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Planning Board Minutes 10/11/2011
7:00 p.m.
Tuesday, October 11, 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, Joe McMahon, Dick Perry, Tina Vanasse, Paul White, Recorder Maureen Scanlon.

Guests present: Jim Libby, Claudia Lowe, Selectmen Allen Crabtree and Edie Harnden, Phil Strike, Ken Littlefield, James & Marjorie Jansz, Dean Palli, Steve Titcomb.

II      Correspondence

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

1.      A revised documentation packet from James & Marjorie Jansz.  This information replaces the documentation packet that they submitted for review at the September 13th meeting.

2.      A copy of an e-mail correspondence addressed to Town Manager James Smith from Jon Whitten Jr. (from Terradyn Consultants) referencing the fact that the required permits from MDEP have not been received yet and he doesn’t see any reason to go in front of the Planning Board tonight without that permit in hand.

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.

III     Open to Public Questions - None

IV      Review of Minutes (August 9, 2011 & September 13, 2011)

Phil Lowe made a motion to accept the August 9, 2011 meeting minutes as presented.  It was seconded by Chuck Archer.  Motion carried with all in favor except for Paul White who abstained from the vote.

Chuck Archer made a motion to accept the September 13, 2011 meeting minutes as presented.  It was seconded by Tina Vanasse.  Motion carried with all in favor except for Phil Lowe, Joe McMahon, and Dick Perry who all abstained from the vote.

V       Old Business

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

Allen Crabtree acknowledged the fact that the MDEP permit has not been received yet as mentioned in the e-mail correspondence from Jon Whitten Jr. (from Terradyn Consultants) to Town Manager James Smith.  However, the Board of Selectmen would like to proceed tonight and are requesting a “Conditional Approval” from the Planning Board.  He explained that communications with the MDEP have indicated that they have no problem with granting the required permit; it is just that due to administrative delays they have not been able to process it yet.  He asked that the Site Plan Review process move ahead with the understanding that if anything is brought up by the MDEP that needs to be addressed it will be brought back to this Board for further review.  Allen explained that this important step indicates that the town is going through the proper channels for the review processes.  Public Hearings have been scheduled to present this information to the public.  The first is scheduled for October 25th and the next for December 8th.  He stated that it would be helpful at those Public Hearings to let the residents know that a Conditional Approval has been granted by the Planning Board and that progress has been made in the overall process.  He explained the next steps in this process such as obtaining bids for the site work in order to bring these cost figures before the residents for eventual approval.  The Board of Selectmen is concerned that if they wait too long to move forward on this project that both the bond rates and the construction costs will continue to rise.  Jim Libby mentioned again that it is very difficult for this Board to make a decision without the actual building plan being submitted for a complete review.  He explained some of the concerns that he has regarding this project.  Allen Crabtree responded to the concerns that Jim brought up.  Paul White referenced the Site Plan Review ordinance and stated that it does in fact call for building plans to be submitted during the review process.  He explained that normally when an application is submitted for Planning Board approval the building design has already been determined and this information is included in the application.  He stated that there is a possibility that the building design could change for a site that was already approved for the “general” building design plans that were originally submitted.  Phil Lowe spoke about the fact that this project would be beneficial to all of the residents of Sebago and a “Conditional Preliminary Approval” for the site would be reasonable.  Paul White reminded the Board members that the function of this Board is to review an application based upon the ordinance that governs it.  Joe McMahon mentioned that this Board is approving the site for a purposed purpose and it is not responsible for determining whether or not the town needs to build this facility in the first place.  The determination of need is not this Board’s role.  What it is basically responsible for is to assure that there is nothing wrong with this site.  The eventual approval of the building itself would be the next step in the overall process.  Phil Lowe suggested the following three approval conditions:

1. That the DEP permitting is completed;
2. That once the final plan of the building is finalized, that an  
    additional Public Hearing be held;
3. That this Board maintain the possibility that no matter what
    degree of change happens that this Board has the right to pursue  
    an entire Site Plan Review again.  

There was further discussion on the site conditions, financing, and the  need for final approval to proceed from the residents of Sebago.  There was also some discussion on the conditions and safety concerns at the existing Fire Station 2 on Sebago Road (Route 114).  

Phil Lowe made a motion to grant a “Conditional Approval” for this project dependant on the DEP permitting.  It was seconded by Dick Perry.  Motion carried with four in favor, two opposed, and one abstaining from the vote.                  

b.      Proposed Condominium Project at 802 Sebago Road –           (Dean Palli) – Map 28, Lot 10

Paul White asked Mr. Palli if he has submitted a new application for this project.  Dean stated that he was not told that he had to submit a new application.  He explained that his attorney could not make it to tonight’s meeting.  Paul asked if he would like to postpone this process until his attorney could be present.  Dean explained that he does not think that is necessary, because he feels as though he has submitted the “burden of proof” that shows that it is legal to convert these structures to condominiums according to the State Law.  Paul White referred to the opinion previously received from the Maine Municipal Association which states that Mr. Palli’s project meets the specific exception to this rule.  Paul asked if Mr. Palli has a copy of this opinion from MMA.  Dean stated that he does have a copy of it; he has read it and feels as though it favors him.  Paul pointed out that in the first paragraph of this opinion from MMA there is a sentence that reads 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 of use) and would therefore qualify as a subdivision.  This is exactly what has occurred and therefore this project falls under the authority of the Subdivision ordinance, and according to this ordinance there is not enough land available to create a subdivision (with condominiums) on this property.  Dean stated that these units weren’t used as seasonal; they were used as year round.  Paul stated that there has been an issue as to whether they had been abandoned from that purpose for years, which means that Mr. Palli would have to request to start up that business again.  In other words they sat there empty for years (before Mr. Palli purchased the property).  Dean stated that he knows for a fact that they were still being used, even with the poor condition that they were in, because he was unable to rent a room on several occasions due to no vacancies.  The Board stated that Mr. Palli would have to provide proof of these units as being in continuous use.  Paul White asked Dean if he would like this Board to take a vote on this matter tonight.  For the benefit of the newer Board members, Paul White briefly reviewed the history of Mr. Palli’s request to convert the structures on his property to condominiums.  Mr. Palli asked that it be noted that the former owner (before him) lived year round on that property.  Paul responded that no one is denying that anyone could live there; what their saying is that it can’t be converted to a condominium.  Phil Lowe mentioned that in the Planning Board Manual there is a section on condominium projects.  It states that “Generally condominium projects must be reviewed as subdivisions under the municipal subdivision law.”  So, the concept that this is not a subdivision doesn’t apply.  It also appears that the non-conforming use has expired because Mr. Palli has no documents to prove otherwise.  Mr. Palli stated that it has expired as a motel but not as condominiums, he is trying to do condominiums so why does that even apply.  Joe McMahon explained that after it expires, it reverts back to current zoning laws and current zoning laws would only allow a single family home on that lot.  There was some discussion amongst the Board members regarding the issue of whether or not the original application has lapsed in the first place.  In regards to the matter of the discontinuance of non-conformance use, Phil Lowe referenced Section 2 of the town’s Land Use Ordinance.  According to Section 2 (Non-Conformance) (Page 2-1) Item C (Continuance) #1.b. (Existing Non-conforming Uses of Land) it reads as follows: “If any non-conforming use of land ceases for any reason for a period or more than twelve (12) consecutive months, any subsequent use of land shall conform to the regulations specified by this Ordinance for the district in which such land is located.”  He stated that at this time, there is no evidence or proof (just suggestion) showing that the property has been in use, and that it hasn’t expired.  He also explained that the burden of proof is upon the applicant to prove that they were in continuous use (as a business).  In regards to the application having expired or not, Paul White referred to the fact that all Site Plan Approvals expire within one year of the date of issuance unless work has commenced.  However, a Site Plan Approval was not granted for this project and the ordinance does not actually address the expiration of the application itself.  There was some discussion regarding the fact that if an approval lapses after one year it would stand to reason that an application would also lapse after one year.  It was noted that this in not specifically addressed in the town’s ordinance.       

Phil Lowe made a motion to deny the application because the condominium conversion will create new dwelling units and there is not enough square footage.  (As specifically referenced in the MMA opinion.)  It was seconded by Tina Vanasse.  Motion carried with all in favor.                   

c.      Sebago Ridge Estates – Planning Board to Sign-off on Mylars  

The Board members that approved this project signed off on the
Mylars.  These will be recorded at the Registry of Deeds and filed at the Town Office.

VI      New Business  
a.      Concept of Reviewing Ordinances Discussion  

There was some general discussion on this subject with the Board agreeing that a workshop should be held to review the existing ordinances for possible “fine tuning” once a new Code Enforcement Officer is available to assist in this process.  

VII     Executive Session pursuant to Title 1 § 405 (6)(A) to Discuss a Personnel Matter and Title 1 § 405 (6)(E) to Discuss the Duties & Responsibilities of the Board

Phil Lowe made a motion to enter into Executive Session pursuant to Title 1 § 405 (6)(A) to Discuss a Personnel Matter and Title § 405 (6)(E) to Discuss the Duties & Responsibilities of the Board at 8:13 pm.  It was seconded by Donna Cook.  Motion carried with all in favor except Paul White who abstained from the vote.

The Board returned to regular session at 8:46 pm.  No action was taken during Executive Session.

VIII    Adjournment

Phil Lowe made a motion to adjourn at 8:47 p.m.  It was seconded by Dick Perry.  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.