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Planning Board Minutes 12/15/2009

December 15, 2009

Present: Cheryl Dionne, John Stirling, Bill Straub, Joel Moulton and Jim Fisk (Planner).

Not Present: Richard Clough and Mimi Demers.

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

Chair Dionne called the Planning Board meeting to order at 7:06 PM.
- Mr. Moulton will be a voting member tonight.

- November 17, 2009 - Planning Board Regular Meeting: Minutes are pending.
- December 1, 2009 - Planning Board Regular Meeting: Minutes are pending.

The following members of the public audience reserved time to speak to the items noted:
- Brad Christo, 195 Oldfields Road - MSP#07-01.
- Dan Boyle, Historic District Commission Chairman - MSP#07-01.
- Norma Keim, Witchtrot Road - MSP#0701.
- Nora Irvine, 60 Bennett Lot Road - MSP#07-01.
- Wendy Pirsig, 35 Wadleigh Lane - MSP#07-01.
- Sue Roberge, 9 Berwick Road - MSP#09-02.
- David Vachon, Flynn Lane S - MSP#09-02.
- Pat Vachon, Flynn Lane S - MSP#09-02.

1. MSP#07-01; Multi-Family Site Plan - 25 Academy Street: Continued.
- Memo from the Planning Department dated 12/11/09 re: MSP#07-01 Multi-Unit Site Plan.
- Original Approval Letter and Criteria for Site Plan permit for MSP#07-01 dated September 18, 2007.

Chairman Dionne opened up discussion with questions or concerns of Board members.

Mr. Straub stated he had many unanswered questions but noted his overarching concern was the fact that the existing building is now gone, and questioned the ramifications of this fact as the existing structure was an integral part of the 2007 approval.

Mr. Stirling noted he had the same concerns as Mr. Straub.

Mr. Fisk stated there had been many in-house discussions regarding this issue. He stated that the Town Manager reminded him that the Planning Board has no enforcement powers, and would like to ensure the project is completed per the site plan. The Manager requested through Mr. Fisk the Board stick to the agenda item and review the application as a permitted project. The Building Inspector believes the building permit is still valid, and deemed the collapse of the building as a force majeure or an event out of the developer's control when renovating a building. This event does not invalidate the existing permit.

Chairman Dionne noted that at the time of permitting in 2007, Chairman Smith had noted on the Findings of Fact that "New Construction does not need to meet frontage requirements".

Brad Christo, 195 Oldfields Road discussed this as either a case of gross confidence or of gross incompetence, and noted the following points in context of the site plan review process:
1. All construction shall be in accordance of an approved site plan.
2. Section 140-77, F(5) - A certificate of occupancy shall not be issued by the CEO until such time as all construction conforms to the site plan and conditions as approved by the Planning Board.
Mr. Christo concluded that the continuation of this project would not fall under site plan requirements.

Mr. Fisk stated the opinion of the CEO is that this permit remains as a renovation, and therefore, should continue as such. The building structure is still within the original footprint of the previously existing building.

Mr. Christo referred to meeting minutes from 2007, and discussed the issue of the Board contemplating this application as New Construction or a conversion of an existing structure. At the time of permitting in 2007, the Board considered it a renovation due to the existing structure, and had it not had the existing structure, it would fall under New Construction. Currently, there is not enough road frontage for either a 2 or 3-unit building. Requested the CEO review these sections of the Code, pull the permit, and make the applicant come back before the Planning Board under a new permitting process.

Dan Boyle, Historic District Commission Chairman, noted the feeling of the HDC is that a building has been lost, and would like to explore ways in which to prohibit this from happening in the future. He is concerned that this could be used as a way around a demolition permit, and is curious what the Board will do.

Nora Irvine, 60 Bennett Lot Road, discussed her own experience renovating her 1790-year-old home, and how the building, though old, was very well built and not easily taken down. She noted that only if older buildings were exposed to the elements, would they most likely cave in. One would think that a builder would be aware of the potential for eminent collapse of building such as the one discussed. She further noted that the Town has previously required a homeowner to move their entire home as it was too close to the road. Mrs. Irvine concluded that an applicant might be directed to build to construction standards of 1850 for an older structure.

Norma Keim, Witchtrot Road, noted the home Mrs. Irvine previously discussed was built on an existing foundation only to be later required to be moved back from the road per Town regulations. She further noted concern for the streetscape of the area where the building collapsed, and feels the rules for this project should be addressed.

Wendy Pirsig, 35 Wadleigh Lane, discussed how South Berwick citizens agree that historic buildings are key to the economic vitality of the community. This building was over 150 years old, was in sound condition, and was just listed on the historic registry. Requested the Board consider the potential precedent this sets, suspend work at the site and take time to review the project and give it its due diligence. Requests that the Board conduct a thorough review of how the building was lost, and how the back wall of the original building was ripped off with the structure to be left for the next two years exposed to the elements.

Mr. Straub discussed the developer having come before the Board back in October when there approval was set to expire, and assured the Board the conditions of the original approval would be met, and he would maintain the structure of the building as it was integral to the project approval. In his opinion, this was not a case of force majeure because the developer took a series of actions resulting in structure failure. The existing structure was key to the original approval, and Chairman Smith's note regarding New Construction was premised on the renovation of the existing structure. Now there is a permit based on a historical building that no longer exists, resulting in indisputable new construction. Concerned the Board has no enforcement powers after conducting a very deliberate permitting process. He noted concern about setting a possible precedent with this application, and the Board would be spot zoning if they were to ignore this issue. The Board needs to inquire as to their enforcement powers, and take a position on this matter as to do nothing would be irresponsible of the Town.

Mr. Stirling noted the unfortunate state of the building, and that there was no building left to renovate. In order to rectify this situation and preserve the streetscape, the new building should look like it previously did with no modern windows and the same fenestration, and inquired as to legal methods the Board could act on.

Mr. Straub noted an appeal to the ZBA considering this a unique situation, and discussed the Board needing a legal opinion.

Mr. Moulton disagreed with the CEO and is interpretation of how the building fell. He noted suspicion that the building disappeared as soon as it came down. Only qualified contractors should deal with older homes. Understands the issue of frontage was previously approved. The issue that remains outstanding is that he does not agree with Town staff and their interpretation of force majeure, and the lack of staff enforcement.

John Flynn, 21 Academy Street, stated his lot directly abuts the property site. He stated that although hew as not a builder, it was obvious after a walk-through that this building was not salvageable, and that it would have to come down. He inquired as to the next step as he does not want this project to continue to linger. He would like to see the Board allow the applicant to complete the project.

Mr. Straub responded to Mr. Flynn that although his comments may be correct, this was not how the project was approved. He disagreed that this building was unsalvageable, and noted there were ways in which to jack up buildings in this state. He concluded that the possibility of this incident setting a precedent is unacceptable.

Chairman Dionne discussed requesting a letter from CEO regarding how this occurred, if this was a deliberate act and why it was considered force majeure. The CEO has every right to pull a permit. The Town Manager could clarify the Town's enforcement powers.

The Planning Board discussed a lesson learned from not requesting financial security.

Mr. Fisk noted he would follow up with the Planning handbook, a free, legal opinion from MMA, and it that opinion was not satisfactory to the Board, an opinion could be sought from the Town attorney. The Planning Board has implied police powers.

Mr. Straub discussed receiving an opinion other than from Town staff as he has received conflicting opinions.

Motion by Mr. Straub, "I move that the Planning Board communicate via letter to the Code Enforcement Officer, (copy to Town Manager and Town Council) expressing the PB's concern that the terms of the Planning Board approval for 25 Academy Street (MSP #07-01) have been contravened, and that current conditions are a violation of the SB Municipal Code section 140 -77 G. (3) which states
"All construction, performed under the authorization of a building permit or certificate of occupancy issued for a development within the scope of this chapter, shall be in conformance with the approved site plan".
The approval in 2007 (extended by the Planning Board in September 2009), was fundamentally premised on the renovation of the previously existing building. The owner failed to protect and renovate that building, it collapsed in early December and has been completely demolished. Therefore, we believe the clear provisions of those approvals no longer apply, and continued construction is not in conformance with the approved site plan", second by Mr. Moulton, passed unanimously, 4-0.

Mr. Straub requested Mr. Fisk immediately relay this information to staff tomorrow.

Mr. Fisk noted staff anticipated the Board's concern, and fully aware of this issue. He will follow up with the state statutes, Board handbook and a MMA opinion for further review of the matter.

Chairman Dionne thanked the public members for their input.

2. MSP#09-02; Our Lady of Angels Parish (Greater Portland Diocese) - Discuss and Take Action.
- Letter from Tom Harmon dated December 9, 2009 re: Our Lady of Angels Church Site.
- Revised Site Plan: Overall Site Plan (C2), last revised date 12/07/09.
- Revised Site Plan: Lighting and Landscaping (L1), last revised date 12/07/09.

Tom Harmon, agent for the applicant, stated they had reached an accord on some issues but not on others with the abutters. He submitted a revised plan indicating a new driveway location, which eliminates glare as it, is not directly across from the abutters' driveway. He noted the photometrics should remain the same though lighting at the driveway and road intersection will have to be increased. He will follow up with the MDOT regarding pole lighting location. A standard street light will be installed. Mr. Harmon further noted that the church is a permitted use in this zone and has specific standards for which they must default to since the Town does not have lighting standards. However, because of the dark surrounding, these standards can be lowered for which they have made their lighting plans somewhat dimmer as compared to the standards. Notes to the site plan include the right of the Town to ask for Stormwater maintenance logs per DEP requirements, and there will be no occupancy permit note as there is concern for the buffer. As the applicant has now met the ZBA appeal for moving of the driveway, he would like to able to move forward this project.

Mr. Moulton requested an independent evaluation of the photometrics although he does not dispute the study as submitted by Tom Harmon.

Mr. Straub noted progress made with the substantial revision to the site plan, and agreed with Mr. Moulton for an independent glare study although the applicant has substantially addressed the glare issue.

Mr. Stirling did not feel another study was warranted, and that the applicant has adequately addressed the issue.

Sue Roberge, 9 Berwick Road/Abutter to site, discussed the glare issue brought forth before the ZBA has a four-part issue: Car light from the driveway, parking and signage, and glare specific to foggy conditions due to the wet terrain. She is concerned about the magnitude of the project itself in this specific area, and was adamant the Board requested an outside, unbiased peer review study addressing glare for the project in its entirety. Ms. Roberge is unsure of the impact of glare will be especially during the months of October through March. She requested the applicant mark of the newly situated driveway so she could look at it at the site. She stated she was pleased the applicant made the site plan revision, and inquired if the Board would conduct another public hearing, would an approval be given at this meeting and what the next step would be.

Chairman Dionne confirmed this meeting was purely for site plan review.

David Vachon, Flynn Lane S, reviewed the ZBA findings, and noted that the previously conducted light study was in accordance to the existing lighting and safety standards required for this type of project. He thought by requesting the parish to conduct another independent study would solely serve as a study of the standards. He noted concern for the abutter but felt a second study was not needed.

Mr. Straub requested a second study in order to compare model results, characterize luminescence, and the ability to compare results to typical light levels and standards for these types of facilities.

Mr. Fisk discussed the Board conducting a fairly thorough review of the landscape and lighting plan, and felt that certain issues had been addressed with the use of timers. He did not think the photometrics issue could be resolved easily due to the necessity of minimal standards for turning and parking, and the DOT required light with a higher luminescence at the entrance. He stated he was not sure the Board overlooked criteria regarding fixtures and photometrics of the lighting plan. Noted the Board could conduct another site walk visit if they felt it was needed.

Pat Vachon, Flynn Lane S, discussed the ZBA lighting issue specific to cars, and noted they had worked very hard to address this issue with the abutters as a good faith effort. She noted that a facility of this type is allowed in the zone and has required standards that have been met. She stated it was time to move and let the property be bought.

The Board agreed to conduct a site walk this Friday, December 18 at 3:30 pm in order to properly review the lighting/glare issue.

Mr. Vachon respectfully disagreed that the Board needed another lighting study in order to verify site plan drawings and materials were accurate.

Mr. Harmon noted he has previously the Board a number of studies, and has never had the Board question them. He confirmed the plan revision, will review the Planner's landscaping notes, and will provide the Board with further photometrics information.

Mr. Moulton noted another lighting study would serve as another level of assurance.

Ms. Roberge stated that she has been involved in this review process since last May, and she is trying to protect her and Mr. Emery's property for now as well as the future. She stated she was not against people doing as they please with their property but was concerned that a sizeable 3-acre project on a 10-acre lot will be located so close to the road. She discussed the importance of abutter's rights, and as an abutter, she asked over and over again for the Board to carefully review the plans including the landscape plan that offers no buffering of headlights. She would like to ensure the Board took a thorough look at the plans so that when the project is complete, it is a great project. She would like the Board to request an independent lighting study. Ms. Roberge noted she had just received this information the prior day, and was doing her best to review the different site plans with limited time.

Mr. Fisk discussed the adequacy of the revised plan and a visual buffer for the ambient light in the atmosphere, to address the glare issue although he can easily draft an RFP if the Board so chooses unless they prefer to wait until after conducting a site walk.

Pat Vachon, Flynn Lane S, inquired if the lighting study completes the review process.

Mr. Straub responded that if the study were done in a professional way in conjunction with the moving of the driveway, he suspects the Planning Board would agree to their approval.

Motion by Mr. Moulton, second by Mr. Straub to seek an independent, photometrics peer review study to characterize the proposed lighting conditions and compare them to generally accepted standards for facilities and buffers of this type, conduction of a site walk, and a conclusion be made, passed unanimously.

Mr. Fisk will draft up an RFP to be reviewed by both agents, and will follow up the availability of lighting specialists to conduct the study.

- none.

1. Work Plan: Continued.

Chairman Dionne requested the Board hold off on the work plan until a full Board is present, and discussed conducting a workshop on January 5, 2010 instead of holding a regular Planning Board meeting.

Mr. Straub inquired if all references in the Ordinance regarding roads had been pulled and summarized for Board review.

Mr. Fisk noted he has previously sent the Board this information, and he will resend the Board these documents.

Mr. Stirling:
1. Requested Mrs. Scott forward updated contact information to the Planning Board.
2. Inquired about numerous trees marked for harvesting in the Town Forest.

Mr. Fisk responded that the Town Manager has the timber harvest application, and he is waiting for Mr. Schempf to forward it on to the Planning Board.

Mr. Moulton:
1. Discussed concern regarding enforcement by Town staff.
2. Discussed Planning Board member attendance.
3. Disagrees with the collapse at 25 Academy Street being deemed a force majeure, or an act of god.

Both Mr. Stirling and Mr. Straub agreed with Mr. Moulton, and noted concern regarding 25 Academy Street.

The Planning Board further discussed 25 Academy Street:
1. Looking toward the future for ways in which the Planning Board can avoid this type of occurrence (25 Academy St.);
2. Methods of enforcement for such blatant acts;
3. Financial securities as a way to enforce and ensure site plan criteria are met;
4. Mechanisms for architectural review especially for older buildings;
5. Third party engineer or reviewer aside from Town staff.

Mr. Fisk stated that concerning 25 Academy Street, the fenestration and proportions of the site plan and structure are correct and agree with the proposed site plan. The CEO has been in contact with the applicant in order to ensure the Town receives an end product everyone wants.

Chairman Dionne discussed conducting a workshop instead of a regular meeting at the January 5, 2010 meeting.

Dates & Times for Upcoming Meetings:
January 5, 2010 - 7:00 PM Planning Board Regular Meeting
January 19, 2010 - 7:00 PM Planning Board Regular Meeting

Motion by Mr. Straub, second by Mr. Moulton to adjourn the meeting. The meeting was adjourned without objection at 8:51 PM.

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