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Planning Board Minutes 04/12/2011
MINUTES
TOWN OF SEBAGO
PLANNING BOARD MEETING
7:00 p.m.
Tuesday, April 12, 2011
TOWN OFFICE BUILDING


I       Call to Order

Paul White called the meeting to order at 7:00 p.m.

Present: Chuck Archer, Donna Cook, Phil Lowe, Joe McMahon, Dick Perry, Tina Vanasse, Paul White, Code Enforcement Officer, Bob DeVilleneuve, and Recorder, Maureen Scanlon.

Guests present: Bill Thompson from BH2M Engineers, Don Loring, Marilyn Loring, Ann Marie Jefferson, Adam Beaulieu, Roger & Gwen Mercaldi Jr., Ramona & Gary Sleeper, Amy Jones, Fremont Jones, Linda & Jim Panzera, Roger Jones, Donna Jones, Debbie & Kevin Murphy, Linda Wright Sheehan, Kevin Sheehan, Mike & Becky Foley, Sherry Miller, Claudia Lowe, Joe Miller, Mike Borsetti, John Fitting, Jim Libby, Gretchen Terhune, Richard Terhune, Cindy Wilson, Francis Tighe, Roseann McMenemy, Lorraine LaForte, George Sawyer, Dan Tocci, Andy Pappas, Sandra Harriman, Brenda Harriman, Richard Lachance, Paula Nielson, David Nielson, Ann Phillips, Steven Hatch, John Schrader, Waldo Harwood, Cindy Harwood, Bill Harrop, Tucker Daigle, Sam Minervino, Jan Minervino, Frank St. Pierre, Jane Borsetti, Barbara Cutting, Chris Anderson, Bob Rayner, Deputy Fire Chief Alan Greene, Jeff Cutting, Selectman Allen Crabtree, Gail Irish, Bill & Linda McDade, Public Works Foreman Tim Mayberry, Bruce Weymouth, Jane MacDonald, Richard Aucoin, Steve Titcomb, Bruce Hart, Leslie White, John Swanson.  

II      Correspondence
        
The following correspondence/documentation was distributed to the Planning Board members in their meeting packets;

        DOCUMENTATION:

1.      A letter from William A. Thompson (BH2M Engineering) with answers to questions from the Planning Board at the last meeting, in reference to the Revised Sebago Ridge Estates Subdivision project.
2.      Copies of all documentation, to date, on the proposed RV Park (Hawkes Rd.) project.
3.      A copy of the letter that was sent out to Samuel & Jan Minervino regarding the Planning Board’s issues to be addressed at the April 12, 2011 meeting.
4.      A copy of the letter that was sent out to Dean Palli from the Code Enforcement Officer as requested by the Planning Board at the last meeting.
5.      A copy of the letter sent to the Sebago Fire Chief and Public Works Foreman regarding the Planning Board’s request for them to attend the April 12, 2011 meeting.

CORRESPONDENCE:

1.      A copy of the e-mail received on April 5, 2011 from Joseph Miller regarding his planned attendance at the April 12, 2011 meeting.  NOTE: I was originally informed by Sherry Miller that they would not be attending this meeting.  This e-mail was received after the meeting agenda closed on March 29, 2011 therefore this item was not officially on the meeting agenda.
2.      A copy of the e-mail received on March 24, 2011 from Bruce Weymouth regarding the Long Beach LLC agenda item.
3.      A copy of the e-mail & documentation received on March 10, 2011 from Joe McMahon regarding information from the CEO Training Book on Municipal Subdivision Law.
4.      A copy of the e-mail & documentation received on April 5, 2011 from Joe McMahon regarding information from the Department of Human Services, Bureau of Health, on Rules Relating to Campgrounds.
5.      A copy of the Spring 2011 edition of the Shoreland Zoning Newsletter from the Department of Environmental Protection.

ADDITIONAL INFORMATION DISTRIBUTED AT THE MEETING:
(This information was submitted after the agenda submission deadline date and meeting packets were distributed.)

1.      The Preliminary Plan design for the proposed RV Park on Hawkes Road from Sawyer Engineering & Surveying, Inc.
2.      Documentation from Bill Harrop regarding his deeded rights to the beach area of Long Beach.
3.      An e-mail message from Gretchen & Richard Terhune, abutters to the Minervino property, relating to Long Beach LLC, doing business as the Long Beach Marina.
4.      An e-mail message from Selectman Allen Crabtree asking for a representative from the Planning Board to join a committee that is being organized to work with the consultant on developing a range of options for the Sebago Elementary School’s future.  

Copies of all of these correspondences/documentation are attached to and do hereby become a part of the original set of these minutes, or are included in the Planning Board file for the specific project.  Copies are also included in the appropriate Planning Board files as essential by subject.   

III     Open to Public Questions – None
IV      Review of Minutes (March 8, 2011)       

Chuck Archer made a motion to accept the March 8, 2011 meeting minutes as presented.  It was seconded by Phil Lowe.  Motion carried with all in favor.

V       Old Business

a.      Site Plan Review – Revised Sebago Ridge Estates Subdivision – (Don Gilbert) – Map 11, Lot 18-A1 thru 18-A11, 18-12 thru 18-56

For the benefit of the audience, Bill Thompson reviewed the background information of his client’s request to revert this previously approved subdivision from 49 lots to 3 lots. In response to the Planning Board’s request, Mr. Thompson stated that in his letter to the Planning Board dated March 17, 2011, the estimated construction cost to upgrade the Folly Road as reflected in the conditions of approval on the 2005 final plan would be $350,000.00.  The estimate completed by P&K Sand and Gravel included all work on the Folly Road from Route 107 to a point 2,850 feet along Folly Road.  The approval in 2005 would have resulted in 49 homes using Folly Road.  This requested amendment would reduce that number down to 3 lots.  As comparison the $350,000.00 estimate over the original 49 lots would equate to $7,142.86 per lot.  Therefore, Gilbert Homes is proposing $10,000.00 per lot for the total of $30,000.00 to be paid in increments of $10,000.00 per lot as they are sold.  As requested by the Planning Board, Public Works Foreman, Tim Mayberry provided information to the Planning Board on the estimated costs at today’s pricing, of bringing the Folly Road up to the town’s road standards.  He explained that the cost of gravel only would be approximately $29.00 per lineal foot.  This means that the cost of gravel at today’s prices for 2,850 lineal feet would be $82,650.00.  However, he did not figure in the cost of the labor and equipment because this cost is usually covered by the town on the projects that he performs for the town.  Phil Lowe mentioned that according to the Subdivision requirements, anything that consists of three or more lots is considered a subdivision.  The standards for a road section are not based on the number of lots, whether there are 3 or 100 lots in the subdivision.  The standards pertain to what needs to be done to the roadway itself, period.  Phil questioned whether this Board has the authority to allow something not to be done that is specifically required.  It is not fair to make someone that has a smaller subdivision follow the rules and allow someone else that has a larger subdivision not to do the same just because of the cost due to the less accessible (or more desolate) location of the roadway.  As requested by the Planning Board, Deputy Fire Chief, Alan Greene stated that the number one concern of the Fire Department would be that the road needs to be able to withstand the weight of the fire truck.  If the fire truck is damaged going down the road, the town will then have to pay for the repairs which could be very costly.  He also explained that the placement of at least one dry hydrant on the Folly Road is highly recommended.  There was some discussion on the increase in cost since the original approval to perform the necessary road work and the possibility of this roadway becoming the ultimate responsibility of the town.  

Phil Lowe made a motion to not accept the proposal at the present time.  It was seconded by Chuck Archer.  Motion carried with all in favor.  Paul White explained that this means that at the present time the Board has decided not to accept the proposal without prejudice after consideration of the comments by the Deputy Fire Chief and the Public Works Foreman regarding their concerns and potential cost.        
      
Mr. Thompson will check with his client to see how he would like to proceed.  He will contact Maureen Scanlon to be added to the agenda for the meeting in May if necessary.

b.      Proposed RV Park (Hawkes Road) – John Swanson (Jonathan C. Blount Trustee) – Map 9, Lot 25

Copies of the proposed Preliminary Plan for this project were distributed to the Planning Board members at the start of this meeting with additional copies available for the members of the audience.  Paul White asked if we have a complete application for this project.  Dan Tocci explained that the original application was submitted in May of 2009 and they are here tonight to give an update on the status of the project.  He explained that they have been going through some revisions over the past several months in the layout of the plan due to topographic design criteria.  They have now reduced the original number of eighty-four (84) RV Park campsites to fifty (50).  Phil Lowe stated that although the original application was filed with the $35.00 fee being paid, the Planning Board did not perform an application review at that time.  Although there was some discussion on the matter of a proposed RV Park at the May 2009 meeting, with several residents in attendance, which became rather heated at times; the application was never actually reviewed because there was no definitive plan before the Planning Board for review at the time.  It has now been twenty-three (23) months since the application was originally submitted.  Phil stated that even a complete project application expires within a year if there is no substantial start.  Phil mentioned that there really are no grounds to move forward with this application because the point of performing a “substantive review” was never reached in the first place.  Paul White stated that we need to establish two things; In the spring of 2009 was the application approved as of that date, and has it lapsed, due to something specifically in the statute.  Phil Lowe stated that it was not complete according to our ordinance in the Town of Sebago because no “substantive review” was performed as reflected in the minutes of the Planning Board meeting held on May 12, 2009.  Paul White stated that Phil has raised some valid points.  One is that there is no approval of the application; Paul confirmed that although the meeting minutes do state that it was for informational purposes that the matter was brought before the Board, there is no record of this application being accepted at that time.  (This is definitely something that would have been reflected in the minutes if it occurred.)  Paul further stated that this item may be something that this Board could waive except for the additional fact that even if it was approved, no construction was commenced within a year.  George Sawyer from Sawyer Engineering Associates stated that they weren’t anywhere near approval to start construction.  His clients’ intention at this time is for continuing review.  They knew that they did not have approval and he believes the last item that is being referred to is only for an approved project, which you have a deadline of one year to start construction.  It was understood that this wasn’t an approved project because they had quite a way to go before getting to the final approval of the project.  Phil stated that a “substantive review” was not performed.  By State Law a substantive review is a review of the legal standards that the project has to meet.  Dan Tocci asked if it was their responsibility to make sure the Planning Board performs a substantive review.  Phil explained that this is a portion of the process; however, by the applicant’s own description, the Planning Board had a “trial balloon” before them.  At the original meeting in May 2009, there was no process.  There were comments made by members of the audience with some answers proposed and some not answered.  The greater issue at risk for the applicants is that at that time the zoning in that area permitted a campground, and right now it does not.  Therefore it is a very important point that a substantive review was not done prior to the zoning change.  Phil contends that this project never achieved this status and therefore is subject to the new zoning ordinance which does not allow for a campground in this area.  In response to Dan Tocci’s question on how they could have gotten this Board to perform a substantive review; Paul White stated that if they had moved forward with their application at the time, nothing would have prevented them from being added to the agenda for the next meeting and pursing it.  Paul also added that the burden of proof is on the applicant.  In other words, the Planning Board is under no obligation to research a proposal for an applicant, nor are they obligated to advise an applicant of their legal rights as their counselor.  The Planning Board represents the town.  At this point, the options for the applicants are that if their original application is denied by the Planning Board they can appeal to the Zoning Board of Appeals for a Variance, or if their application has lapsed they can reapply under the new zoning ordinance.  There was some discussion on denying the application based on the fact that the original application has lapsed since no actions have been taken since they originally came before the Board in 2009.  Dan Tocci reiterated that over the past several months they have been designing and redesigning this project due to topographical and engineering concerns.  They have not re-approached the Board until tonight because they did not a complete design to present until now.  He stated that they have met with the State officials several times and have been proceeding diligently on the design and redesign of this project.  Phil Lowe stated that it is irrelevant if they have been working on it; if there was no substantive review of this project, then this project is not insulated from the progression of ordinances that we have had in this town.  We now have a new ordinance that does not allow this project.  This project is not insulated from that, due to the fact that they did not achieve a substantive review.  Dan Tocci asked why the substantive review was not done preliminarily.  Paul White stated that this is a question for the applicants (not the Board) because they did not pursue it at the time.  Phil Lowe explained that first of all the applicant would try to get the application approved at the application phase with a preliminary plan.  What was submitted was not a completed preliminary plan because it was missing several elements that were in the ordinance.  The point is that without a substantive review, the clock was not stopped on the progression of ordinances and the new ordinance doesn’t allow for campgrounds in that zone.  Dan Tocci stated that as the applicant he takes exception to that because he believes that they have met their preliminary application criteria and they have been proceeding reasonably and diligently on this design and redesign and they did not want to waste this Board’s time on something that was incomplete.  Phil stated that he understands that point, but their process has taken too long, and the ordinances have moved on which means they are subject to the new ordinance.  The question is whether this application has “timed out” or not.  Phil Lowe mentioned that an approved project expires within one year if there is no substantial start, therefore it would be unlikely that an application that was not acted upon would have a longer life than an approved project.  Dan Tocci mentioned that there was nothing in their application package that stated that there was a window where this would shut on them.  Phil stated that it is up to the applicant to stay up to speed with changing ordinances.  Dan stated that it isn’t necessarily the changing ordinances that he is talking about, but the fact that there is nothing stated that indicates that they needed to come back within a certain number of months for the application to stay alive.  Phil’s response was that there was no completed application because it did not have all the elements that the town’s ordinance asked for in it.  Dan asked that if it was not complete at the time, then what action would be taken by the Board to state that those items would be required in order to resubmit the application.  Phil stated that the Board was essentially told at that meeting that it was a “trial balloon”.  George Sawyer stated that they originally brought it before this Board to get information and feedback, and it wasn’t a “trial balloon”.  He further stated that they knew what the ordinance was and they were asking for the Board and audience’s input so they could move forward in a manner that would allow them to meet the criteria that was in the ordinance.  Phil asked why the Board has not heard back from them for twenty-three months.  George stated that there were no time frames in the ordinance at that time.  Phil asked if George had read the section of the ordinance that states that an approved project expires in a year.  George stated that this wasn’t an approved project, and his clients admit to that fact.  Phil asked if he read the requirements that are required with the application and the sketch plan that is supposed to be submitted.  George stated that yes, they had and there was no specific time frame stated.  Phil stated that here we are twenty-three months later and the Board still has a partial application before them.  George stated again that there was no time frame.  Phil replied, “No there isn’t, it can go on for another two years.  The application was not complete then and it is not complete now.”  George stated that they are here now to continue further review of this application.  Phil stated that the problem is that they did not freeze in time the ordinance situation; that passed while the applicants were working diligently on the project and now the conditions are different.  Dan Tocci asked if this is Phil’s opinion, to which Phil replied, “Yes, it is.”  Dick Perry stated that the engineering work is being done in the Town of Bridgton which is not far from Sebago and there really is no reason that they could not be in contact from time to time to see if things were changing.  George stated that they knew there was an ordinance that was being voted upon and it was their opinion that they were “grandfathered” because they had submitted an application under the old ordinance and there was no time frame under the old ordinance as to when they had to come back in.  They have been working on it since that time on various different portions of engineering to prepare a reasonable project to come back with before the Board.  Paul White suggested that instead of denying this application tonight, the Board will check with the Legal Department of the Maine Municipal Association to try and obtain an answer to the question of whether this application is still “open” and subject to the old ordinance.  Paul stated that there has got to be some lapse if an application has not moved forward in a certain amount of time; however he doesn’t want to deny this application until the Board can confirm that fact.  It may turn out that in fact, the application remains open.  Paul asked the Code Enforcement Officer to check with MMA’s Legal Department on the matter.  If the answer comes back that the application is open, this Board can proceed in the approval process.  If the answer comes back that the application has lapsed and is closed, the Planning Board will deny the application and the applicants can seek an appeal with the Zoning Board of Appeals.     

This item will be added to the agenda for next month’s meeting.                               
 
VI      New Business

a.      Discussion on Possible Violation of Unauthorized Expansion of Business by Long Beach LLC (Samuel & Jan Minervino)

Paul White explained that the Board asked the Minervinos to come in and answer some specific questions regarding a possible unauthorized expansion to their marina business.  He explained that according to pages 10 & 11 of the Shoreland Zoning Ordinance it talks about the (increased) change of use for a non-conforming lot.  Because the lots in question are close to the lake, they are considered non-conforming, and if there has been an increase in usage, the Minervinos should have come before the Planning Board for a Site Plan Review.  There was some discussion regarding the actual number of moorings associated with the marina.  The Planning Board meeting minutes from July 25, 1988 and September 25, 1989 were referenced during the course of this meeting for historical knowledge on the matter.  Copies of these minutes are attached to and do hereby become a part of the original set of these minutes and are also included in the Planning Board file for this property.  Sam Minervino stated that he has done some research and spoke with former employees that worked at the marina in the 1960’s and 1970’s.  Sam stated that when they originally purchased the marina, it was their understanding that they were approved for fifty (50) moorings.  He explained that this was something that the Water District and the town had no problem with at the time, and in written statements that he has received from the previous owners it was stated that there were fifty moorings as far back as the 1960’s.  The light weight ones were pulled out and the heavy ones were kept in the water.  Sam mentioned that they have only used what they needed over the years.  Paul White asked how many moorings are there, in which Sam answered that there are fifty (50) moorings, and there always has been.  Phil Lowe mentioned that the only written thing he could find while researching the matter that referenced the amount of moorings was the aforementioned Planning Board meeting minutes.  Sam submitted a letter from Reginald F. Butts who purchased the marina in the late 1980’s which attests to the fact that he contacted the Town of Sebago regarding several items that were addressed during the period that he owned the property.  He also submitted a letter from Steve Zarnowski who worked at the marina from 1962 through 1971 which attests to the number of moorings and the marina fleet during that time period.  Copies of these letters are attached to and do hereby become a part of the original set of these minutes and are also included in the Planning Board file for this property.  Paul White asked if any of these moorings are located further than two hundred (200) feet from the shore.  Sam’s response was “yes”.  Paul asked “how many of them?”  Sam responded “I don’t know, quite a few probably.”  “I think if you go to Long Beach, you will find about seventy (70) percent of the moorings are out beyond two hundred (200) feet.”  Paul stated that he agrees, but one of the things that brought this up is that the town fathers have thought about putting together some sort of an ordinance relating to moorings, so that brought attention to this issue down at Long Beach and the marina operation.  Also, when the Minervinos came in previously about the possibility of expanding the building on their property it caused the Planning Board to “pay attention” to what was going on.  The town does have the right to regulate everything within two hundred (200) feet and if the town chooses to do so, there may be some regulations enforced.  Specifically, it has been suggested that the marina operation has been increased without seeking a permit.  Whether that is true or not has not been determined but the town does have the authority to investigate it and take some action if they feel that is what was done.  Tina Vanasse asked Sam if he knew who the person was from the town that gave the original approval, because she has lived in that area since she was nine (9) years old and she doesn’t believe there were fifty (50) moorings in.  Sam responded that it would have been whoever it was that was the Code Enforcement Officer in the mid 1980’s.  There was some discussion between Sam and Tina regarding the types of, and amount of, boats located at the marina during that time.  Tina asked when they started having the rental boats where they moored them, because the previous owner (Jack) didn’t have any boats on a mooring, they were pulled up on the beach.  When did they start using the mooring system to rent the bigger boats?  Sam stated that Steve Zarnowski (Jack’s nephew) worked at the marina full time from 1962 to 1970.  (NOTE: His submitted letter references the use of moorings.)  Paul White read directly from the minutes of the Sebago Planning Board meeting on July 25, 1988 as follows:

“Mr. Minervino was present tonight to discuss his plans and answer the Board’s questions about the future of this piece of property.  He stated that right now he is just leaving it the way it is and running the business to try to make it pay for itself.  There are 36 (thirty-six) moorings there now, with 28 (twenty-eight) in use at this time.  They have a total of 125 feet of lake frontage.”  

Paul stated that this is testimony of Sam’s predecessor in Title.  Sam stated that his exception would be, if he (Henry) stated that there were thirty-six (36) moorings, did he know there were exactly thirty-six (36) moorings?  He explained that they have used what they needed and they “floated” what they needed.  Paul asked what he means by “floated”.  Sam explained that if they only needed forty-eight (48) between customers and other boats, then they did not “bring up” the other two.  Phil Lowe asked if Sam is saying that he hasn’t added any moorings since he has been there.  Sam responded, “No”.  Phil asked how many moorings has he added?  Sam explained that he is saying “No, he has not added any moorings; he has brought moorings up and rebuilt them.  But he has not increased the number of moorings.”  Paul White asked if this operation is a corporation.  Sam stated that it is.  Paul stated that we have an officer of the corporation testifying that at the time there were thirty-six (36) moorings with twenty-eight (28) in use in 1988.  Now, it is being stated that there are fifty (50) existing.  Sam stated that he would like to say that he was not part of the corporation in 1988 and had nothing to do with it.  His corporation was started in 2000.  Paul stated that there was a business being run there and it was on officer of the business that was testifying before the Planning Board.  Paul clarified that he is just repeating what he (Henry) said and he doesn’t know anything other than those two figures and the context where he got them.  Paul asked if there were any other questions.  Phil Lowe stated that there is another issue if we are done talking about moorings.  He stated that before a business expands in any manner, the Planning Board is supposed to perform a Site Plan Review of that business and the property, and so forth.  These public procedures are there for a very valid reason.  It includes everybody in the process, and it also helps everybody understand what the current codes are, what they mean and how the Planning Board interprets them.  It helps if everybody is on the same page.  It strikes him that as time has progressed down there, there are a lot of people on different pages, and nobody really wants to listen to anybody.  So, it is time that the Planning Board addresses the items that they have jurisdiction over and bring them to the forefront and make decisions on them.  The expansion of the business in terms of moorings is one issue, and the expansion of the business in terms of footprint or docks, or anything thing of that nature is a piece of that; but it is an (additional) issue.  He stated that Sam really should have come before the Planning Board before he added any other dock space or any other facilities for that business.  Sam stated that he got a permit.  It wasn’t for the business and then it was revoked, so he came down and talked to the town (as requested) and asked what they wanted him to do about it.  He told them he would pull it out (the “barge”) and he did.  Phil asked if it was gone.  Sam stated that it is sitting on the ramp right now waiting to be hauled away.  Phil stated that he understands, but is it going back in?  Sam stated that it depends on the town, because the town has to tell him what he can and can’t do there.  A resident asked about the chains and the moorings.  Phil stated that the dock itself and anything that attaches to the dock is a structure and a part of that structure.  He further stated that in the definition when we get into an issue called non-conformance within the Shoreland Zoning set of ordinances; and it is pretty obvious that most structures down there are non-conforming; everybody is kind of in the same boat down there when that happens.  This is o.k. because one day it was legal and the codes changed and you’re not a bad guy because the codes changed, but as things changed and things get added to, especially in a business, the Site Plan Review process is just exactly for that.  It is to answer those questions before you start.  That did not happen and it should have happened.  Sam stated that he did go to the town for a permit and was given a permit.  He is not sure how much further he needed to go than that, if he was told that he couldn’t do that and he needed to go before the Planning Board, he would have.  But, he made the initial step of coming to the town and asking to put this dock in, and he was given the right to do that.  Paul asked what time frame he is referring to for that.  Sam stated that it was last year.  Paul asked Sam for clarification that he was given a permit, and then the permit was revoked.  Sam responded, “yes”.  Phil asked Sam what he calls the apparatus that he added last year.  Sam explained that it was a barge that he converted into a dock.  Phil asked if it was a dock that was attached to the shore.  Sam responded, “yes, with a gangway”.  Phil stated, “That makes it part of your structure down there, and technically you should have come before the Planning Board for a Site Plan Review.”  Sam explained that this was located on lot 99 (ninety-nine).  It wasn’t on the marina’s lot.  Phil asked if lot 99 (ninety-nine) is a commercial property.  Sam responded, “no”.  Paul White stated that if we go back to the Shoreland Zoning that existed in 1975 which is the exact same language as we have in our current document and that is:

“Any non-conforming use may continue and may be maintained, repaired and improved.  No such non-conforming use may be expanded, changed to another non-conforming use, or renewed after it has been discontinued without a permit from the Planning Board in accordance with the provisions.”  

This means that if it went from thirty-six (36) moorings to fifty (50) there should have been an application for the increase.  The addition of the dock would be a separate issue.  Paul stated that he did come before the Code Enforcement Officer to get a permit.  The question that Paul believes the Board is focusing on is, at some point in time between 1988 and today, when the number of moorings increased, there should have been an application for the increase in the number of moorings.  Sam stated that they weren’t increased.  The numbers that are referenced are the number of moorings that were being “floated”, or that were being used, but that is not the total number of moorings.  He reiterated that he has letters from two previous owners (that attest to the actual number of moorings).  One (of the previous owners) that talked to the Code Enforcement Officer of the town was told by him that they were all set for fifty (50) moorings.  This was reiterated to Sam’s dad by the previous owner when he bought it.  When he (Henry) told you (the Planning Board) that there were twenty-eight (28) being used out of thirty-six (36) that were being used, or not being used, he (Sam) does not believe he was telling the Planning Board about all of the moorings.  Paul stated that he may not have been, but all he has is the writings from twenty-two (22) years ago, and that all he can do is read them.  He does not try to read between the lines.  Sam stated that he understands that but he is trying to do things right.  Linda McDade stated that she worked at the marina in 1981 and 1982 and asked if she could say something.  Paul stated that she may say something but the Board was not going to open it up for everyone’s comments.  Linda stated that she worked for Ann Hyland and ran the marina in 1981 and 1982.  It did not have fifty (50) moorings; there were six to eight rental boats on the beach.  Paul stated that we are going to hold off on testimony as to the actual number of moorings and try to determine at the present time how we would like to proceed.  He informed the applicant that if he looks at the Shoreland Zoning (ordinance), and the language goes back through all the Shoreland Zonings (ordinances), in the current one on pages ten (10) and eleven (11) it refers to the need for an approval by the Planning Board.  The Board would also have the ability if they wished, under the State Law (page 159); it talks about the ability of the town and town officer’s to enforce.  Paul stated that we are not at that point, but he is trying to determine what would be an appropriate course of action, whether a belated application for an increase would be appropriate or not.  He asked the opinion of the Code Enforcement Officer on the matter.  Bob DeVilleneuve clarified that the Board is asking about the following three items;  
 
Item #1 – Apply for the additional moorings.
Item #2 – Apply for his back lots and adjacent lots for storage.
Item #3 – The dock would be a Planning Board issue also.

Paul reviewed the chronology of what has transpired as follows:
Approximately two (2) years ago Mr. Minervino requested a permit, not through the Planning Board, but through the Code Enforcement Office to put in a dock.  Sam mentioned that it was on a piece of residential property.  Bob DeVilleneuve stated that at the time, he was brand new on the job in Sebago and wasn’t aware of the fact that if a dock is over six (6) feet wide, it is a Planning Board issue.  Sam stated that he wishes he had known (this) before he had followed through.  Tina Vanasse stated to Sam that she had talked to him down at the beach about the Pontoon boats for his business.  Sam stated that that was the original plan until he talked to Bob and found out that it couldn’t be (done).  Tina stated that he was pulling the boats up the side of that barge.  Sam stated that he used that dock approximately six (6) times to put a boat away.  Tina stated, “But that was your intention in the beginning”.  Sam agreed, “In the beginning, but he found out that he couldn’t use it for that.”  Paul White stated that at the current time the Code Enforcement Officer thinks that the appropriate way to proceed would be to have the Minervinos file an application to seek approval for the moorings, use of the back lots for storage, and perhaps approval of the dock.  If the Minervinos decide to proceed with this, the Planning Board will go forward from there and see what occurs.  If not, and Paul mentioned that this is not a threat in any way, as he mentioned before the town’s ordinance and State Law would give the town authority to seek some sort of enforcement.  He stated that perhaps the best approach would be to seek some legal advice and submit an application, as suggested, to see what happens.  Phil Lowe stated that he had one more question that may be a fourth item.  He asked Sam if he wishes to lump into this query the issue of expansion for their building down there that was (previously) requested.  Sam explained that their original request for the expansion was not to increase the footprint; they just wanted to raise the roof so they could have some room for storage.  However, the measurements were off a little bit because they were figured on thirty-three (33) percent and it is supposed to be thirty (30) percent.  Paul stated that this is important; what Sam does as an officer of his corporation is different than what he would do as an individual who owns a lot.  In other words, if he applied for a permit as an individual person on a lot that he is just using as a residence, that is a whole separate matter.  For Sam’s benefit, Phil Lowe reviewed the Non-Conforming Uses (Structures) section of the Shoreland Zoning Ordinance (page 10 – Section D.1 – Expansions) as follows:

“Expansions of non-conforming uses are prohibited, except that non-conforming residential uses may, after obtaining a permit from the Planning Board, be expanded (and then it goes on to site another section that talks about the thirty percent rule).”  

Phil explained that this section pertains only to residences in the Shoreland Zone, may be expanded.  Sam stated that his understanding would be that any type of commercial venture has to go before the Planning Board for an expansion.  Phil stated that this would be correct, but he is just explaining how he would view it.  He stated that we are talking about a business expansion of any sort and this is specifically for the structure as a non-conforming structural use.  Sam asked if this means that commercial entities are not subject to the thirty (30) percent (rule) or do they have to go before the Planning Board, one of the two or both?  Phil explained that the ordinance also says that when there is a question between one portion and another, you will take the most restrictive.  So, Phil reads it as, he can not expand that building.  Sam stated that all he wants to do is raise the roof so nobody gets hurt.  He doesn’t want to make the footprint any bigger or wider because it is a “headroom” problem for some of his customers.  Paul White stated that there are different sections.  One talks about expansions that may limit the expansions to residential.  He explained that if you read the language of # 3, and you take in the context of a Site Plan Review, it is sort of implied that the Planning Board reviews commercial entities as well.  He doesn’t see any prohibition against it.  He asked if the Code Enforcement Officer could ask about this also when he speaks to the MMA Legal Department.  Our ordinance is basically the same as the model ordinance from the State and he would like to know whether they feel it prohibits any expansion at all in the Shoreland Zone.  In other words, do they think that the new model ordinance prohibits any commercial expansions?  Sam asked if it is true that the town’s jurisdiction ends at two hundred (200) feet out (from the shore).  Paul stated that in the discussions of having a Mooring Ordinance there was a notion that we only have the ability to enforce within two hundred (200) feet.  Most of the activity to and from the moorings takes place within two hundred (200) feet and on the shoreline.  Phil stated that the State only gives us the authority of jurisdiction, with the provision of a Harbormaster Ordinance, ending at two hundred (200) feet.  It also goes on to say that anything beyond two hundred (200) feet is illegal.  You are totally at risk for liability and so forth for anything beyond that point, and so is anyone else.  He realizes that there are a slew of them down there and that is one of the things that the committee is trying to wrestle with in the ordinance.  Paul stated that Sam is not the only person down there planting moorings and renting them.  This comes up in the context of the town trying to get some control over what is going on down there.  Joe McMahon asked if Lot 99 is part of the original business.  Sam responded, “No”.  Joe stated “So, basically there are no commercial operations on Lot 99.  Sam responded, “Correct”.  Sam was asked if he stores any boats on this lot and he stated that only his personal Pontoon boat is stored on it.  Sam stated that he was told that there is a fifteen (15) foot sideline setback for docks and he wanted to know if that is true.  Phil stated that anything he has read regarding structure, basically says that you’ve got to project with your property line into the water.  Sam stated that this particular dock starts right on his property line and projects out over in front of his property, and this is the dock that he pulled.  

This item will be added to the agenda for next month’s meeting.
III     Miscellaneous Item

Future of Sebago Elementary School – (Selectman Allen Crabtree)       
        
Selectman Allen Crabtree spoke to the Planning Board regarding the consolidation of School Districts which includes the reduction in number of elementary schools.  This means that the Sebago Elementary School could be closed and possibly be turned back over to the town as early as 2015.  Allen explained that he applied for and received a “Planning Grant” in the amount of $10,000.00 so that we can take a look at options that the town has; everything from paying to keep the school open, so they can’t close it, all the way through to accepting the building.  Because the building existed before the creation of SAD #61 the town would be given the “right of first refusal”.  The idea is to find a future use for the building such as assisted living or office space, etc.  A copy of the Request for Bid that has gone out to hire a consultant, with the grant money, to take a look the range of options with associated costs, was distributed to the Planning Board members with their meeting packets.  A copy is also attached to and does hereby become a part of the original set of these minutes.  Allen asked for a representative from the Planning Board to join a committee that is being organized to work with the chosen consultant.  Paul White stated that he may not be able to attend all of the meetings, but he will be willing to help.  Phil Lowe thanked Allen for his commendable efforts in securing this grant for the town with a round of applause from the audience.                                            

VII     Adjournment
Chuck Archer made a motion to adjourn at 8:35 p.m.  It was seconded by Phil Lowe.  Motion carried with all in favor.

Respectfully Submitted,
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Maureen F. Scanlon
Administrative Assistant/Deputy Clerk