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Planning Board Minutes 11/17/2009

November 17, 2009

Present: Cheryl Dionne, Richard Clough, Mimi Demers, Bill Straub, Joel Moulton and Jim Fisk (Planner).

Not Present: John Stirling.

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

Chair Dionne called the Planning Board meeting to order at 7:02 PM.

Mr. Moulton will be a voting member tonight as Mr. Stirling is not in attendance.

October 20, 2009 - Planning Board Regular Meeting: Motion by Mr. Straub, second by Mrs. Demers, passed unanimously with Mr. Clough in abstention due to his absence on 10/20/09.


1. Save the Date! Low Impact Development Seminar, December 2, 2009 in Portland.
- Flyer received. Mrs. Demers discussed having attended a LID seminar over a year ago. Mr. Moulton stated he would like to attend if he is available. Mrs. Scott will email Board members with further information for those interested in attending.

2. Letter from Chris Vaniotis, Town Attorney, Bernstein Shur dated November 10, 2009, re: MSP#08-02 - Our Lady of Angels Parish Site Plan.

Chair Dionne confirmed the Planning Board members read and understood the letter from Chris Vaniotis, Town Attorney. The letter regarding the application was sent back to the Board to be further reviewed for the glare issue.

The Board discussed the question posed by Mrs. Demers if all the Stormwater issues had been adequately addressed, and noted that DEP permits had been issued, therefore it was no longer an issue.

Mr. Straub questioned Mr. Fisk if the ZBA remanded the application back to the Board due solely to the lighting issue.

Mr. Fisk stated he does not agree with the Town Attorney, and does not believe the original Planning Board proceedings continue. He noted the Board's decision for permit approval was reversed by the ZBA, and the ZBA does not have the authority for de novo review of Planning Board applications. The ZBA cannot pick parts of an application approval they like or dislike, and then tell the Board what to do. They can identify one part of the criteria was not met, and if one part of the criteria is not met then the Planning Board approval is reversed. If the Board wants to review the attorney letter in context of the ZBA Findings of Fact, their minutes and the law, that would be one avenue, while the other avenue would be to agree with the Town Attorney, and request the applicant come back to the Planning Board with further review of the glare issue. Mr. Harmon has provided him a report provided to him by the engineer that did the lighting design. Prior to forwarding this report on, he wanted to know the Board's wishes on how to proceed with this matter regarding continuing with the original proceeding as noted by the Town Attorney. If the Board wishes to do this as advised by the Town Attorney, he will forward the Board the materials submitted so they can continue with the review for the single glare remedy as advised. The applicant that received the ZBA appeal has the ability to show other criteria from the ZBA that they felt the Planning Board was contrary in their application.

Mr. Straub noted his review of the ZBA materials, and discussed the ZBA, on a motion, concluded that the matter be sent back to the Planning Board per applicant request for further review of the glare issue. As he understood Mr. Vaniotis' letter and the motion made, there is a legal basis for continuing with the original application. However, he understood the broader concern, as noted by Mr. Fisk, relating to how the system works.

Mr. Fisk noted that the ZBA also stated that the Planning Board's decision was reversed, and the only decision made by the Planning Board was to approve the site plan permit. He does not believe the ZBA has those powers.

Mr. Straub agreed the decision of the ZBA was to reverse the Planning Board approval but the conclusion leading up to that was for the Planning Board to further review the lighting glare issue.

Mr. Fisk noted the ZBA was the avenue for the remedy specific to the glare issue. The question is whether they come back as a new site plan application or whether the old site plan permit exists.

Mr. Straub questioned the basis of the Board questioning the opinion of Mr. Vaniotis. Mr. Vaniotis has found a legal basis to proceed with this application specific to these circumstances although he understands the issue of the ZBA being able to accept or deny an application, and discussed the ZBA having reversed the Planning Board's original decision. Per the letter, the Board can decide whether to choose to start over with a new application permit or not, and the Planning Board would need to agree on how to proceed, and consider whether it was more fair or unfair to pick up where the Planning Board left off.

Mr. Fisk stated the ZBA reversed the Planning Board's action and the permit no longer exists.

Mr. Straub questioned what are the risks of the Planning Board going forward with the original application review.

Mr. Fisk responded the need to consider the absurdity of two approvals of one permit, or the denial of a permit bases on an approval of a permit in re-review of a granted permit, it is denied. In both instances, it gives standing to both the permit holder and the appellant to appeal to Superior Court as a process error. Therefore, Mr. Fisk does not believe this permit exists any longer because it was reversed by the ZBA, which is the proper avenue for that. Mr. Vaniotis does not agree, and believes the original proceedings continue. Mr. Fisk is familiar with the ZBA providing remedies, and the remedy would fall under a new permit. The new permit would no longer fall under the old Stormwater management program nor would be considered a pending application, and would need to come under the new Stormwater management program with the new fees and inspection requirements. Mr. Vaniotis believes that the applicant still has standing under their original permit and the old ordinance, and just needs to fix that one issue because that was a part of the ZBA conclusion. Mr. Vaniotis does not think the Planning Board need further review of the other parts of the ZBA deliberation.

Mr. Straub discussed the letter and the reference the ZBA found one error in a multi-faceted decision, and ZBA's authority to remand. However, Mr. Fisk states that the ZBA did not remand but reversed.

Mr. Fisk agreed, and stated the ZBA does not have the ability to remand, only to reverse a Planning Board decision. The ZBA has a very narrow authority of finding contrary an application for criteria as well as a very narrow area of authority to reverse a Planning Board action. The ZBA can remedy by that remand or by recommendation but they did not, they reversed.

Mr. Straub noted either way, the ZBA reversed it, and that although the opinion of Mr. Vaniotis is interesting, it is not relevant.

Mr. Fisk confirmed that if the Planning Board chose to continue with the original application, that process could be overturned by this fundamental issue for which Mr. Vaniotis does not specify on how to proceed. The Board could request Mr. Vaniotis refine his opinion.

The Board expressed confusion over this issue.

Mr. Fisk noted a 45-day period of the appeal process during which time the permit holder can appeal to Superior Court. The ZBA made a decision that same night they heard the case, at which time the appeal period began. Mr. Fisk notified the permit holder on the 45th day, which is up now, and recommended they come back as a new permit for review. The last available option is that the appeal can be reversed by the ZBA for which Mr. Fisk noted he has worked on one appeal that has lasted for years. However, one way to get this single issue addressed is for both parties to come to a written mutual request and go back to the ZBA for a rehearing, which has no time limitation. Then the appeal can be removed and the permit that was granted would be reinstated. This process remains open to both parties without a time constraint

Mr. Clough questioned if the applicant would have to come back with an amended plan.

Mr. Fisk responded that it is not specified in the Town's ordinance so much as amending the permits for recording because we do not record site plans or have any alteration requirements.

Mr. Straub reiterated the question posed by Mr. Clough that if the ZBA reversed the reversal the plan would come back in for subsequent review of the changes.

Mr. Fisk agreed and noted that although not required, it was the best thing to do.

Mr. Straub stated that as presented by Jim Fisk, if all the parties agreed to a solution, the proper way to do this is for both parties to take this agreement to the ZBA for the reversal of the appeal. Otherwise, there is no permit.

Mr. Clough noted he agreed with Mr. Fisk, and stated he did not believe the ZBA has the authority to reconsider, and noted the Planning Board does not get involved in the negotiations between both parties as to how they want to proceed.

Mr. Straub noted the language of the ZBA does state that the decision is hereby reversed, and this was accepted in their minutes. Therefore, the remedy seems to be for both parties to come to a mutual agreement.

Mr. Fisk noted if the Planning Board wanted to be conservative in their reading of the language, the applicant would have to come back with a new application, which is clear.

Mr. Straub questioned Mr. Fisk as to how the Board should proceed with a possible advisory action through the planner.

Mr. Fisk stated he could forward the materials provided to the Board for further review at their December 1, 2009 meeting, and at that time, the Board can request the applicant seek a mutual agreed resolution to be presented to the ZBA, and the Planning Board can take an official action at that time. Prior to a rehearing by the ZBA, the Planning Board could accept the letter provided by the lighting engineer, or accept an on-site sighting specialist review the glare, or the Planning Board could review the other criteria mentioned in the ZBA findings and hold another public hearing.

Mr. Straub discussed the professional opinion of Mr. Fisk, for which he agrees, that proceeding with the original application may not be proper.

Mr. Fisk agreed.

Mr. Clough noted that the ZBA decision was reversed, and that is the basis for Planning Board action with a new application or parties to come to a mutual agreement.

The Planning Board and Planner agreed to have this on the next agenda for December 1, 2009.

3. Memo from Joe Rousselle dated November 13, 2009, re: Trash Dumpsters and Resident Request.
- Item to be placed on work plan for further review.

4. Code Book inserts provide by Barbara Bennett, Clerk: Provided to Board members at the dais.

5. Land Use Planning Booklet 2010: Provided to Board members at the dais.
1. Letter from Tom Harmon dated November 10, 2009, re: MJS#09-01; Harold K. Main, III & Susan C. Main Subdivision.

Tom Harmon presented materials in support of an amended subdivision plan for the Main property with the dates and familial relations for the lot transfers not provided in the original application. He noted that the Mains purchased 27 acres in August 1998, and then sold a portion of the property to the McKenney family in 2004 for the assumed price of roughly $45, 000. With the new family exemption lot, there is no longer frontage on Thurrell Road.

Mr. Fisk confirmed the application was changed to reflect the proposed amended site plan and not a new subdivision plan.

Mr. Straub referenced Section 121-4B, Planning Board Review in the Subdivision of Land chapter of the Ordinance. He would like an explanation at the next meeting as to details of the roadway built on this property.

Mr. Harmon noted he was familiar with this section of the Ordinance, and that he would provide clarification at the next meeting.

Mr. Harmon questioned whether he could be placed on the next meeting.

Mr. Fisk stated he could be placed on the next agenda if all the materials were provided.

Mr. Clough questioned the need to hold another public hearing due to concerned abutters.

2. SP#09-09; Rivers Photo & Digital (Owner, Jean Coughlin): Change of Use - Retail/Professional, Non-Retail Office Space - 243 Main St. (Map 28 Lot 7), B1 Zone.

Jean Coughlin, applicant and North Berwick resident, described how she recently became the owner of Rivers photo finishing business, and would like to establish her business closer to home. As her business relies on customer loyalty, it would be a good match to be located in South Berwick. Her store will be partially retail with the selling of frames and albums, with services including the printing of large posters and prints, and would be a film-developing pick up and drop off location, as well as a place to hold classes. Standard daily hours with an occasional evening class. Ms. Coughlin noted that if she were to decide to incorporate developing of film, she would require approval from the Sewer District. She is familiar with working with the Massachusetts DEP specific to the wet processes that take place in the lab.

Mr. Straub noted this was a great use of the property.

Motion by Mr. Clough, second by Mr. Straub to grant the site plan application for SP#09-09, passed unanimously.

Chair Dionne informed the applicant of the 30-day appeal process.
1. Work Plan: Continued.

Chair Dionne discussed the following items to be placed on the work plan:
- Memo from Dennis Smith dated in October 12, 2006 re: Changing the review time to reflect a 45-day period for new building permits while the review period for other structures including sheds and decks be 10 days as well as all non-dwelling units not requiring full set of plan. The last recommendation is for all permits to be reviewed by the Code, Planning, Public Works and Finance departments.

Mr. Fisk noted that most of these recommendations have previously been accepted by the Town. Currently, both the Planner and Public Works Director sign off on every building permit with Mr. Fisk providing input on zoning while Mr. Oliver on sight distance and related issues. The Business Office is not involved because the State of Maine removed those requirements. These regulations were changed by the Town Council sometime in 2006/2007. Mr. Clough requested a copy of approved changes.

Mr. Straub stated he felt in his time with the Board, a little over a year, a lot had been accomplished.

Mr. Fisk discussed one of the most important areas for future Planning Board review includes the flood maps and flood zones. Currently, the Town has a flood program in place as required by the Federal government but there remain technical changes to be made.

Mr. Fisk discussed how at this point, a developer cannot identify a private road in perpetuity, and there is no definition of a private road outside of subdivision. The Board needs to amend or modify the standards such as either limiting the number of houses on a private road or modifying the limit of 5 houses. There still is an existing lawsuit between the Town and a property owner specific to a variance granted by the ZBA for which the Town challenged the appeal to allow further development of more than 5 houses on a private road.

The Board discussed a lack of road standards for condominium driveways.

Mr. Moulton questioned the different length requirements for driveways versus roads.

Mr. Fisk responded that private ways have no specified length but a cul de sac is 600 feet. The Board should further review new access management standards that include removing a maximum length requirement and substituting it with number of trips.

The Board confirmed that public safety is an important aspect in road policy review.

Mrs. Demers noted concern of long cul de sacs breaking up important natural habitats.

Chair Dionne noted that all sidewalks constructed need to be ADA (American w/Disabilities Act) compliant.

The Board requested a review and analysis of the Ordinance to identify all road references in order to adequately address all roadway standards in zoning.

Mr. Clough questioned whether there was any follow up from Mr. Schempf to the Board regarding the BR rezoning of Portland Street, and if the Council was still interested.

Mr. Fisk responded the Council was still interested in the question of rezoning areas in town.

Mr. Fisk that there will be no future building permits issued to replace structures located on the coast. He will follow up with the FEMA coordinator to question whether there are any changes in the flood plain ordinance.

Mr. Fisk noted previously approved amendments for signs, accessory apartments and Shoreland zoning.

The Board inquired if Town activities fall under the same guidelines and requirements as property owners. Would a timber harvest permit be required for harvesting in the Town Forest. Mr. Fisk will review and research this issue as some towns have exemptions for town activities. He will provide a memo specific to municipal projects.

Mr. Fisk noted he has the recent Transportation Study that was provided this week. He gave his copy to Mr. Straub for his review. Conclusions of the Study included a need to address more pedestrian areas, no light in the downtown and no bypass to be constructed.
Mr. Fisk informed the Board:
- An orthodontist will be locating to the building previously home to South Berwick Yoga has completed the HDC process, and did not have to come before the Planning Board as there services fall under the same land use category for professional services.
- Brian McNulty has moved his real estate office, Portico Realty, back to his original office on Main Street.
- The Town held a ribbon cutting ceremony for Rockin' Rooster last week, and one councilor stated he thought it the best ribbon cutting yet.

Mr. Clough noted he would not be able to attend the December 1 meeting.

Mrs. Demers questioned why the Public Hearing guidelines were not posted as previously requested by the Board. It was agreed to have Mrs. Scott bring copies of the guidelines to post and have for the pubic at every Planning Board meeting. Mrs. Demers questioned why the draft Shoreland Zoning ordinance was sent to SMRPC.

Chair Dionne responded that the draft Shoreland Zoning ordinance was reviewed by SMRPC per a Town Council request.

Mr. Fisk stated he met with DEP, and was asked by Mike Morse, DEP reviewer, why the Town had SMRPC review the draft when DEP would review it free of charge. He noted the DEP has already accepted the map, which is the more important part of the ordinance. The Town Manager was supposed to send a letter, and Mr. Fisk will follow up at the staff meeting this Thursday. The Board requested a status follow up.

Dates & Times for Upcoming Meetings:
December 1, 2009 - 7:00 PM Planning Board Regular Meeting
December 15, 2009 - 7:00 PM Planning Board Regular Meeting

Motion by Mrs. Demers, second by Mr. Clough to adjourn the meeting. The meeting was adjourned without objection at 8:46 PM.

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