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Planning Board Minutes 05/10/2011
7:00 p.m.
Tuesday, May 10, 2011

I       Call to Order

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

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

Absent: Joe McMahon

Guests present: Richard (Dick) Eaton, Bruce Weymouth, Bill Harrop, Roger & Donna Jones, Bill McDade, Mike & Becky Foley, John Swanson, Mike Borsetti, Selectman Ann Farley, Tucker Daigle, Linda & Jim Panzera, Sherry Miller, Bev Vucson, Debbie & Kevin Murphy, Bob Rayner, Kathleeen McDade.  

II      Correspondence

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


1.      Documentation submitted by Richard Eaton for the Revised Hanson Brook Valley Subdivision project.


1.      A copy of an e-mail message from Dan Tocci to Code Enforcement Officer Bob DeVilleneuve (dated May 3, 2011) regarding the Proposed RV Park (Hawkes Road) project.
2.      Copies of pictures submitted by Bruce Weymouth regarding the Long Beach LLC agenda item.
3.      A letter from Douglas L. Weymouth with associated pictures regarding the Long Beach LLC agenda item.  
4.      Copies of information submitted by Planning Board member Phil Lowe regarding Vested Rights, Equitable Estoppel, Pending Applications, and Permit Revocation.

NOTE: For the record, Phil Lowe took a moment at the start of the meeting to review this correspondence item with the Planning Board.  He explained that this information was submitted to clarify what the review process is, and when an application achieves protection from the advancement of ordinances.  He stated that this information is not specific to just one of the agenda items but is pertinent to all applications as ordinances progress.  Regarding pending applications, the Planning Board Manual for the State of Maine states (page one of the submittal):

“Sometimes a municipality amends an applicable ordinance provision either while an application is being reviewed by the board or after the board has granted its approval but before the landowner has begun any of the work authorized by the board.  If an application is “pending” when the ordinance is amended, 1 M.R.S.A. § 302 requires the board to complete its review under the original ordinance, unless the new ordinance contains a retroactivity clause.”

Phil stated that this says that if an application achieved a “pending” status, then the Planning Board would have to look at it (the application) under the old ordinance.  

“The courts have found that an application is “pending” if the board has conducted at least one substantive review of the application, absent a contrary provision regarding what is “pending” in the ordinance. “

“Section 302 defines “substantive review” as a “review of that application to determine whether it complies with the review criteria and other applicable requirements of law.”  Preliminary review of an application for completeness generally does not constitute a substantive review. “

“The fact that an application was delivered to the town office or received and receipted by the town office staff does not make an application “pending,” absent a local ordinance to the contrary.”

Section 302 of the Maine Revised Statutes states (page two of the submittal):

“For the purposes of this section and regardless of any other action taken by the reviewing authority, an application for a license or permit required by law at the time of its filing shall be considered to be a pending proceeding when the reviewing authority has conducted at least one substantive review of the application and not before.  For the purposes of this section, a substantive review of an application for a license or permit required by law at the time of application shall consist of a review of that application to determine whether it complies with the review criteria and other applicable requirements of law.”

Phil stated that in our structure that equates to the Standards that the Planning Board has to review once the application is complete, that is pertinent.

The last item he submitted is a memo from the Town of Falmouth’s legal counsel, Drummond, Woodsum, MacMahon (NOTE: This is also the Town of Sebago’s legal counsel.) regarding a similar situation where an applicant was trying to say that their application was not subject to a law.  The language that addresses this issue in the memo is as follows:

“Under applicable State law, sketch plan review and a site walk do not make the application “pending” for purposes of insulating the application (“grandfathering”) from ordinance changes.”     
(This information was submitted after the agenda submission deadline date and meeting packets were distributed.)

1.      A copy of an e-mail message from Dan Tocci to Code Enforcement Officer Bob DeVilleneuve (dated May 7, 2011) regarding the Proposed RV Park (Hawkes Road) project.
2.      A copy of an e-mail message from Samuel Minervino to Planning Board Secretary Maureen Scanlon (dated May 10, 2011) stating that they will not be present at the meeting tonight, that they are seeking legal advice and will keep in touch.  

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.  

III     Open to Public Questions – None

IV      Review of Minutes (April 12, 2011)      

Chuck Archer made a motion to accept the April 12, 2011 meeting minutes as presented.  It was seconded by Phil Lowe.  Motion carried with all in favor.

V       Old Business

a.      Subdivision Site Plan Review – Revised Hanson Brook Valley Subdivision – (Richard Eaton) – Map 10, Lots 11, 11A, 11-1 thru 11-5

Paul White explained that this project was left off with the following two basic issues pending.  

1.      Bringing the roadway up to standards,
2.      Proper road maintenance agreements between the parties.

Dick Eaton explained that he has met with his engineer and has upgraded his surveying work on the road.  His engineer explained to him that the biggest problem with the road is that it doesn’t have any ditches along the sides of the road which doesn’t allow for water to drain off of it properly.  He explained that approximately 500 cubic yards of gravel will have to be imported to the site and he intends to use some good material from the ditching work for the base.  He mentioned that there is a section of the roadway that has a steep graded slope that he would like to place reclaimed pavement on, which will stabilize the surface and stop further erosion.  He submitted an updated road association agreement that was drafted by his attorney.  He explained that this does not include David and Lisa Lymburner who are located at the end of this road because their property was never part of this subdivision.  Dick answered questions from the Board regarding culverts, the overall quality of the existing base material of the roadway, the amount of gravel and material to be used, and the future easement for the town to access the fire pond later on.  However, Dick does intend to install sprinkler systems in the buildings that will be built on this property.  

Phil Lowe pointed out the fact that this project had previously received a “substantive review”.      

Paul White stated that one discrepancy that has been brought up is that Mr. Eaton’s cross section shows an eighteen foot width of the road and the town’s standards call for twenty feet.  Dick stated that the existing roadway is twenty feet wide and he does not intend to make it narrower than it already is.  He will have this corrected on the plans and resubmit it with the updated road profile information.   
b.      Proposed RV Park (Hawkes Road) – John Swanson (Jonathan C. Blount Trustee) – Map 9, Lot 25

Bob DeVilleneuve reported that he finally heard back late this afternoon from the attorney at Maine Municipal Association’s legal department regarding his question to them on “vested rights” and the status of this application.  He was informed that they determined that there are no “vested rights” and that there is “no pending” application because a “substantive review” was never performed, no permit was given, and no ground work was performed.  Basically they submitted their application and then asked the Board what would be expected of them at that time.  Paul White explained that the options of approach would be to either vote to accept the application (or keep it pending); or vote not to accept it, in which case the applicant would have the right to go to the Zoning Board of Appeals.  Paul clarified that what the Code Enforcement Officer said is that according to the Maine Municipal Association, after review of the information that we provided them regarding the application, it was his (the attorney’s) opinion that this didn’t constitute an application that “vested” the applicant in the right to continue.  Bob DeVilleneuve gave an example of a situation that took place in, he believes, the Town of Falmouth, where an applicant submitted an application to build a motel in two separate phases.  They started the operation by breaking ground and at that point things (the ordinance) changed.  The case was taken to the Maine Law Court and the decision that was handed down was that since there were obviously intentions to proceed with phase two after phase one was completed they had the right to proceed with the project through the completion of phase two.  Paul White stated that according to what the MMA told Bob DeVilleneuve, based on the facts, their opinion was that there was no “vested right” to it (the application).  Paul stated that he would show a lot of regard for that opinion, in other words, he doesn’t see where, based on that opinion, he could do other than vote to consider that there is no active application.  He stated that he does not know how the other Board members feel, so we can certainly put it to a vote.  Paul further stated that the applicant has the right, and since he doesn’t have representatives, Mr. Sawyer isn’t here, whether he wants us to have it put to a vote, which would open the avenue to go to the (Zoning) Board of Appeals, or whether he wishes to have the Board not put it to a vote at the present time.  It is up to the applicant to decide whether he wants to proceed tonight or not.  John Swanson asked Bob DeVilleneuve if he has had any correspondence with Dan Tocci, in California, regarding the attorney’s response.  Bob replied that he has not because did not receive the phone call (from the MMA attorney) until approximately four o’clock this afternoon.  Paul White suggested that John allow his associate to review what has been said (this evening), because if you go forward tonight and say please vote on my request that my application is open, he feels that it would probably be a negative vote, but he is not speaking for everyone.  That would allow him to go before the (Zoning) Board of Appeals if he wanted, but the Board is not going to force him to go for that vote if he doesn’t wish to at the present time.  In other words, at some point, either tonight or maybe the next meeting, he needs to decide whether he wants that decision made or not.  John Swanson stated that, to him, it just delays the inevitable.  Paul White responded that John can make a motion that the Board vote on it, but he (Paul) is not going to at the present.  John stated that if possible he would like Maureen (Scanlon) and Bob (DeVilleneuve) to be in touch with Mr. Tocci with any findings that they can find; if they could, forward that to his associate, who is not here to answer any questions.  John stated that in communications with Mr. Tocci regarding the legal matter to counsel; and he has never received anything from the Building Inspector.  Paul White asked Bob DeVilleneuve if the information that he received from MMA was in the form of an e-mail or was it a verbal conversation.  Bob replied that it was a verbal conversation.  Paul asked if Bob jotted it down as a note.  Bob responded that he has not had a chance to do that yet because he has been very busy today with phone calls and people coming in (for Code Enforcement matters).  Chuck Archer stated that he would like to see that legal opinion in writing.  Paul agreed that he would like to see it in writing even if it is in the form of an e-mail with a couple of paragraphs.  Bob stated that he will e-mail him (the attorney) and ask him to do that.  Paul stated that lacking that, we won’t bring it (forward).  He also stated that there is nothing to prevent us, by the way, from simply someone bringing a motion that this is not a valid application.  He stated that he is trying to show some ability of the applicant(s), who does not have both parties here, and his engineer is not here.  We don’t have anything in writing; we do have a verbal communication.  Paul stated that when the Board gets that in writing, at the next meeting, he will bring a motion to accept or reject the application.  Paul stated that he is looking for something from Mr. Stoltz (the MMA attorney) that says, “Dear Sir, after review of the information provided …” and then the things that were mentioned (should be stated) in a written form that we can put in the file, rather than oral testimony.  Bob stated that it is still up to the Planning Board to make that final decision.  Paul replied that, “We will, when we get that, we’ll decide, and we’ll put it to a vote.”  Bob stated that he is just the messenger.  Paul stated that he understands that.  Phil Lowe stated that that is another point, that we tend to sit here as a Board and when an opinion is needed, we ask Bob to do that.  Phil questioned whether that is appropriate.  If it is a matter of some sort of action against somebody and it requires Code Enforcement to take an action, he is fine with that.  But, should we be asking Bob to do that, or should we (be doing it).  Paul stated that it is what has been done for years and it is absolutely appropriate for the CEO to interact with Maine Municipal to get information about Code Enforcement and Land Use issues.  In fact it has proven itself to be a very valuable resource and allowed us to resolve many issues.  Paul stated that we will “table” this for the time being and we will address it next time.  He stated that he doesn’t want to leave it hanging for the town.  What he means by that, is that it might be in the town’s best interest at some point, once the Board has written opinion, to bring it to a vote and give the applicant(s) something that they can at least respond to.  John Swanson mentioned that Dan Tocci hasn’t received anything.  Paul stated that “we will get him something”.  Bob DeVilleneuve stated that he will try to get something in writing, sometimes they (MMA) will put it in writing and sometimes they won’t, it all depends.  Paul stated that, “We will find out.”  Chuck Archer stated that you can’t go to the (Zoning) Board of Appeals without a legal opinion.  Bob agreed that that is right; they (the applicants) can’t do something without this Board’s vote.  Chuck stated that they have to make an opinion in writing in order go before the Appeals Board, it has to be in writing, and he is not going to vote until he sees it in writing.  Maureen Scanlon offered information on the standing of MMA that was brought to her attention by one of their attorneys.  She stated that they are not the town’s attorneys; they are only an informational tool (resource) for the town.  They are not going to per se, put it in writing stating that “this is what I have determined”.  They (MMA) are really just a source for reviewing the ordinances (and interpreting them).  Paul stated that “we will see what they say”.  Phil Lowe stated that this is a service that the town hires as a reference, and it is a valuable reference.  Bob DeVilleneuve reiterated that they are only a reference tool.  Phil stated, “So, let’s reword our statement here.  Let’s be clear in what we are doing so that we don’t go on another month.”  We will go to our town attorney to get a legal opinion.  Bob stated that it would be best if we went to the town’s attorney for a legal opinion.  Maureen stated that that is basically where she was going with that (statement).                     
c.      Further Exploration of Issues regarding Long Beach LLC (Samuel & Jan Minervino)

Maureen Scanlon reported that she received an e-mail message from Sam Minervino stating that representation for Long Beach Marina will not be present at tonight’s meeting.  They are following the Boards recommendation and seeking legal advice and will keep the Board informed (through Maureen) as to their progress.  A copy of this e-mail message was distributed to the Planning Board members at the start of the meeting and is included in the Planning Board file.  Paul White mentioned that the Minervinos have not put the dock in, so he is respecting the Board’s request for him to submit an application before doing so.  Phil Lowe stated that there were two or three items that were identified at the last meeting and he is not sure that those are the only issues.  In an effort to not spread this thing out over a year, he felt that since it is on the agenda tonight, perhaps if there are any other items to be addressed they should be identified now.  The three items previously identified were the moorings, the back lots, and the dock.  Bob DeVilleneuve mentioned that there was also a question on the expansion (of the business).  Phil stated that he happened to be at the Town Office and was asked to sit in on a conference call between Town Manager Jim Smith, Code Enforcement Officer Bob DeVilleneuve and the town’s legal counsel where he specifically asked if adding any moorings to the marina constituted an expansion of that business.  He (the attorney) felt that it did.  To get these opinions, the town has to spend money to get a legal opinion so we can take action, so we probably should do that (and not delay the proceedings).  Paul White noted that at the present time, the applicant is not here, and he has substantively obeyed the Board’s request not to put the dock in.  Right now he is in compliance with the Board’s request that he stop.  Tina Vanasse mentioned that the anchor and the chains are still there.  Paul stated that he is not doing the fundamental thing of selling gas from the dock.  If the Minervinos do not show up for the next regularly scheduled meeting, perhaps then it will be time to move forward, but not at this time.  Paul asked the Code Enforcement Officer if he considers the party to be in violation at this time with his present activities.  Bob DeVilleneuve stated that currently he is not, since he is not in operation.  Paul stated that since he is not in operation at this time, he has obeyed the Planning Board’s request that he not do anything until he has put in an application.   
VI      New Business – None

VII     Adjournment

Phil Lowe made a motion to adjourn at 7:45 p.m.  It was seconded by Chuck Archer.  Motion carried with all in favor.

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