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Planning Board Minutes 02/14/2017
I       Call to Order

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

Present: Jim Jansz, Joe McMahon, Tina Vanasse, Paul White, Code Enforcement Officer Brandon Woolley, Recorder Maureen Scanlon.

Absent: Donna Cook

Guests present: Mike Gotto (from Stoneybrook Consultants, Inc.), James Keltos, Roger Mercaldi Jr., Gwen Mercaldi, Sam Minervino, Jan Minervino, Roger Jones, Donna Jones, William Harrop, Bruce Clift, John Cunningham and Judy A.S. Metcalf (from Eaton Peabody Attorneys at Law), Jill Cramer and Bradley Morin (from Bourque & Clegg LLC Attorneys at Law), Robert Rayner, Larry White, Suzanne White, Bruce Weymouth, Kathy McDade, Steven McCandless, Nicholas Harrington, Steven Hatch, Alan Herrick, Kerry Herrick.

II      Public Hearing – Site Plan Review – Property located in a Shoreland Zone (Property owned by Long Beach LLC) (Applicants are Samuel & Jan Minervino) – Map 19, Lots 99 & 100

        Mike Gotto from Stoneybrook Consultants who represents Sam and Jan Minervino, also known as Long Beach LLC, proceeded to review, in detail, the proposed design plan to move the existing boat launch/ramp to the new location.     

        Attorney John Cunningham who also represents Mr. and Mrs. Minervino asked to speak in order to state some legal points in support of the application.  He proceeded to distribute documentation in regards to this matter.  His submittals are hereby considered part of the record and will be included in the Planning Board file for this proposed project.  

Mr. Cunningham stated that there has been some confusion as to what it is that the applicants actually own and therefore it is his intention to clarify this matter.  He explained that normally you would need to refer to a deed to establish a person’s right title and interest to pursue an application.  In this case the first document submitted is a deed in 2001 from Sam Minervino’s parents to Sam and Jan which conveys three lots.  It uses the lots from the old subdivision map.  The lots are represented on the Sebago Tax Map as lots 102, 101 and 100.  In 2004, Sam’s parents made a corrective deed because the 2001 deed has a mistake in it.  It wasn’t supposed to have conveyed lot 101 which was supposed to have stayed under the ownership of Sam’s parents.  The corrective deed does not include lot 101 as was originally intended.  Sam and Jan own lot 102 which is not part of this application and lot 100 which is.  The point is, that in these deeds the only part of land that is at issue is lot 100 which is the half lot and it is in both deeds.  The deed for lot 99 which is the other lot that is part of this application and is owned by Long Beach LLC is also included in Mr. Cunningham’s submittal.  

Mr. Cunningham proceeded to review a court decision in regards to a lawsuit and the recreational easement for the plaintiffs (only the people that participated in the lawsuit) that resulted from that case.  He explained that the court’s decision says that they now have an easement only over this specific portion of land and that this decision supersedes any other prior agreements.  The point of this being brought up was due to the fact that several individuals have been looking at their deeds that were created many years ago and claiming that their deeds say that they have certain rights that they no longer retain.  This agreement entered by the court says that a trade was made.  The parties involved in the lawsuit have agreed to obtain a recreational easement on the terms that were laid out which covered a very specific area, in exchange for which there are no longer any other easement rights across the Long Beach land.  This was a trade and settles where those easement rights come from which was determined by the court and agreed to by the involved parties.  

Another court case decision that is included in Mr. Cunningham’s submittals determined that Sam and Jan Minervino and Long Beach LLC own the land to the low water mark of the lake.  Mr. Cunningham pointed out the fact that not everybody that has been present during the Planning Board’s review process of the Minervino’s project applications was part of the aforementioned lawsuit regarding the recreational easement area.  For instance, Mr. Harrop was not a party to that decision. In the case that was just referenced where it was determined that the applicants own to the low water mark, Mr. Harrop did intervene.  Included in Mr. Cunningham’s submittals is a court order dated June 12, 2014.  This is the order essentially denying Mr. Harrop’s motion to set aside a default judgement against him.  The final page of Mr. Cunningham’s submittals is a second order dated April 23, 2015 where the court ordered that Mr. Harrop can amend his complaint, but that if he doesn’t amend his complaint to join necessary parties then the complaint will be dismissed without prejudice.  This document contains a note at the bottom of the page by the judge that the complaint was dismissed without prejudice on May 21, 2015 because Mr. Harrop did not amend his complaint.  The term without prejudice does mean that Mr. Harrop can bring his issue before the court again if he wants to, he just hasn’t.  Mr. Cunningham stated that his point is that there is no pending action to deal with his rights and that the court’s order still stands that the property is owned to the low water mark.  Mr. Cunningham further stated that with respect to the rights of potential others, he saw at least one deed where Knapp Price granted some land and said something similar as “subject to the rights of the citizens of Sebago,” or something like that, to make use of this area.  Mr. Cunningham said this is a nice thought but it doesn’t work and he proceeded to explain why this can’t be done.  

Mr. Cunningham also pointed out that there has been reference to the sections of the ordinance that limit certain things that happen in this area and the ordinance section deals with the expansion of non-conforming uses.  This doesn’t apply to this situation because nothing about this application constitutes the expansion of a non-conforming use because a marina is not a non-conforming use.  A marina is a conforming use and the applicants are not asking to expand their use.  Therefore that section of the ordinance simply has no application.  

Mr. Cunningham stated that he is aware of the fact that a petition has been circulating around town and that people are concerned about the swimmers in this area which is perfectly understandable.  But he thinks there are some things that need to be considered.  There are no preset limits on how close swimmers can be to a dock or vice versa.  If there were, the current use of this beach easement area would not be allowed because there is in fact a dock more or less in the middle of it which is used.  That is where the swimmers, are within the allowed easement area under the court order, and boats come to and from that dock regularly.   Mr. Cunningham said that we all know that just as public streets can be shared between motor vehicles and pedestrians the waters can also be shared between boaters and swimmers as long as everyone is respectful to one another.  However, he pointed out that pursuant to their order from the Department of Environmental Protection they propose to have a line of buoys coming out from the end of their dock so that any boats coming to their facility will be restricted, and physically prevented, from going over to the side where the swimmers will be located.  This situation is not unique to just this location on Sebago Lake.  There are many other locations on the lake where boaters and swimmers coexist with one another.  

        Sam Minervino reviewed the current use of the right-of-way, the dock that straddles the two properties and the current marina operations.  He stated that the proposed relocation of the boat launch/ramp and dock will be a safer situation.  It will allow vehicles to safely access the property to launch a boat and then exit onto the roadway.  It will also add extra protection in separating boats and swimmers than what currently exists.  Mike Gotto answered questions from the Board regarding this matter.  

        Jim Keltos read aloud a prepared statement to the Board and audience members regarding his concerns about this proposed project.  His statement also referenced the petition that was submitted this morning and included the comment that there are other property owners that are not registered voters (of the town) who were unable to sign this petition, but agree with its content.  The third item in his statement was to reference the fact that he is also submitting a letter from Steve Titcomb, CRS (Realtor – The Maine Real Estate Network/Jordan Rentals) regarding this matter.  Mr. Keltos proceeded to read aloud Mr. Titcomb’s letter.  Both Mr. Keltos’ statement and Mr. Titcomb’s letter are hereby considered part of the record and will be included in the Planning Board file for this proposed project.  

        Mike Gotto answered questions from the audience ranging from explaining the purpose for relocating the boat launch/ramp, the design and construction details, and the existing safety concerns/issues. It was noted that this would also consolidate the properties involved instead of having the marina operations spread over several none conjoining lots which would enhance safety by now having all marina operations in one general location.  

        Attorney Brad Morin stated that he represents Mr. Keltos and several other interested parties regarding this matter.  Mr. Morin asked for clarification on which ordinance’s standards would apply to this proposed project.  There was quite a bit of discussion on this matter with Mr. Morin, Code Enforcement Officer, Brandon Woolley, Mike Gotto, and Paul White participating in this discussion in an effort to clarify the Board’s review process of the application for this proposed project.  

Mr. Morin made reference to a previous court judgement from July 2012 and stated that the safety issue was brought up then as well.  At that time a “barge” style dock structure which had a large gangway attached to it was located in the easement area which the town had ordered removed because it was a commercial activity that did not have a permit.  As part of the stipulated judgement the applicant, Long Beach LLC, had agreed to remove the anchors that had been there for the “barge” which had already been removed and some moorings that interfered with the easement area.  Mr. Morin’s argument was that that structure, or item, that was there was an unreasonable interference and should be seen on the applicants’ part, that it would interfere with their, the defendants, use of the area.  He also explained that Mr. Minervino previously stated (as noted in Mr. Morin’s submittal) that the “barge” was located where it was, (which was approximately fifteen feet away from the easement property line), because it was not safe to have it located closer to the existing gas pump dock (which was located approximately eighty-five feet away from the location of the “barge”).  Mr. Morin stated that this application is now saying that the proposed location of the dock which will be twenty feet away from the “neighborhood dock” is not going to be unsafe which presents and inconsistency.  Mr. Morin submitted a copy of this court order which is hereby considered part of the record and will be included in the Planning Board file for this project.  

        Mr. Morin presented his legal argument which disputed the point that the boat launch/ramp facility is not part of the marina operations because it is currently located on a separate lot.  His point is that a commercial use is not allowed in a limited residential zone with the exceptions of commercial uses listed otherwise on the table such as marinas and campgrounds that are allowed in the respective district.  He stated that a boat launching facility is not listed on the table so his argument is that it does fall under the exceptions category.  In response, it was argued that a boat launching facility is an accessory service provided by a marina.  Mr. Cunningham pointed out that what is being overlooked is what Mr. Gotto said from the beginning, which is that the application is proposing to consolidate the marina activities onto this land.  The fact is that there was a marina located on lot 102, whether it is called a boat launch or a marina; this is where it has been located.  It doesn’t mean that it can’t be moved over to another lot because it is a permitted use.  If they were asking to relocate a non-conforming use it would not be allowed.  It was noted that you don’t usually see a marina that does not have a boat launch facility, however it is possible to have a boat launch facility without being part of a marina such as the town’s boat ramp located at the town beach.  Mr. Cunningham also pointed out that the existing boat launch/ramp will be removed from the separate lot and will now be located on the lot directly abutting the existing marina lot which means that they will now be located on two contiguous lots where it is a permitted activity.  Brandon Woolley stated that the town’s Comprehensive Plan supports this type of situation in which it seeks to combine similar existing uses such as a boat launch and marina, if you draw a distinction between the two.  There was a lengthy discussion on this matter.  

        Mr. Harrop stated that he owns a piece of property located at 10 Intervale Street.  He spoke to the Board regarding his concern about the matter of non-conformance and his deeded rights.  This information is detailed in his submitted e-mail correspondence to the Planning Board dated January 27, 2017 which is hereby considered a part of the record and is included in the Planning Board file for this proposed project.  There was some discussion on this matter with the Board determining that the issue of non-conformance that Mr. Harrop sites falls under the Land Use Ordinance and it is the Shoreland Zoning Ordinance that applies to the application for this proposed project.  As to the matter of his deeded rights it was determined that this is a civil matter that would need to be addressed by a court of law.  

        Paul White pointed out that it primarily comes down to whether this constitutes and expansion of use and whether the dock, as proposed, creates a safety issue related to the recreation area.                       
        The Board heard further comments from the audience members in regards to safety concerns and the fact that several property owners are unable to vote on matters such as the development of town ordinances, (due to the fact that they are not registered voters of the town since their primary residences are in other States), so they must rely on the town’s Boards to protect their interests by properly enforcing the town’s ordinances.
The Public Hearing was closed at 8:50 p.m.

        Paul White called the regular meeting to order at 8:51 p.m.

III     Correspondence  

        Maureen Scanlon reported that the following correspondences were submitted to the Planning Board in their meeting information packets prior to this meeting.

  • A copy of an e-mail correspondence dated January 27, 2017 from Bill Harrop regarding the Public Hearing and agenda item.  
  • A copy of the “Winter 2017 Sebago Lake Watershed News” from the Portland Water District.  
  • A letter dated January 18, 2017 from Daniel Braverman regarding the proposed project discussed previously at the January 10, 2017 meeting.  (Site Plan Review – Property owned by The Beeches at Sebago LLC – Applicant is Daniel Braverman – Map 19, Lot 10A)
(NOTE: Although this proposed project was not on the agenda for the February 14th meeting, due to the content of the correspondence, Planning Board Chairman Paul White instructed Maureen Scanlon to include Mr. Braverman’s letter in the meeting information packet for the Board’s review before the next meeting that addresses Mr. Braverman’s project.)

        Maureen Scanlon reported that the following correspondence was distributed to the Planning Board members at the start of this meeting.

  • A copy of a letter dated January 25, 2017 from George Sawyer, PLS of Sawyer Engineering & Surveying, Inc. This letter was to advise the Town of Sebago that the “Revised Subdivision Plan of Logan Woods Route 107 in Sebago, Maine Record Owners Evelyn Jordan and Jason Jordan” was recorded at the Cumberland County Registry of Deeds in Plan Book 217 Page 19 on January 18, 2017.    
  • A copy of a letter dated February 4, 2017 (and received on February 8, 2017 after the Planning Board’s meeting information packets were mailed out) from Roger and Gwen Mercaldi Jr. regarding the Public Hearing and agenda item.
  • A petition was submitted on the morning of February 14, 2017 that read as follows:
“To the Municipal Officers of the Town of Sebago Maine:

We, the undersigned voters of the Town of Sebago qualified to vote in all town affairs, hereby request that you Reject and Not Approve the Relocation of the Long Beach Marina Boat Launch and Expansion of Long Beach Marina in Sebago Maine (Reference Lots 99 and 100 at or near Route 114 and Intervale Street – see Presentation Graphic prepared for Sam & Jan Minervino by Consultants, Inc.) – see attached documentation.”  
(NOTE: Maureen Scanlon forgot to mention the receipt of this petition during this portion of the meeting; however, it was recognized by the Planning Board during the course of the meeting.)  

Maureen Scanlon reported that the following documentation was distributed to the Planning Board members at the start of this meeting.  

  • A copy of the last page of the Public Hearing’s Abutter Notification List recognizing the fact that an Abutter’s Notice was sent to William E. Harrop III.  This was mailed via regular (not certified) mail on 1/27/2017 per Code Enforcement Officer, Brandon Woolley’s direction.  
Copies of the aforementioned documentation and correspondences will be included in the Planning Board file for the referenced proposed project.  

IV      Open to Public Questions
No questions were asked.

V       Review of Minutes (January 10, 2017)

        Joe McMahon made a motion to approve the minutes from January 10, 2017 as presented.  It was seconded by Jim Jansz.  Motion carried with all in favor.  

VI      Old Business    

  • Site Plan Review – Property located in a Shoreland Zone                         (Property owned by Long Beach LLC) (Applicants are Samuel & Jan Minervino) – Map 19, Lots 99 & 100
Paul White asked the Board if anyone has any thoughts or comments as to the question of whether or not this constitutes and an expansion of use.  Tina Vanasse stated that she does not see it as an expansion because the marina will still be providing the same service to the public that it already is providing.  Brandon Woolley mentioned that the town no longer has a dock ordinance which means that it does not regulate docks.  By definition, an expansion of use would be the addition of another service which is not being proposed.  It is a consolidation of services by relocating an existing service that is being provided.  Brandon Woolley stated that the ordinance does allow for the movement of a structure that is an allowable use and it also allows for the movement of a non-conforming situation, which as he pointed out, this is not (a non-confirming situation), as long as it does not become more non-conforming.  

The Board proceeded to discuss the matter of safety concerns.  Brandon Woolley explained that he checked into the safety records of the two other boat launch/ramp locations in town and was advised that there has not been any incidents in either location where boaters and swimmers are in close proximity to one another.  Joe McMahon pointed out that the report from the Department of Environmental Protection references the fact that the current configuration is unsafe.  They are specifically referring to the current configuration of backing the boats out onto Route 114 (Sebago Road) as being an unsafe operation.  They are actually indicating that what is being proposed is a safer situation.  The Board agreed that the DEP’s suggested buoy system that would be placed horizontally from the end of the proposed dock would help to deter any boats from entering into the swimming area.  No boats will be allowed on this side of the dock, only on the boat launch/ramp side.  Brandon Woolley suggested that as far as safety goes wouldn’t it be easier (for the marina personnel) to monitor the boat launching procedures (and all other marina associated activities) in the proposed situation by their being located on adjoining (contiguous) lots than in the existing separate lots situation.

Joe McMahon stated that if the Board decides to permit this to occur that it should be stipulated that the other lot with the existing boat launch/ramp may no longer be used for commercial purposes.  They may still use the property for their own use, but not as part of the business.

Paul White proceeded to review the aforementioned petition that was submitted this morning to the Planning Board and the concerns expressed within it.  

Paul White asked Brandon Woolley for his opinion of the proposal.  Brandon responded that he thinks that overall it is an improvement over the current situation.  Paul then asked Brandon what his opinion is regarding the question of expansion of use.  Brandon responded that he does not believe it is an expansion of use.  He firmly believes that the use of a boat launch and a marina are considered similar uses which is allowed.  Paul agreed with this statement and stated that based on the DEP’s letter he is prepared to vote which the other Board members agreed they were also ready to do.  

Tina Vanasse made a motion to accept the proposal (approve the project) as stated to include the agreement that the property where the existing boat launch/ramp is located will be removed from commercial use.  It was seconded by Joe McMahon.  Motion carried with all in favor.  

  • CEO Updates
Nothing reported

  • Goal Setting Items
  • Voting Matrix (finalizing process)
No discussion

  • Review of Escrow Funds for “Outstanding” Subdivisions
No discussion  

VI      New Business

        There was none

VII     Adjournment

Tina Vanasse made a motion to adjourn at 9:26 p.m.  It was seconded by Joe McMahon.  Motion carried with all in favor.

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