. ft. and frontage would be reduced from 300’ to 200’. He stated that
similar to the changes on Hooper Sands Road, there would be very little opportunity to increase
the density because of the depth of the zone.
Mr. Straub asked Ms. Demers what she thought about the changes on Belle Marsh Road since
she lives there. Ms. Demers stated that she lives on the R3 side of the road. She stated that Belle
Marsh Road is quiet, which is how the neighborhood likes it. She stated that she would not like
to see more density out there. Mr. Straub stated that it appeared only three or four lots on Belle
Marsh Road were large enough to be divided.
Kate Pelletier stated that Joe Rousselle told her that after the last meeting, when the Board
eliminated the three lots on Young Street area from the proposed changes, a resident came in and
said he was very much in favor of the zoning line extending across Young Street. Mr. Straub
stated that he felt strongly that the Board shouldn’t mess around with moving business into
another district. Mr. Stirling agreed stating that the roads were much too narrow already. Mr.
Straub stated that the town may decide to change the zoning in that area anyway when Saint
Michael’s is developed.
Mr. Straub suggested looking at the topography, wetlands and existing frontage to determine the
extent the lots along Belle Marsh Road and Hooper Sands Road could be further divided. Kate
Pelletier stated that she could put together a map for the next meeting. Mr. Straub stated that
looking at the wetlands and topography for Witchtrot Road wouldn’t matter since there aren’t
any changes in the minimum lot size.
The Board agreed to continue this topic until the next regular meeting.
2. Continued discussion on private road acceptance regulations.
Mr. Stirling stated that the Board should have received a packet from Kate Pelletier that included
South Berwick’s existing language on private roads and road acceptance and some examples of
ordinances from other towns like Kennebunk, Eliot and Wells. He stated that there are two
conflicting definitions of “private road” in the ordinance – one in Appendix A and the other in
the definitions.
Mr. Straub suggested simply removing the definition from Appendix A. Ms. Demers stated that
the Board should decide whether they want to define private roads or not. She stated that the only
other towns that appear to define the term are North Berwick and Topsham.
Mr. Parker asked if the phrase “level of hierarchy” (from the definition of ‘Private Road’)
referred to the standards of construction. Mr. Stirling and Mr. Straub stated it did.
Kate Pelletier asked why the Board wouldn’t eliminate the separate standards for private roads
and require that all roads be built to the same standard. Mr. Moulton stated that he agreed
because inevitably the owners will want to turn the road over to the town for acceptance. Mr.
Parker stated that he thought eliminating those standards wouldn’t allow the opportunity to build
a narrower road for smaller subdivisions and not an overly engineered road. Kate Pelletier stated
that if that’s the desire then the road standards could be changed so that they are appropriate for
the size of the subdivision and not based on whether they will have a public or a private road.
Mr. Parker stated that the definition allows for a lesser design standard to be followed and if the
builder wanted the road to become public it would need to be upgraded first.
Mr. Moulton stated that there is always the assumption from buyers that the road will at some
point become a town road. He stated that staying with one standard would probably be a good
Mr. Straub stated that Appendix A says a private road is one not located in an approved
subdivision. He asked if there was a situation where something would come before the Planning
Board that requires a private road that is not a subdivision. Kate Pelletier stated that it may apply
to a family subdivision, which wouldn’t come before the Board. Mr. Straub stated that there is
definitely a conflict between the two definitions. Kate Pelletier stated that if a family subdivision
had six lots then they would, by definition, be in violation of the ordinance.
Ms. Demers stated that Warren Pond Road has about six homes owned by different families who
aren’t related. She stated that they do a great job of maintaining the road on their own. She stated
that she likes that they do that and that the road has remained small and gravel. Mr. Stirling
stated that if someone were to put in a private road like that now it would have to be paved. He
stated that he believed that road was there before there were even any codes in place.
Mr. Straub asked what would happen if the Board approved a subdivision with six developed lots
and the owners or builder petitioned the town to accept the road and were ultimately denied. The
way the ordinance is written now that road would be a private road with more than five
dwellings, which isn’t allowed. Kate Pelletier stated that no one will ever be able to guarantee
that the roads will be accepted by the Council so the limitation of five lots should be removed
from the ordinance and instead require that all roads be built to a certain standard. If the town
thinks that requiring a 50’ right of way for a subdivision with ten lots or less is excessive then
they can use a lesser standard like a 40’ right of way for example. That way the owners would be
able to petition the town without having to upgrade their road.
Mr. Straub stated that he would like to have the conversation with the Council about what
variables there are in determining whether or not a road will be accepted.
Mr. Moulton asked if the road would become an association after it left the developer’s hands.
Mr. Straub stated that if the road isn’t accepted by the town Appendix A requires that a
maintenance agreement would have to be provided to the Code Enforcement Office. Mr. Stirling
asked what would happen to the stormwater structures on a private road. Mr. Moulton stated that
the town wouldn’t take over the stormwater structures if it was a private road.
Mr. Straub stated that if you have to build a road to public standards even if it remains private
and you don’t have maintenance agreement for the care and upkeep of the road then there is no
assurance that the road is passable for emergency vehicles. He stated that he thought the
maintenance agreement language should be in Section 119-2, etc. (Acceptance of Streets)
because right now it’s so vague. Kate Pelletier suggested that a maintenance agreement be in
place prior to any lots being sold since the developer could be long gone by the time they petition
the town to accept the road.
Mr. Straub stated that requiring the developer to have some sort of maintenance agreement in
place until such time a road becomes public is missing from the ordinance.
Mr. Stirling asked what the process is for someone who wants to petition the town for acceptance
of a road. Kate Pelletier stated that the ordinance requires that a plan, profile or cross section of
the street be submitted to the Council and that the Planning Board and Road Commissioner sign
off on it. Mr. Stirling stated that it doesn’t appear there are any guidelines for the Council to
follow. Mr. Moulton stated that he believed the best way to do it would be for the town body to
vote on it not the Council because it impacts every resident of the town. Mr. Stirling agreed that
he would like to see roads go to town meeting too.
Mr. Parker stated that it seems like if the developer can meet the requirements of Article II then
there should be no reason not to accept the road. Kate Pelletier stated that Section 121-7(H)(1)
has a line that says, “The town reserves the right not to accept roads built to town standards.”
Mr. Straub stated that if he had a subdivision approved by the Planning Board, paid for a road to
be designed and certified by an engineer as conforming to the road standards then there shouldn’t
be a reason why it would be rejected by the Council. Mr. Moulton stated that the issue becomes
too political, which is why it should go before the entire town for a vote.
Mr. Stirling stated that any proposed subdivision that comes before the Planning Board should be
required to have a road maintenance agreement upon approval. Mr. Straub stated that he agreed,
but there would have to be something in the ordinance.
Mr. Moulton stated that, on a side note, he would like to stop requiring sidewalks. He stated that
if the road is accepted by the town then the sidewalk is as well, which requires additional
maintenance by the town.
Mr. Parker asked what sort of factors the Council would look for when making their decision to
accept a private road. Mr. Straub stated that it could be anything – whether they want to spend
money plowing and maintaining the road, etc. The ordinance doesn’t provide any guidelines
which would aid them in their decision making process.
Mr. Moulton stated that he was very much in favor of requiring the same standard for private
roads as public roads. This ensures that even if the developer skips town the owners are able to
either turn it over to the town or maintain it affordably. Mr. Straub stated that he agreed that all
roads should be built to the same standard, however, the remaining question he would have for
the Council would be why they would deny a road if it were built to those standards. Mr.
Moulton stated that putting that decision before the town for a vote as opposed to the Council
would take all of the politics out of the equation.
Mr. Straub stated that he would like to have a frank discussion with the Council about what the
issues are. Clearly the definition of “private road” needs to be changed and there needs to be
some language requiring a maintenance agreement. Kate Pelletier stated that she could put
together a draft ordinance as a starting point based on tonight’s discussion and the Board could
continue working on this at the next meeting. The Board agreed.
Mr. Straub stated that he can’t find anything in the ordinance that requires that the road be
maintained for purposes of public safety until such time the town takes it over. He stated that this
seems to be the major disconnect in the ordinance.
Mr. Moulton stated that he would also like to require a developer to pay for third-party review of
new roads including an as-built plan and review of stormwater. Mr. Straub stated that he
believed the Board already had that ability via peer reviews.
Mr. Stirling stated that regarding the issue of sidewalks that Mr. Moulton brought up earlier
should probably be looked at. Mr. Moulton stated that if a neighborhood has a sidewalk that goes
out three miles and the road becomes a town road then the town then has to maintain that
sidewalk. He stated that it is very expensive to maintain them. He suggested limiting sidewalks
to a certain distance from the Village area of town. Ms. Demers stated that she assumed that
requirement was put in place to assure the developer provides a safe community for its residents.
Mr. Stirling stated that the Board would continue their discussion on this once Kate had put
together a draft ordinance.
1. Review new format for Planning Board decision letters
Mr. Stirling stated that Kate Pelletier had provided several examples of decision letters she uses
in Eliot. There is one for requests for Planning Board action, which would include things like
Mr. Straub stated that even for a simple request like that they still go through the findings of
facts, conclusions, conditions, etc. Kate Pelletier stated that the format of these letters have been
time tested and reviewed by attorneys. She stated that they have held up well in court.
Kate Pelletier asked if the Board likes to review their decision letters before they’re issued. Mr.
Stirling stated that the Chair usually reviews them, but not the entire Board. Mr. Straub stated
that for the more complicated projects the Board may want to take a look first.
Mr. Straub stated that a good decision letter lays out for the code enforcement officer precisely
what the decision was. He stated that there was one particular case in 2007 where the approval
was severely lacking and the applicant took advantage of that. He stated that he liked the format
of these new letters. The Board agreed.
Mr. Parker asked if Kate Pelletier would be in charge of determining what the findings of facts,
etc. Mr. Straub stated that the Board could lay out the framework during their discussion with the
applicant. Mr. Parker asked if the applicant would have to come back to the Planning Board to
hear the letter being discussed. Kate Pelletier stated that the decision is made at the Planning
Board meeting. The applicant has their official approval on the night the Board makes the
decision – the letter is simply a formality and is not required by the ordinance. It just provides a
summary of the process after the fact. Mr. Moulton stated that the next morning someone could
come in to the code office and get a permit.
Mr. Straub suggested adding a section to the letter that lists the final materials that were received
that would include the names and dates of any final plans or stormwater plans or landscape
drawings. The Board agreed.
Ms. Demers stated that she spoke with LeMarr Clannon of the Maine NEMO (Nonpoint
Education for Municipal Officials) Program and she would like to know which meeting she
should attend in October. The Board agreed to hear the presentation at the second October
meeting (October 20th).
Ms. Demers asked Kate Pelletier to let the conservation commission and other interested parties
know about the meeting.
Mr. Stirling asked Kate Pelletier if she had heard anything about any interested Planning Board
alternates. Kate Pelletier stated that there was one applicant who Roberta Orsini was going to set
up with the Council for an interview.
Motion by Mr. Parker, second by Ms. Demers to adjourn the regular meeting. The meeting was
adjourned without objection at 8:58 PM.
Attested by:________________________________ Date:___________________________