TOWN OF SEBAGO
PLANNING BOARD MEETING
Tuesday, June 14, 2011
TOWN OFFICE BUILDING
I Call to Order
Chairman Paul White called the meeting to order at 7:00 p.m.
Present: Phil Lowe, Joe McMahon, Dick Perry, Tina Vanasse, Paul White, Code Enforcement Officer Bob DeVilleneuve, and Recorder Maureen Scanlon.
Absent: Chuck Archer, Donna Cook
Guests present: Richard (Dick) Eaton, Selectmen Ann Farley & Allen Crabtree, Roger & Gwen Mercaldi, Kathleen McDade, Ken Williams, Bruce Weymouth, Bob Rayner, Ramona & Gary Sleeper, Vincent Verrelli, Lorraine LaForte, Bill & Linda McDade, Mike & Becky Foley, Debbie & Kevin Murphy, Don & Marilyn Loring, Harry Greenlaw, Dan Tocci, John Swanson, Linda Wright Sheehan, Kevin Sheehan, Doug Weymouth, Town Manager Jim Smith.
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.
2. Documentation submitted by William A. Thompson (from BH2M Engineers, Surveyors) for the Sebago Ridge Estates Subdivision project.
1. Copies of correspondences received from Dan Tocci on June 1, 2011 regarding the Proposed RV Park (Hawkes Road) project.
ADDITIONAL INFORMATION DISTRIBUTED AT THE MEETING:
(This information was submitted after the agenda submission deadline date and meeting packets were distributed.)
1. Additional correspondence with pertaining documentation received from Dan Tocci on June 8, 2011 regarding the Proposed RV Park (Hawkes Road) project.
2. A copy of an e-mail message from William and Joanne MacNevin to the Planning Board (dated June 13, 2011) regarding the proposed RV Park (Hawkes Road) project.
3. A copy of an e-mail message from Attorney Brian Willing (from Drummond Woodsum & MacMahon) (the attorneys for the Town of Sebago) to Code Enforcement Officer Bob DeVilleneuve and Town Manager Jim Smith (dated June 7, 2011) regarding a legal opinion on the status of the RV Park (Hawkes Road) project application.
4. A copy of an e-mail message from Planning Board member Donna Cook regarding her input on the agenda items, in lieu of her planned absence from tonight’s meeting.
5. A copy of the faxed letter to the Planning Board from David C. Pierson, Esq. (from Eaton Peabody Attorneys at Law) regarding the withdrawal of the application for a 30% Expansion Project by Long Beach Marina, Inc. which is owned by Samuel & Jan Minervino.
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
A member of the audience asked about the status of the situation with the Long Beach Marina. Paul White stated that this subject will be discussed in open session at the end of this meeting (after all other agenda items have been addressed).
IV Review of Minutes (May 10, 2011)
Phil Lowe made a motion to accept the May 10, 2011 meeting minutes as presented. It was seconded by Tina Vanasse. 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
Mr. Eaton stated that he has submitted updated documentation which addresses the cross section of the road as requested at the last meeting. He also submitted a new planning profile because he made one correction to the existing one which he reviewed with the Planning Board. There was some discussion regarding the road maintenance agreements which where prepared by his attorney and will be delivered to the specific parties for their signatures this week. Mr. Eaton answered additional questions from the Planning Board members regarding the specifics of this project.
Phil Lowe made a motion to approve this project. It was seconded by Joe McMahon. Motion carried with all in favor.
The Planning Board signed off on the necessary documentation for this project and gave Mr. Eaton the approval to record this revised subdivision plan at the Cumberland County Registry of Deeds. He will then provide the required copies to Planning Board Secretary Maureen Scanlon for proper filing in the town’s records. It was noted that all fees have been paid to date for this project.
b. Subdivision Site Plan Review – Revised Sebago Ridge Estates Subdivision – (Don Gilbert) – Map 11, Lot 18-A1 thru 18-A11, 18-12 thru 18-56
As per Bill Thompson’s (BH2M Engineering) client’s request, this item was removed from the agenda for tonight’s meeting and will be added to the agenda for July 12, 2011.
c. Request for Street Name Change in the Taralaine Subdivision (Taralaine Drive) – Sherry & Joseph Miller
As per Sherry & Joseph Miller’s request, this item was removed from the agenda for tonight’s meeting and will be added to the agenda for July 12, 2011.
d. Proposed RV Park (Hawkes Road) – John Swanson (Jonathan C. Blount Trustee) – Map 9, Lot 25
For the benefit of the audience members, Paul White briefly reviewed the history of this situation. Paul stated that the primary issue before the board tonight is to determine whether or not the original application should or should not be considered “still pending”. He asked if the applicants had anything to add to the existing documentation. Dan Tocci stated that he has presented several documents which include his rebuttals to all of the evidence that was previously presented and that he doesn’t have any additional information to add at this time because he feels as though they are pretty complete. Paul White explained that the “burden of proof” is the responsibility of the applicant. Therefore it is up to them to provide the proof as to the validity of the
application as being “pending”, and the Planning Board does not necessarily have to present evidence to the applicant. However, Paul White explained that the town’s attorney, Mr. Brian Willing, did submit an opinion on the matter to the Code Enforcement Officer Bob DeVilleneuve and Town Manager Jim Smith. Paul read aloud the following statement from that opinion;
Under State law, a pre-application meeting before the Planning Board does not make an application for site plan review “pending” for purposes of grandfathering the application from any ordinance changes by the Town. In order to be grandfathered, the application must have received at least one “substantive” review in accordance with 1 M.R.S. § 302, and preliminary review, or pre-application meeting, probably does not constitute a substantive review. See Waste Disposal, Inc. v. town of Porter, 563 A.2d 779 (Me. 1989). Thus, I believe
all current subdivision regulations and other laws and regulations should be applied by the Planning Board in its review of Mr. Swanson’s revised subdivision plan.
Paul White asked if Mr. Tocci would like to comment on this opinion from the town’s attorney. Mr. Tocci stated that he did respond to Bob DeVilleneuve and Jim Smith regarding this response. In this response he stated that he believes the town’s attorney should be made aware of the fact that there were no subsequent applications made to the town after the originally submitted application. He stated that it is the term “substantive review” itself which needs to be called into question. All of the applicable design standards which are under the town’s jurisdiction were presented at their first presentation. It could not be deemed “final” until the State completed its review, and that is what they have been dealing with since their initial presentation to
the town. This is why it was considered “conceptual” at that point because they could not have known what impact the State’s requirements would have on their project at that time. He stated that the application was submitted in good faith, the required fees were paid, and it met all of the standards that were required at the town level when the application was submitted. The presentation to the Board could have, for the purposes of zoning, been approved then and there. It was their decision not to do so (at that time), but to wait until further revisions. Mr. Tocci stated that the term “substantive review” is, at best, subjective and much more accurately undeterminable as it is intended to be designed in the State statute. It is also the term “substantive review” for the application which puts the burden of the applying efforts clearly on the reviewing agency, not on the applicant. Mr. Tocci stated, “For instance, are we as the applicants to insist or demand that the
Planning Board determine the review should be substantive when the application is presented? An affirmative answer would certainly be absurd. There are no requirements in the town ordinances or in the State statutes that require periodic updating of an application once it has been approved in order to keep it current or fresh; if there were we certainly would have complied.” He believes that the attorney should review that fact before making a rash opinion. Tina Vanasse asked to review the original application. The project file was submitted for review by Maureen Scanlon. Paul White explained that there is a three tiered approach to the Board’s reviewing of subdivision plans. Basically, there is a Sketch Plan, a Preliminary Plan, and a Final Plan. In this case, the applicants came in and paid the $35.00 fee and had a discussion with the Planning Board at the Sketch Plan level. There was no vote to approve the Sketch
Plan at that time and it was left at that point. In other words, of the three stages of review of this site plan, the Board only got to the very beginning of the first, and not through the first. Based on this analysis, the Board had not reached the substantive issues that are addressed in the Preliminary portion of the Site Plan Review. Paul stated that he wants to be clear that for these reasons; that he, as an attorney, agrees with the position taken by Mr. Willing. Even if he didn’t, and even if he wasn’t an attorney, the town attorney has a right to form the opinion that the town will take. That has been done. He has told us that it does not consider the application to still be “pending” under the old subdivision law, but now should either be considered as no longer “pending” or if it is “pending” to be treated under the new Land Use Ordinance. Phil Lowe made note of the fact that the
application never was pending because it never achieved the status of pending, or else it would have been approved under the old ordinance. Paul explained that what he is trying to do is explain to the applicant why he feels that the attorney is correct. As a member of the Board, based upon what the attorney has said, and the facts that he knows, he does not consider the application to be pending under the old subdivision ordinance. However, the other members of the Board have the right to form their own opinions as to that fact. He feels as though it is important to focus on the aspects of whether it is pending. He is trying to refer specifically to the town’s ordinance and the three tiered approach to show why he doesn’t believe the application reached a substantive review. Dan Tocci stated that he believes this application is pending. Paul White stated that he will read specifically from the attorney’s opinion.
“A pre-application meeting does not make an application for site plan review “pending” for the purposes of grandfathering.”
From his opinion he treats the Sketch Plan meeting that we have as not creating a situation where it is pending for grandfathering. This is the position taken by the town’s attorney and Paul does not see a reason why he should take a position otherwise.
Dan Tocci explained that his position is that this was not the application meeting, but in fact was a post application meeting. They had filed the application with the $35.00 fee, and “Sketch Plan” is a questionable term. Phil Lowe asked Mr. Tocci if he considered his application as complete. Mr. Tocci responded that they obviously needed to go back to the State to design to their standards and the ecological issues needed to be addressed such as the septic design, phosphorous design, wetlands design including possible vernal pools in the location. All of these design criteria have to be addressed at the State level which is why they believe there would have been a time (period) in lieu of any requirements to the contrary to keep bringing this application back. Phil stated that he
would like to rephrase his question as follows; “Sir, is the information in the plan that you submitted complete for an application?” Dan replied, “The review for purposes of zoning for this particular… Phil interrupted and mentioned that there were several items on the plan which were not complete. Dan replied, “OK”. Phil continued with, “If you look under the Site Plan Review ordinance section requirements, the submission requirements call for a scale on the plan not more than fifty feet per inch. The name, address, and signature are all missing. Classification of the property, I don’t see. Locations of all existing proposed buildings including size and height, access points, driveways, sidewalks, parking spaces, large trees, open drainage courses, service areas, easements, location of buildings within two hundred feet of the parcel to be developed need to be identified with names and
addresses, I don’t see any of this. For an application to be complete all of these things would need to be provided including any (State or) Federal approvals. This is all stuff that was missing on something that was supposed to be complete.” Dan replied that if that was the case then the Board would have to have disapproved (the application). Phil explained that this doesn’t mean an application can’t proceed, it just means that it wasn’t complete at that time. Dan stated that it doesn’t mean that it can’t proceed; which means that it can proceed. Phil responded, “Correct, at that time.” Dan asked, “When does that window close?” Phil stated that he is not sure that window ever closed, in the sense that the application could have proceeded to become complete. That procedure, aside from ordinance changes, could proceed. But, when ordinance changes happen, that
application in progress does not become an approved application if it never gets a substantive review. It is the substantive review process that locks in the progression of ordinances. Dan replied, “That is your interpretation of what a substantive review is.” Phil replied that it is a State law. Dan replied that it is what your interpretation of the term “substantive review” is. Joe McMahon stated that it is also the town’s attorney’s explanation. John Swanson asked for the definition regarding this that he can read. The question was asked, what does the word substantive actually mean, and that there is no definition of the term substantive or non-substantive made available (to them). Paul White stated that we do have an issue of what constitutes “substantive review”. However, we also have the town attorney’s opinion on it. Dan stated that the Board is also claiming
that the original meeting was a pre-application meeting and he is contesting that there was a form that was submitted to Maureen (Scanlon) that referred to it as being a “pre-application form”, however, this form was a State form. Their engineer met with the State and their form was a pre-application meeting form. This form was attached to their application to the town, hence the confusion. Dan acknowledged that there was no State seal on that pre-application meeting form. Tina Vanasse asked Dan if he was aware of all of the requirements required, and that all of these things needed to be included so that his application would be accepted as completed? Dan stated that his understanding was translated to him through his engineer. Tina stated that that is not what she is asking. She asked if he knows what the requirements of the Town of Sebago are to consider an application. Dan stated that what was translated to him from
his engineer was that they make the application. Tina interrupted and stated that that is not the question she is asking. Did he understand that he as the applicant is responsible to know what the requirements are, and that the application needs to be complete in order for the Planning Board to follow the approval process/procedure? Dan stated that his agent is also the applicant and technically John Swanson is the applicant of record. But, their agent is part of the team of applicants for this project. Tina then asked if the agent looked into the requirements that the Town of Sebago states makes up a complete application. She stated that she believes he didn’t because all of the information, that Phil mentioned, was missing at that time. Dan stated, “But, is that going to be considered, a complete application, as you are saying, with all of the terms and conditions, is that to be done prior to a substantive review?”
Tina reiterated that the process in this town is that the applicant is to make sure that all of the requirements for a Site Plan Review application have been met in order to go forward with a valid application. Dan asked if that makes it not pending. Does the fact that it is not complete make it not pending? Paul White stated that according to what the town attorney says, the Board did not accept any application from Mr. Swanson at that time, and Mr. Swanson did not request that the Board accept one. So, what the attorney says is that he did come in. We had a meeting, but we didn’t vote to accept the application. There was no motion made to accept it by the party or otherwise. Dan asked if it is a requirement that you make a motion one way or the other. Paul stated that it is not a requirement. Dan asked, “So, what is an application, we paid the $35.00 fee?” Tina explained that you paid the $35.00
and it is your responsibility, or your agents to check through what the requirements are in the Town of Sebago to complete the application. It is not the Planning Board’s responsibility. Dan asked, how they are not considered “still pending” when they are still in the design phase. Phil explained that that in itself is the problem. Procedures go on and ordinances change. If ordinances get changed and get accepted by the public, when we get to that point, you’re in trouble. Dan stated that that is absurd and unjust. Phil stated that that is your opinion, and Dan agreed that that is his opinion. Dan stated that they have spent substantial amounts of money proceeding in good faith on this application. There has been nothing presented on this application stating that it has been denied. As far as they are concerned this is still an open application and they should, and must, be allowed to continue on
it. Paul White stated that he understands Mr. Tocci’s position, but the attorney for the town states that the Board did not accept that application at the time and Mr. Swanson did not request the Board to accept it. Then he refers to the fact that there has been a passage of time. Paul then paraphrased the attorney’s written opinion as; A pre-application meeting before the Planning Board, and we can argue semantics about how you want to classify the meeting, does not make an application for site plan review “pending” for purposes of grandfathering the application. Then he makes reference to; In order to be grandfathered, the application must have received at least one “substantive” review. Tina stated that there lies the thing; it is under the new ordinance. Dan stated that there in lies the thing, this is not semantics, this is what is going to be determined. Paul proceeded to the next sentence (of the
attorney’s written opinion). Thus, I believe all current subdivision regulations and other laws and regulations (Paul clarified “In other words subdivision and site plan which is probably what threw him onto subdivision in looking at that.”) should be applied by the Planning Board. Paul agrees that it does create a different analysis. You don’t’ have the three tiers that may be clear, but you come in and do an application. It didn’t get accepted, for whatever reason at that time. There was a lapse in time, and then the Board gets an opinion from the town’s attorney that tells them that in his opinion they should apply the current laws for subdivision and site plan review, in our case it is the Land Use Ordinance, to the project. There’s a question of whether that application is still pending and you can come back with a project in accordance with the new laws, or whether it has lapsed. Paul
stated that is the only question he has in reading the town attorney’s opinion. Dan stated that the opinion is that the application has not been accepted. Paul stated that there are a number of facts. In the first paragraph, that’s what said. Dan responded that you certainly cashed our check and accepted that application when we came before the Board. Paul stated that you brought us an application and paid that amount of money; that is not disputed. Paul stated that he is not trying to put words in the town attorney’s mouth. He wrote this three paragraph letter. He talks about Mr. Sawyer coming in, and his opinion in the last sentence of that paragraph is that the Board did not accept any application. We’ve read that before, and Mr. Swanson didn’t request. He refers to the passage of time in the second paragraph. In the third paragraph he makes reference to specific questions of whether
it’s pending for the purpose of grandfathering. And then he makes reference to the standard of at least one “substantive” review, then the statute and the case law. Then he gives his opinion that the current regulations we have now should be applied. Paul pointed out that this is the attorney’s opinion, and he (Paul) is not going to make a decision that is contrary to it. So, the question before the Board is, do we want to continue this (or make a decision tonight). Joe McMahon stated that the Board should accept the opinion of the town’s attorney. Paul mentioned that the town’s attorney does leave open the question of whether it is “pending” for the purposes of coming forward with a project in accordance with the current law. The implication of the third paragraph seems to be that his opinion is that it is not pending for purposes of applying the old ordinances and that all current laws
should be applied by the Planning Board in its review of the revised subdivision plan. So the question is whether the old one is lapsed and the applicants need to file a new one or can they continue under the old one, but file a plan based upon the new laws. Dan stated that obviously they can’t do that. (RECORDERS NOTE: This type of project is no longer allowed in this zone under the new laws.) Paul asked Dan if he is asking the Board to take a vote to terminate which would allow the applicants to proceed to the Zoning Board of Appeals.
Dan asked Paul what the Boards options are for rulings. Paul stated that the Board has the option to say that the application under the old ordinance has lapsed. Phil Lowe questioned how the application could be considered lapsed if it was not complete. Paul stated that it never was accepted but time has lapsed and it is no longer pending. Phil pointed out that it never achieved the status of pending, so the opportunity to make that application pending has expired. Tina Vanasse pointed out that if the applicants did not meet all of the requirements that are set forth by the town, which constitutes a completed application, the burden of that responsibility falls upon the applicant. It is not up to the Board to say, hey your missing this or that. Dan stated that he absolutely agrees
with that. Tina continued by stating that whoever or whomever was working with you should have had this information, and she feels badly that they did not have all of this information from the list. Dan stated that he presumes that he (George Sawyer) was aware of it because he does a lot of work in this area, but he thinks the question is that “pending” which is really germane to this whole (thing), that word is a very key term. That application was submitted and it was accepted as far as Dan can determine; it may not have been accepted at a meeting, but it was accepted as an application as a work in process. Just like that gentleman that came in here (Richard Eaton – Revised Hanson Brook Valley Subdivision project) and he had made multiple, multiple presentations to the Board. Tina stated that you should have done that. Dan stated that we can’t now because the ordinance has changed, so he asked if they are still
grandfathered in under the old ordinance. Tina responded, “Not according to what we are saying.” Paul White stated that the Board has found a bit of information that seems to apply. If you look at the letter from the town’s attorney, it refers to the case Waste Disposal, Inc. v. Town of Porter. If you look at what the finding of the court was; 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 the local ordinance to the contrary. Dan stated that he read that and he replied to that. He stated that they did not simply dump and run an application to the Town Office. They filed an application with the State and came before the Board. That is a completely different situation to what is depicted there. Paul White stated, “Not in the opinion of the town’s attorney because he refers to it
specifically.” In other words, you’re asking me to say “Well, I don’t agree with the town’s attorney.” Paul stated that he is very willing to have a conversation that brings out the issues and makes us all understand better, what they are. John Swanson stated that that is a multi-complex response. Paul stated, “Yes, and that is why I’ve tried to read it several times.” John asked, “Which item is he trying to define in that piece of documented information. On those ten pages, what is he trying to define? I am just making a reference sir, in regard to the article that you are reading. And, or, but, and if is important.” Paul responded, “Yes”. At Tina’s request for clarification, Paul stated that he is referring to Chapter 5 of the Planning Board Manual which talks about “Pending” Applications. It does refer specifically to
the case referred to in the letter from the attorney, which he just read, which supports his position that it wasn’t pending. It says, just because you delivered it and it got receipted does not make an application pending, unless there is a local ordinance to the contrary, which means there needs to be a positive statement in our ordinance that it is pending, and it isn’t there. Dan stated that is also referring to an application which was only dropped off at the counter. It was not one that was subsequently followed up with a presentation to the Board, so that is not applicable. Paul responded, “Ok, but according to the town’s attorney it is. You can say it is not applicable, and I will listen to what you are saying. I understand the distinction you are trying to make. We did have a conversation, you did provide and original plan that had a loop; and we sat and talked about it. Again, I’ll go back to
the first paragraph, and it refers to the fact that Mr. Swanson came before the Board in May of 2009. It says that Mr. Swanson did not seek formal Planning Board review and his engineer George Sawyer stated that the project was in the “conceptual phase”. The Board did not accept the application, and again, he did not request that we do.” Dan stated that he does not agree with that. Paul explained that that is just a statement of the facts. Phil Lowe referenced the original letter dated April 27, 2009 to the Planning Board members from George Sawyer regarding this project. He quoted the following sentence from that letter; On behalf of Mr. Swanson, the owner of a 32.3 acre parcel located on Hawkes Road, I would like to open a discussion on a proposed RV park to be developed on the site. Phil stated that the form that was filled out is an application form, and it has got to be complete. There was no way at that
time, with that information, that the applicants could achieve a completed application. Jim Smith asked to speak to the Board. He explained that he was the Code Enforcement Officer at the time (of the original application). He had informed the applicants that there was a pending zoning ordinance and the fact that under the current rules it was apparent that an RV Park couldn’t be positioned on Hawkes Road. He advised them of this information in case they were not aware of questions that they may need to ask, he had no feelings one way or the other as to whether or not an RV Park is an appropriate addition to the community. With that information, he also made reference to the fact that the State has review requirements for an RV Park. Jim stated that the fact that our present zoning ordinance doesn’t allow for an RV Park in a rural zone strikes him as being an oversight on the part of the Planning Board. He suggested that a
motion needs to be made at some point in the near future. At the moment, these gentlemen do not have the opportunity to go forward. He agreed that because the Board has an “opinion” (from the attorney) they can act on that opinion one way or the other which will allow Mr. Swanson and Mr. Tocci to go through the court system. He made the statement that personally he will ask for an opinion or a recommendation on the Planning Board’s part to address an amendment to our ordinance. Paul White stated that you can’t change the current ordinance. John Swanson stated that he finds it rather odd in his opinion, how and why did a new zoning ordinance just happen to come up for a rural area. Paul White stated that this has been going on for ten years and it is based upon the State of Maine’s Comprehensive Laws. John asked, “In the Town of Sebago?” Paul responded, “And this has been going on for a
decade. So, if you’re getting some issues of paranoia that the whole process was gone through against your project, you’re incorrect.” Paul also stated that in response to Mr. Smith’s statements, “Did you tell this to the town’s attorney, and no, it was a very deliberate process that the Board went through to exclude the…” Jim Smith interrupted Paul and said, “No, that was never referenced in that way, shape or form.” Paul asked Jim to allow him to finish. Paul stated that, “I was part of this process for the past decade, prior to your (Mr. Smith’s) employment with the town. When I say that the issue was addressed and discussed amongst the committee, at the time, of whether to make it; it was not an oversight, it was addressed, discussed, and decided. So you’re (Mr. Smith) incorrect about that.” Jim responded, “OK”. Paul suggested
that we come back to the basic issue, we can have a vote. He stated that he personally is not going to vote in contradiction to the town’s attorney. He is prepared to vote that the application is no longer pending for purposes of using the old Subdivision or Site Plan Review ordinance, and they can go to the Zoning Board of Appeals if they like. He stated, “That is my opinion and I invite the other opinions from the other members of the Board.” Dan stated that we really didn’t finish the question that he had (regarding options). Paul stated that the options that we were discussing, was to have a vote that it was no longer pending. He would vote based upon the opinion of the town’s attorney that it is no longer pending. The attorney’s phraseology is very limited, “for purposes of grandfathering the application from any ordinance changes”. He would limit any vote to that very limited
finding in accordance with the opinion of the town attorney. Dan asked that this vote not be limited to “just for grandfathering purposes” but to vote on whether or not this application is pending or not, and whether it will be terminated, period. It has no bearing on the grandfathering of it because they would have to re-apply and that is not possible. Dan asked that if it is terminated, he requested that they be given the reasons as to why this is being done. Paul stated that the reason he is doing it is, after review of the letter provided by the town attorney, variant to our Site Plan Review, and the discussion of the Board, he agrees with the town attorney that it is no longer pending. Tina stated that we have to have an application to have it pending and this is not a completed application. Paul stated, “It could be “not pending” for that reason as well. That could be the reason you (Tina) believe it is
not pending.” The term “substantive” was reviewed in the State of Maine’s Revised Statute 1 M.R.S. § 302 that was referenced in the attorney’s letter. Paul stated that this refers right back to the language that the attorney uses in his letter as follows;
“…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.”
There was some additional discussion on the term substantive review. Before a vote was taken by the Board, Dan asked to quickly address an item that was attached to the packet of information that he submitted. He stated that a Vernal Pool survey was done twice on the property. Phil mentioned that this information is getting into the area of a substantive review. Paul stated that he is going to allow him to include anything he wants into the project file. Dan stated that he just wants to point out what their rational was in going forward. They were trying to get a design established to these standards to come back to this Board and finish this application and be done with it. They were proceeding with due diligence and they were proceeding in good faith. Paul stated, “You
were sir, and you did do work on it, and we did discuss it, and I’ve no doubt you interacted with the State authorities. Again, I’m going to assume that the conversations and the information provided to the town attorney included that. He has issued an opinion, and I’m not going to decide in contrary to it.” Tina Vanasse asked Maureen to look up the word substantive. Tina then read aloud the legal dictionary definition of the word as follows;
1: of or relating to a matter of substance as opposed to form or procedure.
2: affecting rights, duties, or causes or actions
3: existing in its own right (standing by itself)
Tina stated we have to make sure that the application is standing by itself to go before the Board. Dan stated, “That is your interpretation of that.” Tina asked how he would interpret it. Dan stated he would interpret it as being substantive as opposed to being procedural. Procedural are the things that you do in order to comply. A portion of that is a technical form of how that presentation is made. It has to do with the “at hand”, not with the method of making the application. Tina stated that to be substantial that is what the review is about. It is to be sure that the application is complete before being considered. Dan stated that if what she is saying is true, then there is nothing that they could have done to avert their situation right
now. Tina stated, “Yes there is.” Dan asked, “What is that?” Tina stated that he could have come up and looked at the Codes to determine what the items are that are needed to have a complete application? Dan stated, “But, we could change it because we are still making changes to date.” Tina replied that he could go through and put in the information and make not of that fact that it may change or change is pending, but the pieces to that application weren’t there. There wasn’t enough substantial information to let that application stand as an application according to the constraints. Dan stated that he completely understands Tina’s point, but for them to design to those standards knowing that they still have to make substantial changes in order to comply with the State is rather foolish. Tina responded, “In your opinion sir. We have to have something to get our teeth
into so that we can keep order with the regulations going in this town, for the benefit of all people, you, the neighborhood, me, and whoever is involved.” Paul White referred back to the fact that the town’s attorney has issued his opinion based on the information that was provided in the conversation with the town’s representatives. So he thinks the best thing to do is to put it to vote, whether it’s pending, which would allow them to then seek an appeal. Dan stated that they never received notification that the application was not complete. Tina stated that if they had looked into making sure their application was complete they would have known it was not, and it is not the Planning Board’s responsibility. Dan stated that he agrees with that, but if they were not in compliance with that, you would think we would be notified of that fact. Paul stated that your agreement was that you were going to go back to work on
your project and come back to us. That was where we left it. Phil Lowe reiterated that there was no request to review the application. Paul White reiterated that this is what the attorney refers to in the last sentence of his letter. Dan stated that he doesn’t see any formal statement that the Board didn’t accept it. Paul stated that he doesn’t know where the attorney gets the specific reference, that Mr. Sawyer makes the statement that this was in the “conceptual phase”, it may have come from the meeting minutes. (RECORDER’S NOTE: This statement was in the letter dated April 27, 2009 that was submitted from Mr. Sawyer with the original application.) John Swanson asked if Mr. Sawyer asked the Planning Board to go out (to the site) to do a walk-through. Paul stated that he does not recall him doing so. Tina mentioned that it would have been in the minutes of the meeting, because that
would have been a major request. Paul stated that normally what would happen is that they would do a Site Walk as part of the process, but that was never requested. Paul also stated that he believes what is being referred to, is done for a completed application and we don’t believe we ever had that. It does specifically say a completed application, assuming it is a completed application, for a Site Plan Review together with the documentation, shall be placed on the Planning Board agenda. We would have a completed application placed on the agenda, and then the Board would have a sixty day requirement to approve or disapprove it. Paul stated that he has tried to go around it and give the applicants all the opportunity, but he can’t disagree with the attorney. The attorney was paid to give an opinion and he (Paul) has an obligation to respect it. It gives the applicants a foundation upon which they can make their appeal and base
their arguments. Dan stated that the Board is not bound by the attorney’s (opinion). Paul responded that although he is not bound by it, after reviewing the information, he respects his determination. He stated that we have read the statute and we have read the case law. It is sort of legalistic chasing around the issue to deny it. The Planning Board was asked to look at the status of the application and admittedly you paid the $35.00 and your representative basically said, we need more information for a complete application, we discussed it, and then he said alright we’ll come back with a complete application. Then, after a time period which was close to two years, we had a change in the Site Plan law. That was the issue on whether (or not) it continues. The final outcome is that there is no “pending” application because it wasn’t completed. Phil Lowe mentioned that there has been an issue raised,
that he has a conflict of interest. He does not, but he does not want to enter into the equation any grounds for the applicant to call this vote (invalid), so he will not vote on this matter. Paul White made note of the fact that with Phil abstaining there will still be a quorum of four out of seven members voting on the matter.
Joe McMahon made a motion that there was no “pending” application because it did not have one substantive review in accordance with the statutes and is not considered a complete application. It was seconded by Tina Vanasse. Motion carried with all in favor except for Phil Lowe who abstained from the vote.
VI New Business
a. Miscellaneous Item – Proposed Fire & Rescue Building Site – (Town Manager James M. Smith III) – (P/O Map 2, Lot 34)
Town Manager Jim Smith asked to give a brief introduction to the Planning Board for a project that will be on the agenda for review at the next meeting. Basically, he explained that a vote was taken at the Annual Town Meeting in which the town was authorized to approve funding to acquire a piece of land that is now owned by the Shaw Brothers Gravel Pit location on Route 114. This project is in the design phase and will not be built until a later date. He submitted a copy of the proposed design plan for this project for review by the Planning Board members.
This item will be added to the agenda for the July 12, 2011 meeting.
b. Miscellaneous Item – Disclosure Statement on Recorded Minutes – (Planning Board Secretary Maureen F. Scanlon)
Maureen Scanlon requested approval to include a disclosure statement at the end of all Planning Board Meeting minutes from this day forward as follows;
Note: These minutes are not verbatim. A recording of the proceedings are available in the Clerk’s office during regular office hours.
Phil Lowe made a motion to approve the aforementioned disclosure statement as presented. It was seconded by Tina Vanasse. Motion carried with all in favor.
Paul White reminded the Board and the Public that all conversations about Planning Board matters need to take place publicly in front of the Board.
VII Old Business (Continued)
a. Miscellaneous Item – Further Exploration of Issues regarding Long Beach LLC (Samuel & Jan Minervino)
Maureen Scanlon reported that the Minervinos have contacted her and asked that she inform the Board that they are still in the process of gathering information before coming back to the Board as requested. They do not believe they will be ready for the August meeting but will contact her to be added to the agenda if they are. However, Maureen did receive a faxed letter today dated June 14, 2011 addressed to the Planning Board Chair from David C. Pierson, who is an attorney for Eaton Peabody Attorneys at Law, and is representing the Minervinos. Copies of this letter notifying the Planning Board that Long Beach Marina, Inc. is withdrawing the application for the 30% Expansion Project were distributed to the Board members. A copy is also included in the Planning Board file for this project. Tina
Vanasse stated that she has a problem with people that have the responsibility to follow up with the town and keep postponing it meeting after meeting, yet they are opening up for business. Paul White asked the Code Enforcement Officer if what they are doing what they should be doing? Bob DeVilleneuve stated, “Yes, they are doing the best that they can.” Paul asked Bob if he considers their current activities as placing them in violation of the town’s codes. Bob replied that the only violation right now is the removal of the four chains that held the barge in place. They informed Bob today that they have had to make several phone calls to the diver that will be performing the removal services and the chains will be removed by this Friday. The dock is gone already. Paul stated that there is a specific enforcement procedure for a person that is in violation of a municipal ordinance, which is a civil proceeding that would be
addressed in a District Court. This may mean that a civil action against the Minervinos for violation may have to be filed if they persist. This would mean that the town’s attorney would need to be involved and the Code Enforcement Officer would be the representative for the town. Tina Vanasse commented that once again, this whole process is going to take up the whole summer because the Minervinos have not been before the Board. Paul stated that they did come before the Board and they were told that they had the option of putting in an application if they want to continue their change in use, or their current use. They also had the option of ceasing what the Code Enforcement Officer told them to stop doing. To a certain extend they have done that except for an issue where the chains are still in place. There is the other issue of not conducting their business. They seem to be trying to conduct their business and respond under
the instructions of the Code Enforcement Officer which is appropriate. If they stop doing it, there is no reason to put in an application for it. There was some discussion on the chains themselves. Paul asked Bob DeVilleneuve if the Minervinos have been given a formal letter, from him, telling them to remove the chains. Bob stated that he has not sent one and that he has been told they will be removed by Friday. Paul asked Bob, who has done some of this enforcement before, if it will be tolling from the day he sends them a letter. Bob stated that there is a seven day period and then they could be subject to a penalty. It was mentioned that they were already sent a letter previously telling them to remove it (the barge/dock) within 45 days and they didn’t do it, because the chains are part of the barge structure. Paul asked if the letter that was sent earlier refers specifically to the chains. Bob stated that he does not
recall that specifically, therefore, he will have to refer back to that letter. Paul stated that the Board is prepared to go forward and do what is necessary. He stated that the only violation that they seem to have right now is that they have to remove the chains, and they are going to remove them, or they will have to deal with the consequences. Jim Smith stated that once Bob lets him know that they violation still exists; it will be brought before the Board of Selectmen for further enforcement proceedings. Joe McMahon had some questions on how the additional properties are being used and if they are being used for business purposes such as parking. Paul mentioned that this goes back to Tina’s statement that they don’t seem to be cooperating with the Board in identifying their operation and explaining it. This may cause the Board to move forward, if necessary, with a civil action. The matter of potential daily fines was
discussed. It was also stated that if the additional lots are being used for business purposes, then that is an unauthorized expansion of use. It was again noted that the original letter needs to be reviewed for all of the items that need to be addressed regarding the possibility of an unauthorized expansion. Phil Lowe spoke about this matter and stated that basically he would like this to be more of an open process to resolve, once and for all, the issues that have been a problem for too long already. There was some discussion amongst the Board regarding the codes/ordinances that may or may not apply in this location. There was also discussion with input from the audience regarding the issues that need to be addressed regarding the determination of whether or not the business was expanded without authorization. It was determined that this Board intends to move forward. The Code Enforcement Officer is to review the issues that are to be
addressed, compile a list of what the violations are and put them in a letter that will toll the statute and get things started on course. There was some discussion on the role of the Planning Board vs. the Board of Selectmen in the enforcement process.
b. Miscellaneous Item – Request for Street Name Change in the Taralaine Subdivision (Taralaine Drive) – Sherry & Joseph Miller
Bob DeVilleneuve stated that this has been an ongoing matter and that he has no problem with the street name being changed. However, the ordinance specifically says that for any changes or alterations the property owner needs to go before the Planning Board. This is all that the Miller’s need to do, they don’t have to worry about adding to a deed, there is no divisions going on, etc. All they need to do is fill out an application that they want a name change and the Board can either approve or deny it. Phil Lowe mentioned that the response from MMA states that it triggers the review process which is in place to protect the property owners that already live in the subdivision and the abutters that live around it. It may seem like a simple name change, but if other issues are found,
they need to be addressed. Bob clarified that as far as he is concerned, he has no problem with it, and the Millers seem to think that he is holding up the process. It was reiterated that they need to come before the Board.
Tina Vanasse made a motion to adjourn at 9:25 p.m. It was seconded by Phil Lowe. Motion carried with all in favor.
Maureen F. Scanlon
Administrative Assistant/Deputy Clerk
Note: These minutes are not verbatim. A recording of the proceedings are available in the Clerk’s office during regular office hours.