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Planning Board Minutes 09/13/2011
7:00 p.m.
Tuesday, September 13, 2011

I       Call to Order

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

Present: Chuck Archer, Donna Cook, Tina Vanasse, Paul White, Recorder Maureen Scanlon.

Absent: Phil Lowe, Joe McMahon, Dick Perry

Guests present: Jerry Holt, Sue Bowditch, Ben Bowditch, Shirley Brown, Anita Crowe, Lisa Smith, Jon Whitten Jr. (from Terradyn Consultants LLC), Marcia Christensen, Selectmen; Edie Harnden, Allen Crabtree and Ann Farley, Jim & Marjie Jansz, Joe Aldous, Susan Tappan, Jim Libby, Mike Borsetti, Dean Palli, Town Manager Jim Smith, Alan Greene, Ted Greene, Phil Strike, Ken Littlefield.

II      Public Hearing – Site Plan Review – Proposed Fire & Rescue Building Site –
(Town Manager James M. Smith III) – P/O Map 2, Lot 34

Paul White stated that he has a question as to whether or not the town has properly authorized the expenditure of money for this building.  He knows that the town has authorized, at the Annual Town Meeting, the purchase of land for the Fire & Rescue Building.  However, he believes what was not fiscally authorized was the expenditure of all the money it would take to construct the building.  This means that it may be premature to go to the stage of seeking approval for construction before the legislative body has properly authorized the expenditures.  Having stated that, he opened the Public Hearing for comments from the Public.  
Selectman Allen Crabtree explained that at the Annual Town Meeting the voters approved the transfer of funds to allow for the acquisition and development of the site.  There was no approval sought, or given, for funds to construct the building.  The concept was to go through the preliminaries to make sure that a Site Plan Review by the Planning Board was in place, and then approval for the expenditure of funds to construct the building would be sought from the voters.  If the Board of Selectmen holds off on their action until they go to the town’s people; and the town’s people then say, “You don’t have a Site Plan Review, and you have to follow proper procedure.”  You’re really putting the cart before the horse.  Hence, the Site Plan Review is needed in order to proceed, and then the voters will have a chance to vote.  Paul White stated that he sort of sees the horse on the other end of the wagon, but he understands what Allen is saying.  Town Manager Jim Smith explained further that at this point the only money being spent will be for the acquisition and development of the land.  The actual constructing of the building will then be put out for competitive bids and then presented to the voters for further approval of the necessary funding.  Paul White clarified that tonight’s Public Hearing is limited to addressing the Site Plan Approval.  He noted that it should be clear in any contract that all the town has the ability to do now is purchase the land, and not contract for the building.  Jim Libby stated that what bothers him is that the voters are being asked issues about the building that the Planning Board has to be able to also ask in order to make proper decisions during the approval process.  He doesn’t see anything being given to the Board that will allow them to be able to make those decisions.  Paul agreed that information such as what the building dimensions will be, and how many toilets will be included, and information such as this is necessary for the approval process.  He mentioned that most people that come before this Board for a Site Plan Review already have their plans for the construction of the facility and the appropriate funding for the project in place.  Jon Whitten Jr. from Terradyn Consultants LLC mentioned that each package that has been submitted for review has included architectural plans.  These plans show the dimensions of the building and all of the spaces within it, such as bathrooms, meeting rooms, etc.  This was done through the work of an architect and a Fire & Rescue Committee that worked on this for many months before he was brought in on the project.  Paul stated that once this was done, it should have been presented as a total project to the voters for the appropriate funding approval.  Mike Borsetti stated that he misunderstood what tonight’s meeting was about; he thought it was to discuss the purchasing of the land and not an actual Site Plan Review.  He started asking questions about the building locations that were explored before deciding upon this particular property.  Paul explained that these are the types of questions that should be asked at Board of Selectmen meetings and eventually at the Annual Town Meeting where the expenditure of the funds would be authorized.  Allen Crabtree mentioned that this matter has been discussed at many Board of Selectmen meetings and Annual Town Meetings over the past years.  He briefly reviewed some of the items that were addressed over the years.  He also referenced Warrant Article 10 from the Annual Town Meeting that was held this past year on June 4, 2011 as follows;

“To see if the Town will vote to authorize the Board of Selectmen to transfer up $268,674.00 from the Capital Investment Program, that amount for the acquisition and site development of a parcel of land to be used for a future Town Building to be located in the Shaw Brother’s Pit on Route 114.”  And then the rest of the article spelled out where the money would come from.  

After some more discussion on the funding for this project, Paul asked Jon Whitten to proceed with his presentation for the public.  Jon gave a brief history of the progress to date and reviewed the specific details of this project, most of which has already been presented at prior Planning Board meetings, such as lighting, traffic impact, soil conditions, paving, etc.  He answered questions from the Board members and the public.  These questions ranged from designated parking areas, the status of “standing water” in the floor of the existing (gravel) pit, the elevations of the building and the site, and the entranceway to the site.  

To clarify matters on the process of approving the construction of the building, Paul stated that they can propose their building and they can always come back to seek a change if the town decides to authorize a building of a different size or shape.  Jim Smith stated that the funding for the land acquisition is already available therefore it will not impact future taxes for the residents.  It is the funds for the construction of the building that will need to be approved down the road.  Deputy Fire Chief Alan Greene stated that by building this Fire & Rescue building on this location we will be combining services which will allow us to close two (antiquated) fire stations.  This also means that one fire (engine) truck will not be replaced when it is retired from service.  

Paul White closed the Public Hearing at 7:50 p.m.

The regular Planning Board meeting commenced at 7:51 p.m.      
III     Correspondence

The following correspondences were distributed to the Planning Board members at the meeting;

1.      A copy of a correspondence received from Planning Board member Phil Lowe
(dated September 11, 2011) regarding his input on agenda items, in lieu of his planned absence from tonight’s meeting.

2.      A copy of an e-mail correspondence received from Planning Board member Joe McMahon (dated September 12, 2011) regarding his input on agenda items, in lieu of his planned absence from tonight’s meeting.

Copies of these correspondences 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.

IV      Open to Public Questions – None

V       Review of Minutes (August 9, 2011)      

        Due to the fact that there was not a quorum present tonight, of the Board Members that attended the Planning Board Meeting on August 9, 2011, the minutes of that meeting will not be approved until next month’s meeting on October 11, 2011.

VI      Old Business

a.      Site Plan Review – Proposed Fire & Rescue Building Site –
(Town Manager James M. Smith III) – P/O Map 2, Lot 34

Paul White stated that the Board doesn’t necessarily need to give a final approval tonight since the Department of Environmental Protection’s approval still has not been received.  However, the Board can go through the check list of items to assure compliance with the Site Plan Review ordinance.  This process commenced without any voting on each item being done tonight.  Donna Cook asked if a cost analysis was performed to compare the cost of maintaining the two existing buildings to the potential cost of maintaining just one building.  Fire Chief Ken Littlefield stated that this has not been completed.  He stated that although this new building is bigger, the existing buildings are not cost effective to maintain because of the mere fact that they are extremely difficult to heat due to the lack of insulation and the conditions of the buildings.  Therefore, this new building is expected to be more energy efficient than the existing structures.  Jim Smith mentioned that the Town of Standish offered to donate a fire truck to be housed in this new building.  The reason for this offer is that they have no fire protection services available for a quick response to fires in the Ward’s Cove area of Standish.  Sebago and Standish already give mutual aide to each other so it would make sense for Standish to have this truck available for the Sebago Fire Department to use.  This offer also includes the maintenance costs for their truck and they will pay 33% of the building maintenance costs such as heat and electricity.  The Board continued reviewing the items on the Site Plan Review Voting Matrix and addressed each item as necessary.  A copy of this form was given to Jon Whitten for his review as to what the Board will be specifically addressing during their final review and approval process.  

This item will be added to the agenda for the October 11, 2011 meeting.    

b.      Easement Dissolution Issue – (Marjorie & James Jansz) –
Map 2, Lot 2-H

Mr. Jansz stated that they did take the Board’s advice and consulted with an attorney on this matter.  He submitted a packet of documentation to the Board that he asked that they review at their convenience.  A letter from their attorney is included in this packet.  The attorney’s letter summarizes the chain of events and concludes that John Porter has no ownership interest in an easement on the Jansz property.  Mr. Jansz stated that he has looked at some of the town articles and one of them says that an easement should have a purpose, a width, and a location.  He was wondering what the process is, or how these plans are recorded.  Paul explained that at that time it would have been recorded by the Developer, and at the present time, the Board is moving towards having a representative from the Town Office do the necessary recordings to assure that they are done properly and on a timely basis.  He also stated that the original purpose of the easement was as a water retention pond.  Mr. Porter came back to the Board at a later date and requested a change which was approved.  Mr. Jansz explained that the bottom line for them is that there seems to be a discrepancy in the actual filed plans.  He asked the Board if they would take this documentation into consideration and he asked to be put on the agenda for the December 2011 meeting in order to follow up with them on the matter.         

Paul White stated that due to the lack of proper documentation (a completed application); this item will not be put on the December 2011 agenda.
c.      Proposed Condominium Project at 802 Sebago Road –           (Dean Palli) – Map 28, Lot 10

Mr. Palli stated that he wanted to try and finally resolve this issue with the Planning Board before proceeding to the next level of going before the Zoning Board of Appeals.  He expressed frustration that he has been before this Board several times and has been through two Code Enforcement Officers and this matter is still not resolved.  He stated that when he previously brought his attorney to the Planning Board meeting, his attorney explained that in the situation where a Condominium Ordinance does not exist in a town, it would revert back to the State’s statutes.  Paul White noted that Mr. Palli’s attorney is not present tonight.  He asked if Mr. Palli has an open application before the Board.  Dean responded that he is not sure, but may have one from three years ago.  Paul noted that it may have lapsed by now.  Dean clarified that basically he has been told by this Board in the past that the burden of proof is upon him.  He explained that he found burden of proof in the State Statute that was sent to him today from his lawyer.  He stated that his lawyer told this Board verbally of this proof approximately a year ago.  Paul explained that “verbally” is different from “written” documentation that the Board can have in a record.  Dean stated that looking at the whole project, this property that he purchased probably should have been condemned.  He has been doing a lot of handyman work cleaning it up.  He has had several purchase offers in which the individuals have backed out of because this matter still has not been resolved.  The Board reviewed the information in the Planning Board file for this matter.  The letter in this file dated March 11, 2011 from Code Enforcement Officer Bob DeVilleneuve was referenced in which it sites the Non-Conformance and Existing Non-Conformance Use of Structures.  In this letter it is noted that Mr. Palli still has these units listed with Mr. Titcomb of Maine Real Estate Network of Standish, Maine, and as Condominium Units.  He was ordered to cease and desist immediately upon advertising these structures as such and preparing for sale until he has obtained permission from the Planning Board by a Site Plan Review and the necessary permits from the Code Enforcement Officer.  Mr. Palli stated that he had spoken to Bob DeVilleneuve and determined the price for the necessary permits in order to proceed with the restoration efforts.  Paul White referenced the e-mail to Bob DeVilleneuve from staff attorney, Kristin M. Collins, from the Maine Municipal Association dated January 15, 2010 regarding the subject of these building units being converted condominiums as follows;

“The only exception would be if these cabins were used commercially as transient rentals and they are now being converted into residential condos, since this would arguably create new dwelling units (because of the change in use) and would therefore qualify as a subdivision.  In such a case involving a change of use, any land use requirements pertaining to the new residential use could also be applied.  In Sebago’s case, I see that the Subdivision Ordinance actually defines “subdivision” to include condominiums.  However, I do not think this can be applied to condominium conversions, because the subdivision law, 30-A M.R.S.A. 4401(4)(H-1) would not allow an ordinance to expand the definition of “subdivision” to include conversions.”

Mr. Palli was provided with a copy of this e-mail for his records.  Paul White stated that this Board is constrained by the law and the opinion given to them from the Maine Municipal Association that says that since the town doesn’t have a Condominium Ordinance that it has to be reviewed under the Subdivision Ordinance, and if it exceeds the Subdivision requirements, it is not permitted.  In this particular situation, there is not enough land available to meet the requirements of the Subdivision Ordinance in order to convert the structures to condominiums.  Paul explained that Mr. Palli has the choice of asking this Board to make a decision which will obviously be negative and he can then take it to the Zoning Board of Appeals, but he might want to confer with his attorney before proceeding.  There was more discussion regarding condominiums in general.  Paul stated that another option that Mr. Palli has is to petition the town’s Selectmen to adopt a Condominium Ordinance that would allow for the conversion of his buildings.           

VII     New Business  
a.      Annual Ordinance Review Workshop –
(Planning Board Member Phil Lowe)
This agenda item was “tabled” in the absences of Mr. Lowe and a Code Enforcement Officer (Recorder’s Note: Bob DeVilleneuve retired/resigned from the Code Enforcement Officer’s position last month).  It was noted that the Planning Board receives guidance/input from the Code Enforcement Officer during the Ordinance review process.  Donna Cook stated that as a relatively new Planning Board member she would find it very helpful to conduct a workshop to review ordinances on an annual basis.   
VIII    Adjournment

Chuck Archer made a motion to adjourn at 8:50 p.m.  It was seconded by Donna Cook.  Motion carried with all in favor.

Respectfully Submitted,
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. 0000000000000000000000000000000000000000000000000000000000000105000000000000