The meeting began at 7:01 p.m. Present: Chair, Carol Billington, Brian Libby, Eleanor Dudek, Chris Parkin (arrived at 7:30 p.m.), Wayne Newbegin, Gus Favreau and Bill Foster. Staff present: Bud Benson, Planning Administrator and Donna Sawyer, Planning Board Secretary.
Approval of previous meeting minutes
Wayne Newbegin made a motion to accept the March 5, 2007, meeting minutes and Gus Favreau seconded the motion. There was no discussion. All in favor and motion passed.
Approval of Findings of Fact for:
COTTAGE SETBACK/Scott Batchelder, Sr. – Map 21, Lot 57, 58 Shore Road
Shoreland Zoning Review
Wayne Newbegin made a motion to waive the reading of the Finding of Fact and Brian Libby seconded the motion. All in favor and motion passed.
Wayne Newbegin made a motion to accept the Finding of Fact and Brian Libby seconded the motion. All in favor and motion passed. Chair, Carol Billington, said the Finding of Facts were on file at the town office and are a public record.
COMMUNICATION:
Elderly Housing/Remarkable Homes – Mark Floor – Map 10, Lot 64-2 and 64-2, Rose Lane
Site Plan Review
Mark Floor, of Remarkable Homes, came forward and thanked the Planning Administrator for such a comprehensive review of his proposal. He said that he was pleased with the architectural design of the new Norway Savings Bank which is being built next to his project. He said that his elder housing concept was very much along that design and he was considering cape style with a farmer’s porch on front and a separate patio area in back. He said he will name it Gardenside, it will have 32 units and set back from the roadway. The proposed layout leaves room for good soils for septic designs. There will be an association and the roadways will probably be association too. Wayne Newbegin asked if Orchard Road would be included in this project and Mark said it could be discussed at the
workshop.
The project was scheduled to go to workshop on Monday night, April 9th at 7:00 p.m.
UNFINISHED BUSINESS:
01-12-01-03 WILDLANDS CLUSTER SUBDIVISION PHASE 2/BUSQUE CONSTRUCTION CO., INC. - MAP 12, LOT 1, BOUNDARY ROAD
Subdivision Plan Review Received Preliminary Approval on December 2004. Waiting for DEP.
No new items on this project. Brian Libby made a motion to table this project and Wayne Newbegin seconded the motion. All in favor and motion passed.
05-08-07-06 WILDWOOD (formerly CHADBOURNE ROAD SUBDIVISION)/Gilbert Homes – Map 19, Lot 56,
733 Chadbourne Road
Cluster Subdivision Plan Review
Brian Libby made a motion to table this item and Wayne Newbegin seconded. There was no discussion. All in favor. Motion passed.
02-12-04-06 Route 25 Business Park/Mark Floor – Map 10, Lot 11, 225 Ossipee Trail West
Subdivision Review
Mark Floor came forward and recapped by saying he is trying to sell the farmhouse on this property that has been cut off by the construction of the road that caused setback issues for that farmhouse lot. He has received a consent agreement from the town’s Council.
Bud Benson said he stopped the process when the setback issue was discovered. Bud said it would be good to schedule a site walk to see the lot because there are a lot of other issues to be addressed. Bud said a performance guaranty is needed for the Route 25 improvements and to finish paving much of the road and the fire tank. Bud said that subdivision standards require the road to be paved to town standards.
Mark Floor said there is no need to go forward with this request because he thought he could do an incremental development with a 2-lot split. He said he thought that he could sell this lot as it was without other improvements and believing that the performance guaranty wouldn’t be required until Phase 2 was ready for development.
Bud Benson said there were numerous issues and it included the driveway into the farmhouse lot coming off the new road and the closure of the driveway currently off Route 25. Bud Benson suggested a site walk. It was decided that each member would do a site walk and it would go to workshop next Monday, April 9th.
02-02-06-07 STROUT BROOK ESTATES (formerly Wheaton Way Subdivision)/A & H Land Development, LLC, Map 8, Lot 9, Wheaton Way
Subdivision Plan Review
Dennis Harmon, of A & H Land Development, was present to discuss this project. Chair, Carol Billington, suggested a site walk on Monday night, April 9th. The site walk was scheduled to begin at the site on the 9th at 6:00 p.m.
01-03-05-07 Durgin Farm Animal Husbandry/Robert Harmon & Amanda & Andy Gervais – Map 19, Lot 19D, 52 Whites Bridge Rd
Site Plan Review
Chair, Carol Billington, said a site walk was held for this project and she is not aware of any issues. Amanda Gervais, soon to be new owner, came forward and asked if any member had a question of her. Wayne Newbegin made a motion to approve this project with conditions. Brian Libby seconded the motion. All in favor and motion carried.
Conditions of approval are:
1. This approval is limited to animal husbandry with associated riding arena as shown on the plan. The Board does not approve single family residence or family apartments.
2. Applicant has agreed to provide a total of 82 parking spaces. Ten shall be as shown on the plan near the proposed barn and a seventy two car overflow parking area to be reserved within the field near the riding arena.
3. This approval is dependent upon, and limited to, the proposals and plans contained in the application and supporting documents submitted and affirmed by the applicant (either orally or in writing) and that any variation from the plans, proposals, and supporting documents are subject to review and approval by the Planning Board, except for minor changes which the Code Enforcement Officer may approve.
Robert Harmon, present owner of property, asked to clarify that at some time in the future a single family home could be built on the property. Carol Billington and Bud Benson said that when the owners wanted to build a single family home, the permit is issued by the Code Enforcement Officer and the project does not need to come before the Planning Board for that permit.
02-03-05-07 Pit Stop Fuels/Dana Lampron – Map 10, Lot 95, 125 Ossipee Trail E.
Site Plan Amendment
Lee Feldman, Sebago Technics, was present representing Dana Lampron, owner of Pit Stop Fuels. Mr. Feldman distributed a package of pictures that included properties within the Village Center zones in Standish.
Gregg Cunningham, attorney with Bernstein, Shur, spoke next. Attorney Cunningham raised a procedural issue that involved one of the Planning Board members and it concerned a depiction of the landscaping mockup for the property and an email to all Board members concerning this plan. He said that Eleanor Dudek, Planning Board member, should recuse herself from the vote. Her email involved evidence before the Board and she is very critical of the evidence. Furthermore, she is wrong about the perspective from which this photograph was taken and it raises the concern that Mr. Lampron may not get a fair hearing in the process. Mr. Cunningham further stated that it raises the concern that there is communication between Board Members. One email raises serious concern for his client. It is in
violation of the Freedom of Access Act which prohibits executive sessions, communications between Board members outside of the public eye. Attorney Cunningham felt it was a violation of Mr. Lampron’s due process and not only reflects a bias on a part of one Board members and she is clearly critical of this project and for no reason. This may cause unfavorable fairness in the process overall. Maine has a conflict of interest law that relates to appearances of impropriety and this rises to the appearance of impropriety for the Board.
Chair, Carol Billington, said that she was aware of the situation and was going to discuss the issue at the end of Mr. Feldman’s presentation. She was happy to have the discussion now if that is what the client wanted. Attorney Cunningham preferred to have the discussion now because he was uncertain if Ms. Dudek might taint the proceedings even further. He wanted the action to take place immediately and he wanted a vote that resulted in the recusal of Ms. Dudek.
Eleanor Dudek interrupted and said she would be happy to recuse herself from discussion.
Wayne Newbegin made a motion to table the discussion on this until the Board had time to talk to the Town Attorney and to see what the status is of the Planning Board. Chris Parkin seconded the motion. Carol said that a recusal decision can be made by the Board or it can be volunteered by the person and it would end the action. If a member of the Board feels it is in error and wants to stay deliberating on the application, then it is up to the Board to decide if it a wise idea. Eleanor Dudek said it was a good idea to consult the town’s attorney rather than having to do what the applicant’s attorney is asking.
Wayne Newbegin said he thought the discussion not only involved Eleanor Dudek but each member’s integrity. Wayne said if each member’s integrity is being brought into play, he wanted a legal opinion.
Carol said that Bud Benson, Planning Administrator, had sent each member (this afternoon, April 2nd) via email the law regarding “Ex Parte” communication and she is prepared to read it into the record. Carol said that the law says that members are to come to the meetings with no preconceived decisions and that they are open minded to the material presented and other testimony, as well. Bill Foster said that before he was on the Board, he spoke out about a project in his area. So when he got on the Board there was a little change to the project. Bill Foster said it was written in the memo that he should recuse himself from voting. Bill saw no reason to table this item.
Mr. Benson, Planning Administrator, explained to the members of the public what happened. He said Eleanor received an email from him on Friday morning, March 30th. Over the weekend she looked at it and made a comment on it and replied to all of the Planning Board members. Mr. Benson said this is the first time he has seen such a communication. and he wrote to the whole Board this afternoon (April 2nd) telling them the following and he read from the email that said “Board members are not to communicate with the rest of the Board about a project except during a public meeting where the applicant has a chance to hear what is said and to respond to it. Eleanor, I need to remind you and all of the Planning Board members about what is called Ex Parte communications.
The attached document is a partial copy of the Maine Municipal Association Planning Board Manual. Ex parte communications are illegal in that everyone needs to make their decisions on the factual evidence and the applicant needs to be able to respond to any comments about his evidence. Please read the attached document and hopefully it will clear up the issue.” I don’t think this “Ex Parte” communication should be a big issue but I believe the correct way to deal with it is that Eleanor should read her email into the record so that the general public can hear it near the beginning of the Pit Stop agenda item. If you have any questions, please give me a call.”
So she was prepared to read her email and her opinion and the public when this meeting started.
Bill Foster said he didn’t see a problem with this issue and her email didn’t mean anything to him. Eleanor Dudek responded briefly by saying that the applicant was very adamant that this is a new application. So it shouldn’t matter that she was a member of the public when that application was on the agenda. This is a new application with a new structure on the site. Carol asked Eleanor if she would like to have a legal opinion on this issue of a new application. She said “Yes”.
Attorney Cunningham said that the discussion is not about the Board as a whole but the impact of this email and the affect of allowing the Board Member to continue on the process going forward. What trust can an applicant today and future applicants have if there is an indication that somebody can communicate outside of the public realm and get away with it. Attorney Cunningham continued by partially reading from Ms. Dudek’s email to the others and he quoted, “I am responding to this photo to urge Planning Board members”. In other words she was trying to convince the members of a position. He found it hard to believe that this was a mistake in replying to all of the members. Attorney Cunningham felt it was clearly an intent to get to each and every members and to convince
you that the landscape plan was a misrepresentation. It is inaccurate and offensive to his client. Further, there has been testimony in the past by Ms. Dudek at hearings on this site. his is a new application, yes, but it is an existing site and it is an amendment to the site plan. There are issues related to the existing site that are going to be discussed tonight and you have a member of your board who not only sent this email but vocally opposed to this project in the past. That combination is disastrous for any result that comes out of this Board, if she is allowed to remain. Finally, Mr. Cunningham, urged the Board to not table this item tonight. By tabling, you will be adding to the injury to Mr. Lampron and his project by delaying this further as a result of no action of his own, but by action of one of your own. Urge your Board Member to recuse herself or call a vote of your board to remove her.
Gus Favreau said he has been asked to rush through items before. Previously they were told a site visit was not needed. Now we are being asked to rush again and he said he resents the fact that we are being dictated to. It has to be our decision, we need to look at the long-range impact on this community and we need to deliberate carefully so that if the site is approved, it is approved after very careful thought. If it is not approved, it is not approved also after very careful thought. He said he was concerned about trying to be rushed through this project’s decision.
Chris Parkin spoke next and he referred to Eleanor Dudek’s comments as being on the record against this project before she served on this board. Wouldn’t that logic apply to somebody who voted against the project who is already on the Board and the project was amended later? Mr. Cunningham said that all Board Members have a duty to render your own opinion based on the evidence that comes before you. They may be positive or negative and may be based in part on your own personal perspective on the issue as long as you voice it at the meeting. A member of the public who hasn’t necessarily seen all of the evidence and who wasn’t sitting on the board reviewing the application, who voices an opinion, has created a bias that you as board members when you do review the entire
application and vote negatively isn’t voiced. There is a very clear distinction. A member of the public who is not engaged in the process hasn’t necessarily seen all of the evidence and somebody who is engaged and has seen all of the evidence and perhaps opposes it.
Chris Parkin questioned why the attorney brought up Eleanor’s past actions on this project? Chris said to recuse Eleanor because of this email I one thing, but to bring up past actions is another thing.
Carol asked for a vote. Voting in favor of motion: Gus Favreau, Wayne Newbegin, Carol Billington, Chris Parkin and Eleanor Dudek. Opposed: Brian Libby and Bill Foster.
Bill Foster asked what is the legal opinion they are seeking? Carol Billington said that Mr. Lampron had an attorney present telling the Board what to do and she is not comfortable with the Board not being represented with an attorney. She also said she would like to know if Eleanor can or cannot be part of the vote either to approve or deny. Some discussion followed between Bill Foster and Mr. Benson regarding recusal, etc.
03-03-05-07 Cottage Setback/Stephen Gallant – Map 47, Lot 4, 5 Crescent Shore Drive
Shoreland Zoning Review
Kurt Christensen, builder, was present to represent the applicant, Stephen and Joyce Gallant. He said he was before the group for a cottage setback issue for his clients. He said the project was before the Board 4 or 5 years ago and the recommendation was that the house be moved back 10 feet. This is a new application and a new building envelope and basically the owners want to tear down the existing building, replace all of the footings. It is basically on concrete posts that are not below grade, not up to code and whole purpose is to put in some sort of secure foundation, rebuild the home with 30% expansion upward. They would use the same footprint and keep the cottage in the same location. If it were to move back 10 ft. there is a good possibility that a full foundation could be
built. They are willing to forgo a full basement if they can do the work and keep the same footprint. If the cottage were to be moved back and a full foundation was put under it, there would be 1,500 sq. ft. of living space added. They are willing to forgo this if they could do the project and keep it in the same footprint. They want to replace or repair the foundation as it is to whatever extent it can be.
Chair, Carol Billington, asked for a discussion. Wayne Newbegin, Gus Favreau and Eleanor went on the sitewalk and Wayne said there is room to move back 10 feet. There was discussion among the members. Carol Billington said there are 2 options: 1) Deny the application as presented and state the reasons, 2) Approve with list of conditions with one of the conditions being move back 10 feet. Mr. Christensen asked if the Board could meet the owners half way and move it back 5 feet? Carol stated it is to the greatest practical extent possible and the Board looks at trees, septic system, setback lines.
Wayne Newbegin made a motion to approve this project with the suggested conditions as presented in Bud Benson’s memo to the planning board members and add to the approval that the cottage is to be moved back 10 feet. Chris Parkin seconded the motion. All in favor.
The conditions of approval are:
1. Planning Board approval of this site plan showing “Gallant Property” produced by Pinkham & Greer and date stamped “Received Feb 15, 2007”, is limited to structure setbacks to the maximum practical extent (68.3’ from seasonal high water setback) and the approval is limited in duration to a period 6 months from date of approval.
2. Existing camp with seasonal high water setback of 58.3 ft as shown on the plan prepared by Pinkham and Greer dated February 12, 2007, is to be removed. A new proposed dwelling is to be built with water setbacks of 68.3’
3. Applicant’s camp appears to be within the 100-year flood plain and will need to prove to the CEO that the lowest floor is 1 ft above the 100-year flood elevation.
4. The Stormwater infiltration plan, Erosion & sediment control plan and a re-vegetation plan (include plantings on the front side of the property), must be submitted by applicant and approved by CEO.
5. This approval is dependent upon, and limited to, the proposals and plans contained in the application and supporting documents submitted and affirmed by the applicant (either orally or in writing) and that any variation from the plans, proposals, and supporting documents are subject to review and approval by the Planning Board, except for minor changes which the Code Enforcement Officer may approve.
Discussion ended and all members voted in favor. Motion passed.
New Business:
Public Hearing – Order No. 25-07 Amendment to Standish Town Code, Chapter 1-81 and Chapter 252 – Multiple Sections – Performance Guaranty
Carol Billington said that the town code has required performance bonding when new roads within subdivisions are created. The changes are basically to change the word “bond” to “guaranty”.
Ms. Billington read the new wording in Section 181-71.3 Performance guaranty as follows: “A performance guaranty shall be provided to insure the completion, proper installation and maintenance of all grading, paving, storm drainage, utilities and other improvements for public benefit or use in accordance with Section 252-22 of Chapter 252, Streets and Sidewalks. The applicant shall be required to maintain all improvements and provide for snow removal on streets and sidewalks until acceptance of said improvements by the legislative body.
Ms. Billington said the changes also involve Sections 181-83, 181-85, 181-107 is struck out, 252-22 and 252-36. She also explained briefly how the process would work for a developer.
Bud Benson said that a subdivision plan would have the following wording added to a final plan as a condition: “In lieu of a performance guaranty for the construction of project improvements, no lot or parcel of land may be conveyed and no building permits for any lots or any portion of the development shall be issued by the Code Enforcement Officer until the completion of all streets, utilities and other improvements for public benefit or use in accordance with this plan and all applicable ordinances of Standish. If the applicant wishes to convey a lot prior to all project improvements being completed, a performance guaranty equal to the cost of the remaining improvements shall first be approved by the Public Works Director in consultation of the Town Planner and submitted to the Finance Director.”
Several Board members said these changes were long overdue.
Some discussion continued concerning having an attorney present when an applicant has an attorney in attendance.
There were no more items before the members. Brian Libby made a motion to adjourn and Wayne Newbegin seconded the motion. All in favor and motion passed. Meeting adjourned at about 8:20 p.m.
These minutes were prepared and submitted by Donna Sawyer, Secretary to the Planning Board.
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