Town of Gorham
December 17, 2001
PLANNING BOARD AGENDA MINUTES
LOCATION: Gorham High School Auditorium, 41 Morrill Avenue, Gorham, Maine
Members Present: Staff Present:
HAROLD GRANT, Chairman DEBORAH FOSSUM, Dir. of Planning & Zoning
N. A. MARTIN AARON SHIELDS, Planning Assistant
MICHAEL PARKER NATALIE BURNS, Esq., Town Atty. (arrived 7:25)
SUSAN ROBIE ESTHER PELLETIER, Acting Clerk of the Board
RICHARD SHIERS
DOUGLAS BOYCE (arrived 7:10)
Member Absent:
CLARK NEILY, Vice-Chair.
The Chairman called the meeting to order at 7:05 p.m. and introduced the agenda. The Acting
Clerk called the roll noting the absence of Mr. Neily.
1. APPROVAL OF MINUTES: NOVEMBER 19, 2001; DECEMBER 3, 2001
Richard Shiers MOVED and Michael Parker SECONDED A MOTION to table approval of the November 19, 2001 minutes until the first meeting in January. MOTION CARRIED 6-0 (Neily absent).
Michael Parker MOVED and N. A. Martin SECONDED A MOTION to accept the December 3, 2001, minutes with the following revisions:
1) Page 5, paragraph 6, delete the first sentence beginning, "Mr. Grant stated that…". 2) Page 5, paragraph 6, delete the second half of the 4th sentence, which reads "…and suggested that delaying installation of the South St. traffic signal might free up funds for utilities." 3) Page 5, paragraph 7, 6th sentence, delete the word "past" and replace with "pace of traffic".
MOTION CARRIED 6-0 (Neily absent). [7:05–7:20 PM]
2. PRELIMINARY SUBDIVISION PLAN – “SEBAGO GATEWAY” – off BARSTOW & WILSON ROADS – JOHN T. HAWKES
Request for preliminary approval of a 6-lot subdivision on 10 acres at the intersection of Barstow and Wilson Roads. Zoned SR; Map 90/Lot 3.003.
Tom Greer, Civil Engineer, presented revisions to the plan and additional submissions, including revised density calculations, larger lot layouts, a note on the drawing as a deed covenant for maintenance of the shared driveway between Lots 3 and 4, a conventional plan layout provided for comparison, a letter from the DEP granting approval for any of the wetland fills, and Army Corps permits for those wetland fills.
STAFF COMMENTS
Aaron Shields reviewed how the maximum allowable density of 6 units/lots had been calculated. Mr. Grant requested that the plan restrict the future construction of a duplex on Lot 6. The Assistant Planner concluded his summary of the agenda notes
PUBLIC COMMENT PERIOD: No comments offered.
BOARD DISCUSSION
Public Water
In reply to Mr. Martin, Mr. Greer stated that public water hookups are available along the frontage of lots on Barstow Road, but not on Wilson Road. Mr. Greer said that no new hydrants are proposed, there being an existing one off the end of Lot 5 and another one at the intersection, spaced 1000' apart, the standard for fire protection in the area. Mr. Martin asked staff if this is the first time that the density bonus has been allowed where water is not being provided for the entire development. Ms. Fossum stated that she could not recall another example, though it could have occurred in the 1980s. The Director of Planning explained that in the past, the developer has always elected to extend water to the full development. Mr. Martin stated that he is a little uncomfortable with allowing reduced frontages because the Code
refers to "the development", not a part of the development. Mr. Greer explained that the gain from having public water available is not a bonus in lots or in density, but the ability to reduce the width of Lots 1,2 and 3 from 200' of frontage to 150' so that these lots are better located on site. In response to Mr. Shiers, Mr. Greer stated that there would be a 2" water line back to Lot 5.
Driveway Construction
Mr. Shiers asked if the developer would be doing the work to meet DEP permitting through the floodplain to construct the driveways. Mr. Greer stated that the homebuilder would assume complete responsibility for construction of the driveways. Mr. Shiers replied that this is a concern for him as several driveways would be through wetlands and require DEP approval. Mr. Shiers was of the opinion that to make "Lots 3, 4 and 5 work, they should all go in together" so that the development of one lot does not negatively affect the other. Mr. Greer replied that the DEP has already provided a permit to cover the location of the driveways where they are. Mr. Greer explained that the developer could have gone through the subdivision process without obtaining DEP permits, but felt it would be better to have those permits already
to go. Mr. Shiers replied that his concerns are with leaving the responsibility of meeting the permit standards with the inexperienced homeowner, of having the customer "finish your subdivision". Mr. Shiers stated that his feelings about this were strong enough that he would be voting against the project until he felt comfortable with who would be doing the approx. 2 ½ acres of DEP alterations. Mr. Greer replied that the developer is not a homebuilder and has every right to subdivide the land and sell individual lots. Mr. Greer stated that normally the homeowner works out the location and construction of the driveway with the builder, the Public Works Director and the Code Enforcement Officer. Mr. Parker agreed with Mr. Shiers that there would need to be "a marriage of some sort between Lots 3 and 4", that the driveway would need to be constructed and an agreement in place before the lots are sold. The Town Planner noted that the developer would need to
contract with the Town agreeing to pay for the costs of outside engineer inspection during construction. Deb Fossum suggested that a bond could be established guaranteeing all the improvements to be made, to be released when the inspecting engineer is satisfied that the work has been completed. Aaron Shields recalled that the Review Engineer requested that the developer mark the wetlands and the buffer from the wetlands. Mr. Shields stated that this could be taken care of during Final Plan approval, along with establishing the performance guarantee. Mr. Shields suggested that Sheet C2 be recorded with the subdivision plan because of six or seven important notes. Mr. Grant stated his opinion that the developer should build the 20' x 140' driveway so that the first homeowner would not have to construct the other Lot's driveway. Mr. Shields replied that thee developer has already taken many steps to address this issue. Mr. Greer stated that the CEO would review all the permits from
the DEP, the survey and subdivision plan provided by the builder, and inspect construction of the driveways on Lots 3,4 and 5 as part of building in the floodplain. Douglas Boyce voiced his confidence that the staff can and will address all these items with the applicant and indicated that he has no problem moving forward.
Utilities
Mr. Martin asked Mr. Grant if the issue of overhead vs. underground utilities had been resolved. Mr. Grant stated his concern that on the section of Barstow Rd. where the lots are fronting, the utility poles for telephone and possibly cable TV are on the opposite side of the road, but there is no power line on those poles. Mr. Grant said that the Board had asked the applicant to come back with a cost estimate of putting the utilities underground. Mr. Greer stated that the applicant would be going with overhead power as it is allowed under the ordinance, no new road is being built, there are already poles there, and all of that neighborhood has overhead power in keeping with the rural character of the area. Mr. Grant replied that the telephone poles are so far apart that the power company would probably have to add poles. Mr.
Greer agreed that additional taller poles would likely be installed. Mr. Grant noted that all the lines would have to cross the street, and again stated that the Board, in keeping with past policy, had asked for a cost estimate. Mr. Greer replied that the applicant would not be getting that estimate for financial reasons and as it is not required by the ordinance. Mr. Grant answered that the Board has a right to ask for a comparison, and that many times the applicant has agreed to going with underground utilities after receiving a lower than expected cost estimate.
Street Frontage
Susan Robie noted that members of the public had objected to the 150' street frontage bonus, and asked if there was any advantage to keeping Lot 6 in the subdivision. Mr. Greer replied that the sale of Lot 6 would be "a huge financial gain". Mrs. Robie stated her concern about setting a precedent for approving a subdivision not completely serviced by public water. Mr. Greer answered that the developer could out sale Lot 6 before coming to the Board, but thought it would be prudent to let the Board know its intentions up front. Mr. Greer stated that after reviewing the layout of the subdivision and the cost to extend the water up to Lot 6, the developer decided that a well would be most appropriate on Lot 6. Mr. Greer added that the bonus calculations were done only on the 5 lots.
Driveway Construction
Richard Shiers stated that three of the subdivision lots are nonconforming house lots. Mr. Shiers continued that they would only become conforming after a customer buys them and does the alterations to get across the flood plains according to the DEP permits. Mr. Shiers asked how the Town could maintain consistency if homeowners do the work that has been engineered for a subdivision. Mr. Grant agreed. Aaron Shields replied that putting all the safeguards in place should be sufficient, unless the Board wants to require the developer to construct all the driveways and sell them as part of a package. Deb Fossum agreed that an option would be to require the developer to make these improvements before the lots are sold and put a guarantee in place that they will be made per the plan, verifiable by an outside engineer. Mr. Greer
asked if the Town has ever made a developer build a driveway on any other project. Ms. Fossum replied that there are a number of subdivisions where special requirements of the developer have been made to obtain the required DEP permits, do the fill work in conjunction with roadway construction, and create shared driveways in particular locations. Douglas Boyce asked Mr. Greer which permits the applicant has already received vs. permits the owner or contractor would need to obtain as part of developing these lots. Mr. Greer replied that the applicant has obtained the NRPA permit for installing the driveway on Lots 3 and 4 and on Lot 5. Mr. Greer stated that the only permit the owner or builder would have to obtain would be a special building permit for building in a flood plain through the Code Enforcement Office. Mr. Boyce suggested the possibility that the applicant could sell the subdivision to a builder with the where-with-all to do the requisite fill work for the driveways. Mr.
Boyce agreed that there is more potential burden placed upon the owners of the properties than is typical, but that in his opinion, the appropriate level of engineering, permitting and protection has gone into the plan and that he would have no problem moving the subdivision forward. Michael Parker asked Mr. Shields to clarify how the shared driveway would be constructed independently of the other lot owner. Mr. Greer stated that the first homeowner may have to pay a premium in having to bring more fill in, but that the second person would share the cost of the construction and maintenance of the driveway as per the deed covenant.
Street Frontage
N. A. Martin asked staff what the frontage requirements are for one lot sold in the Suburban Residential District. Deb Fossum replied that it would be 200' for a lot that is not part of subdivision development, and that an individual lot could not get a lot size reduction for utilizing public water or sewer. Ms. Fossum then read from the Code, noting that "development" in the past has been interpreted to mean a subdivision. Mr. Shields explained that the reduced 150' frontage had been proposed only for Lots 1-5 in this Sebago Gateway development because those are the lots that would be hooking up to public utilities. Mr. Martin stated that to his understanding, the bonus of reduced frontages and additional lots has always been granted to developers who have extended public water and sewer lines for the benefit of
many. Mr. Martin continued that in this case, where public utilities are already available and where the developer does not plan to provide public water for Lot 6, he would be uncomfortable with granting the bonus. Michael Parker was of the opinion that less frontage is reasonable when both a septic system and a well are not located on the same property. Mr. Grant suggested that Mr. Martin and Mr. Parker may be talking about two different ideas.
The Chairman stated that the applicant is requesting preliminary plan approval. Mr. Grant said he would not be voting for this approval as he had asked for a cost estimate for underground utilities, which was not provided.
Douglas Boyce MOVED and Michael Parker SECONDED A MOTION to grant John T. Hawkes' request for preliminary approval of the 6-lot Sebago Gateway Subdivision on 15.64 acres off Barstow and Wilson Roads. MOTION DENIED 2–4 (Grant, Martin, Robie and Shiers against; Neily absent). [7:20–7:55 PM]
3. PRIVATE WAY PLAN – “NICOLES WAY” - off 160A DINGLEY SPRING ROAD – BRADEEN, GLORIA J. & ALLEN E.
A request for a 630’ private way to serve 2 lots off 160A Dingley Spring Road. Zoned SR; M77/L22
David St. Clair, Project Manager with Sebago Technics, presented the plan, stating that the necessary zoning variance was obtained for the setback reduction. Mr. St. Clair stated that existing trees would be removed and later replanted as a buffer. Mr. Grant clarified that the private way will serve two lots, but three units, and does meet all standards. Mr. Shields asked the Board if it would like to require that one of the driveway locations be eliminated. Mr. Grant indicated that he was OK with one part of the loop driveway becoming part of the private way while the other part remains as it is. There was no Board comment on this topic.
PUBLIC COMMENT PERIOD: No comments offered.
Michael Parker MOVED and Douglas Boyce SECONDED A MOTION to grant Allen and Gloria Bradeen's request for approval of Nicole's Way, a 630' private way to serve two lots off 160 A Dingley Spring Road, with conditions of approval as posted prior to the meeting and discussed with the applicant. MOTION CARRIED 6-0 (Neily absent). See attached Conditions of Approval. [7:55 - 8:00 PM]
4. PRE-APPLICATION CONFERENCE – 200 BURNHAM ROAD SUBDIVISION – RISBARA BROS. CONSTRUCTION, INC.
Request for a pre-application conference on a proposed 18-lot residential subdivision with 2 roads on 28 acres off 200 Burnham Road. Zoned R-MH; M1/L6.
Rocco Risbara, Pres., Risbara Bros. Construction, presented changes made to the original concept plan, including an increase from 14 lots to 18 lots on 60,000+ SF parcels based on preliminary soils tests. Mr. Risbara stated that the plan would feature wells and septic systems, public roads, underground power, and, with permission, an easement to use the existing fire pond. Mr. Risbara stated that while the site is basically high, dry and wooded, there are a couple of small wetland areas that will have a small impact to the road and which will drain into the fire pond. Mr. Risbara noted that Nancy St. Clair of Sebago Technics was present and available to answer any technical questions.
The Planning Director stated that the Board held a site walk on Saturday, December 15th, walking both of the proposed roadways. Ms. Fossum recalled that the Board discussed options available for extending a right-of-way to adjacent undeveloped land such that it would not negatively impact an abutter with limited frontage who was present and spoke at the site walk. Ms. Fossum noted that she had provided the Board with a copy of the tax map to review these options. Mrs. Robie asked what the long narrow parcel is shown between Lots 7 and 8 on Tax Map 1, and suggested that it may be a right-of-way already provided. Ms. Fossum stated that the Planning Department would look into it further, as well as the status of Kenny Road, per Mrs. Robie's suggestion. Mr. Grant asked the applicant to work with Planning Staff to determine an
appropriate location for a right-of-way extension.
PUBLIC COMMENT PERIOD: No comments offered.
Richard Shiers suggested that the "spike-shaped" Lot 13 be reconfigured to make this lot more usable for the homeowner. Mr. Risbara agreed to give the area more attention. Douglas Boyce asked that the same consideration be given to Lot 7, which is in competition with the lowland area and hammerhead nearby. Mr. Risbara also agreed to reconfigure Lot 7. Douglas Boyce asked the applicant to show building envelopes and potential lot layouts with setbacks. Mr. Risbara replied that that information would be on the next plan. Mr. Risbara noted that after meeting with the Walshes, abutters to Lot 18, Risbara Bros. Construction has agreed to plant 4-6 pine trees to serve as a buffer, which will also be shown on the plan. [8:00–8:15 PM]
Stretch Break 8:15 to 8:25 PM
5. PRELIMINARY SUBDIVISION – “COUNTRY FIELDS” - off WOOD ROAD – HOLMAN DEVELOPMENT CORP.
Request for Preliminary Plan approval of a 5-lot subdivision with a private way on 13.86 acres off Wood Road. Zoned Rural (R); M54/L9.004 & 9.005.
Les Berry, Engineer from BH2M, briefly reviewed the application history of the project. Mr. Berry presented a plan with colored outlines showing (1) the entire parcel owned by Randy Legere prior to June 3, 1999, (2) the parcel conveyed to the Salafias on said date, and (3) the proposed 5-lot subdivision. Mr. Berry then turned the presentation over to legal counsel to continue the discussion with the Board on "the gift lot".
Gary Vogel, Esq., Lambert Coffin Attorneys at Law, referred to his letter to the Board dated December 17, 2001. Mr. Vogel identified two issues: (1) whether the Salafias' lot can legally be treated as a gift lot or as an otherwise exempt lot; and (2) what impact this lot may have upon the Rural Land Management System (here after known as RLMS) calculations. Mr. Vogel noted that since Holman Development was not party to the conveyance to Mark and Renee Salafias, Mark Salafias was present to explain the gift transaction as Mr. Legere was not readily available.
Mark Salafia stated that after the loan he had made to Randy Legere was paid off, he released the mortgage on Legere Builders Inc.'s Wood Road parcel prior to its being gifted back to him. Mr. Salafia stated that there was no funny business going on, that he and his wife had expressed an interest in the property all along, and perhaps even building on it. Mr. Vogel addressed the issue of the discharge of the mortgage on June 2, 1999. Mr. Vogel asked Mr. Salafia to explain the promissory note. Mr. Salafia stated that Mr. Legere paid the loan back in full, which was then deposited into their account. Mr. Salafia passed the promissory note and mortgage discharge to the Board to review. Mr. Vogel referred to a 10/25/01 letter from Douglas Title Company to Bill Dale, Town Attorney, asking Mr. Salafia if the history of the
transactions recounted in this letter appear to be accurate. Mr. Salafia replied that it was a good review of what had occurred. Mr. Vogel asked Mr. Salafia whether he has any obligation to Robert Conley as a result of Mr. Conley's holding the mortgage to Mr. Legere. Mr. Salafia answered that he is making no payments and that he has no understanding of the nature of the mortgage on that property, that Mr. Conley has not contacted him.
Mr. Grant invited Natalie Burns, Town Attorney, to interject with questions or comments at any time. Ms. Burns asked Mr. Salafia if he was aware of what Mr. Legere's obligations are under his mortgage held by Mr. Conley. Mr. Salafia replied that he was not. Ms. Burns asked if, at the time of acquiring the parcel, the deed did state that the transfer was subject to that mortgage. Mr. Salafia said that he did not know the answer. Ms. Burns stated that she would like to follow up with Mr. Vogel at the appropriate time.
Michael Parker asked Mr. Salafia why the note was not paid off until the day before the transfer, when the agreement was to pay it off within two years. Mr. Salafia replied that he would guess that Mr. Legere was simply busy with several other projects, but that he was thankful Mr. Legere was able to keep his promise. Mr. Vogel stated that this loan was in keeping with the borrowing history the Salafias have with Mr. Legere. Mr. Salafia stated that he has invested with Mr. Legere in the past with financial support. Mr. Salafia said that if Mr. Legere was late over the balloon date, he would give them 30% interest, in this case $13,000 for a $10,000 loan.
Ms. Burns asked Mr. Salafia what his intentions are concerning the gift lot he received in 1999. Mr. Salafia replied that they visit the property occasionally, but that not much thought has gone into use of the land. Mrs. Robie asked Mr. Salafia if a gift tax had been paid in 1999. Mr. Salafia stated that if it were paid, his wife would have taken care of it. Mrs. Robie asked if Mr. Legere had gifted the Salafias any other parcels of land. Mr. Salafia answered, no. Mr. Vogel stated that a gift tax is payable by the donor, and that in 1999 Congress was considering a $675,000 exemption, rising to $1 million this year. Mr. Vogel said that anyone who makes a gift of a small property is not required to file if the property value is under $25,000 or $40,000 if gifted to two individuals. Mr. Vogel stated that his understanding is
that Mr. Conley was owed money by Randy Legere and so the Wood Road property was used as collateral, and though a little out of the ordinary, does not affect the gift nature of this transaction or at least, does not suggest that this was anything other than a lawful conveyance to the Salafias. Mr. Vogel stated that as 1 lot can be created every 5 years without being subject to subdivision approval, a title attorney has certified that the conveyance to Craig Holman is also legal. Mr. Vogel reviewed the chronology of lot conveyance transactions as outlined in his letter. Mr. Vogel stated that the Potter lot, which is already built upon, has been included in the subdivision (optionally Lot 6) and the Rural Land Management Calculations as the first conveyance triggering municipal subdivision review and approval. Mr. Martin asked if the Potter lot was taken out of Parcel 1 in the deed description and if a new deed has been written up since the Potter lot was taken out. Mr. Berry stated
referred to the plan and stated that the deed is the same.
Mr. Vogel stated that the term "site" as used in the Rural Land Management System Ordinance is not defined. Mr. Vogel argued that according to state subdivision statutes and referring to the 1994 Maine Superior Court ruling, the term "site" should be applied only to the proposed Country Fields Subdivision, including the Potter lot. Mr. Vogel stated that the Salafia lot is exempt either as a gift lot or as the first conveyance in five years. Mr. Vogel stated that the applicant is not trying to unduly or unlawfully avoid the RLMS calculations and that the intent is to keep the land in the family, arguing that Holman Development Company does not have any interest in the Salafia lot. Mr. Vogel referred the Board to his proposed findings and conclusions
BOARD DISCUSSION
Douglas Boyce asked staff and counsel if they had sufficient time to review the material submitted earlier in the day to give an appropriate level of advice to the Board. Ms. Burns replied that after reviewing Mr. Vogel's materials and several discussions with the Planning Director, she was prepared with legal advice and assured the Board that they could begin to proceed. Mr. Boyce asked Ms. Burns for her legal opinion. Ms. Burns stated that in her opinion the Board does need to make a factual finding on whether the transfer to the Salafias was a legitimate gift lot or the first out conveyance and exempt from subdivision review at the time the transfer was made, because if it was the latter, it should now be included in the RLMS calculations. Ms. Burns stated that she was present to help the Board with procedures and to
provide legal advice, but that the applicant and members of the public would be responsible for presenting any facts.
Mr. Grant asked staff if the RLMS calculations for the Salafia lot are available. The Planning Director replied that she was not aware of any calculations having been done for the entire parcel. Ms. Fossum recalled that Randy Legere proposed a subdivision on this site in 1992/93 and did have some soils work done by Al Frick Assoc., but that Mr. Legere at that time had proposed to deed off 20+/- acres as a conservation easement which would not have been included in RLMS calculations. Ms. Fossum stated that the soils scientist might have the information on file.
Mr. Martin asked Ms. Burns if she agreed that when the Holmans received a deed, the 2 deeds do not constitute a subdivision. Ms. Burns agreed because the deeds were made to the same individual for contiguous parcels.
Mr. Parker asked what the effect would be on the development to include the Salafia property in the calculations vs. exempting it. Ms. Fossum replied that a large portion of the soils on the gift lot are very poor, which would change the density, potentially, of the subdivision, but that without the soils work being done, she could not say for certain. Mr. Grant added that lot sizes would likely increase.
Mrs. Robie asked who bears the burden of proof as to whether it is a gift lot. Ms. Burns replied that the applicant bears the burden of proof for all questions concerning the subdivision. Mrs. Robie asked what the Board would be required to do if the evidence was insufficient to determine intent. Ms. Burns answered that the Board could ask for any additional information it would find helpful or that, if the Board felt that there was no additional info that would help, it could find against the applicant due to a failure by the applicant to meet the burden of proof.
Douglas Boyce stated that he was not able to be at a site walk on site this summer. Mr. Boyce stated that after reviewing the plan and listening to commentary, however, the physical orientation and geometry of the Salafia lot indicates that it was conveyed to remove the less desirable land from the total parcel and the RLMS calculations, making the balance more marketable as subdivideable land. Mr. Boyce said that he would like to hear from the applicant on this issue, not so much as to whether the parcel was a gift, but addressing why that particular shape was conveyed away from the balance under an unusual set of circumstances. Mr. Boyce agreed with Counsel's interpretation of the State Subdivision Ordinance where it says that the “municipality…shall consider the existence of the previously created lot or
lots in reviewing a proposed subdivision created by a subsequent dividing."
Harold Grant noted the easement for subsurface sewerage disposal on Lot 1, stating that the disposal appears to be on the Hussey lot. Mike Wing responded that he has been living on the property abutting Lot 1 to the east for 14 years, and that the leach bed is 450' from his house, pumping uphill at an elevation of 34' onto the Hussey property. Mr. Grant stated that this confirms his impression of the area being a questionable piece of land for development.
Richard Shiers stated that in trying to determine whether the Salafia parcel is really a gift lot, he did not feel at this point that there has simply been an attempt to circumvent the RLMS calculations, but that he would like receive more information from the public. Mr. Martin suggested that the Salafia lot might have been configured during a once attempted subdivision application that never went anywhere.
Mr. Vogel explained that Mr. Legere had legally tried to structure the development of the land to maximize its use. Mr. Vogel stated that after looking at the soils on the property, Mr. Legere was left with a parcel difficult for development and so gifted it as a house lot for someone in his family. Mr. Vogel stated that test pits have been done showing soils suitable for a house and one septic system on the Salafia lot. Mr. Vogel stated that if the Town had wanted to include the Salafia lot in its RLMS calculations, it should have defined in its Ordinance what a "site" is. Mr. Vogel explained that Mr. Holman purchased the property with the intent of developing it and that he would not be able to access the Salafia property now to do the calculations. Mr. Vogel argued with the Town Attorney that it does not make
sense to treat a gift lot differently from any other exempt lot. Mr. Vogel suggested that the Town's consideration of the Salafia parcel should be limited to whether there is a possibility of any future development on the land. Mr. Vogel reiterated that there had been no attempt to circumvent the RLMS calculations.
PUBLIC COMMENT [9:40 PM]
Norman Justice Jr. stated that he would attempt to clear up some confusion using his history of involvement with the application of the RLMS. Mr. Justice recalled that the Planning Board ignored the Town Attorney's advice in 1994, leading to a Superior Court decision ruling that the RLMS calculations applied to an entire parcel. Mr. Justice stated that he agrees with Ms. Burns' interpretation of the ordinance.
Mr. Justice indicated that he feels passionately about the RLMS, saying it is meant to preserve the rural character of this community. Mr. Justice said that he owns a 225 year-old active farm with 60-90 head of Black Angus cattle. Mr. Justice stated that he is often burdened with conflicts associated with residential development, including 4-wheelers knocking down his fences and children using BB and pellet guns on his cattle.
Mr. Justice stated that when the contested Estes subdivision proposal first came before the Planning Board in 1993, Mr. Legere submitted a similar development application for his Wood Road property, only to withdraw it later due to the aforementioned 1994 Superior Court decision. Mr. Justice said that at the time of Mr. Legere's application, the 9-lot proposal had been reduced to 4 lots due to the extremely poor soils. Mr. Justice suggested that if the RLMS calculations were to include the Salafia lot, the lot sizes would increase to 3-4 acres and the number of lots would decrease.
Mr. Justice reminded the Board that Town Attorney Bill Dale has also provided an opinion stating that there is reasonable doubt as to the credibility of the gift lot, particularly because of the mortgage that Randy Legere continues to hold on it, and that as Ms. Burns stated, the burden of proof rests with the applicant. Mr. Justice asked that Mr. Legere provide a sworn affidavit indicating the true intent of the conveyance. Mr. Justice stated that to his understanding, any gift over $10,000 needs to be recorded, and that he believed Mr. Vogel had referred to the inheritance tax figures and not reportable gift tax amounts. Mr. Justice noted that Maine Realty, owned by Randy Legere, is marketing the lots for the proposed subdivision. Mr. Justice also pointed out that the nullified May 2000 deed to Mitchell Holman referred to
the "Legere Holman development".
Mr. Justice asked the Board to not repeat the travesty that the Town committed seven years ago, asking members to listen to the Town Attorney's advice and to direct the burden of proof away from the abutters toward the applicant. Mr. Justice said that there seems to be strong evidence that Mr. Legere was trying to avoid provisions of the RLMS.
In response to Mr. Martin, Mr. Justice stated that all the property transfers have occurred within the five-year window. Mr. Justice noted that his father, a Planning Board member in the 1980s, told him that the Board had also asked the Rickers to bring in a complete subdivision proposal at that time. Mr. Justice predicted that 1-3 lots could be carved out of the Salafia lot in the future if it is not included in the calculations at this time. In response to Mr. Martin, Mr. Justice clarified where his property is located, using Tax Map 54.
Mr. Parker asked the applicant to find out more about the ramifications of the mortgage that was attached to his property.
Mike Wing, 104 Wood Road, stated that he was not aware that the Salafia lot was gifted in 1999 based on his observations that Mr. Legere still has personal property on the parcel and that as late as September of this year, Mr. Legere spent a whole weekend staking out property lines. Mr. Wing stated that the parcel had been considered for a zoning change to Modular Housing in the early 1990s, but immediately taken off the table due to poor soil conditions. Mr. Wing also questioned why, if the whole property was presented in 1993 and not approved, why now a smaller area with a proposed higher density is being considered. Mr. Wing asked what provisions would be made to prevent future development on the Salafia lot. Mr. Wing noted that the land is very low on poor soils with stagnant ponds, tributaries and a stream, which could
become an environmental problem. Mr. Wing pointed out that it took forty test pits to find a suitable site for his own leach bed on the Hussey lot. Mr. Wing stated that he supported Mr. Justice's presentation
Craig Holman, the developer, stated that he has a business relationship with Mr. Legere but that they are not doing this project together. Mr. Holman noted that he has not spoken with Mr. Legere in over a year and that he had never met the Salafias prior to this application.
Linda Hussey pointed out that due to the location of her property, she would be the most affected by the subdivision. Ms. Hussey stated that while Mr. Holman seems like an honorable developer, she would agree with Mr. Justice about preserving the rural character of the area. Ms. Hussey noted that it is always wet at the rear her property due to a stream running toward the Wing's house.
BOARD DISCUSSION
Ms. Burns reiterated her advice for Mr. Boyce and Mr. Parker that the Board needs to first decide whether the Salafia lot is a legitimate gift lot or whether there has been an attempt to avoid doing the RLMS calculations as a part of subdivision review. In response to Mr. Grant, Ms. Burns stated that the Board might have some more factual questions regarding the mortgage held by Mr. Conley. Ms. Burns said that her only piece of additional factual evidence was that the mortgage between Mr. Conley and Mr. Legere made shortly before the gift transfer has not yet been released.
Mr. Martin stated that in a 9/30/89 letter to the Town Planner, it would seem that Town Attorney Bill Dale supports gifting a piece of land to avoid the RLMS calculations. Attorney Burns explained that a later opinion of Attorney Dale's, and most importantly the 1994 Superior Court decision, conflicts with the views expressed in that letter and so overrides the opinion in the first letter. Mr. Shiers read from an 8/29/01 letter from Attorney Dale that would seem to repeat the first opinion. Ms. Burns replied that Mr. Dale explains himself later in the letter by saying that this case is missing other pieces of factual information, which would help to determine if Mr. Legere's sole intent was to avoid RLMS review. Ms. Burns stated that at one time developers gave easements to the State of Maine frequently to avoid MDEP
subdivision review. Ms. Burns explained that the Gorham statute does require the Board to consider the intent of conveying a parcel to determine if it was simply to avoid subdivision review, and if it was, they must be brought back to the Town for subdivision review. Mr. Parker asked Ms. Burns for clarification on whether it is legal to gift land and avoid RLMS review to enhance the remaining parcel. Ms. Burns answered that it is legal to make a gift, but that it is not legal to make a gift if the intent of the gift is to avoid subdivision review for any reason.
Mr. Grant asked the Planning Director whether the issues raised by Attorney Dale in his 9/24/01 e-mail to her had been addressed. Ms. Fossum replied that a sworn affidavit and a copy of the IRS gift tax form have not been provided. Ms. Fossum said that while the applicant had just explained the promissory note, no explanation has yet been provided of the payoff of the closing statement. Ms. Burns noted that Attorney Lemieux drew up the first proposed with the applicant. Ms. Burns stated that while it is up to the Board to determine which evidence it would like, she would agree that there needs to be more evidence. Ms. Burns indicated that a gift tax form might not have been necessary for IRS purposes, but that she would need to know the value of the land.
Mr. Grant asked Ms. Burns if there were any legal questions that the Board should be asking or that she would ask if she were a Board member. Ms. Burns stated that to determine whether the transfer was a legitimate gift, she would want more information from Mr. Legere on (1) the circumstances and intent of the gift, (2) any RLMS calculations done earlier on this entire lot of land, and (3) why a mortgage to Mr. Conley was placed on the property before the gift was made and what control, if any, he still retains over the lot. Mr. Martin stated that determining intent of the gift is subjective and unclear due to the fact that Mr. Legere sold the remaining land rather than trying to develop it himself. Mr. Martin suggested that making a decision about intent goes beyond the scope of the Planning Board's responsibilities.
Mr. Parker again read from Mr. Dale's letter dated 8/29/01, 1st page, 2nd paragraph, stating that he understands Mr. Dale to say that if it is determined that the transfer was a legitimate gift, it does not have to be reviewed under the RLMS. Ms. Burns disagreed with Mr. Parker's interpretation of Mr. Dale's letter being that Mr. Dale continued for a page and half on his concerns about the intent of the transfer. Ms. Burns further explaining the purpose of the gift lot exemption under state subdivision law and noted that recent changes have been made to this provision in legislature to remove loopholes. Ms. Burns agreed that determining intent is very difficult, advising the Board to look at what has happened before for assistance. Deb Fossum explained that in the August 2001 letter, Mr. Dale seemed to familiarize the Board
with State Law on exemptions, but noted that the second page begins to raise questionable issues that remain unanswered.
Mr. Grant stated that because the Mr. Legere tried to develop the land in 1993, he would like to review the intent issue more carefully and would like to receive evidence on all the issues outlined by Attorney Burns. Mr. Boyce and Mrs. Robie agreed that they would like answers to Attorney Burns' proposed list of questions. Mrs. Robie noted that in the end, the Board would have to decide intent. Mrs. Robie stated that she would like to know more about the partial mortgage release from Mr. Salafia to Mr. Legere, referenced in a letter from Bill Dale dated 8/29/01, 2nd page, 3rd paragraph. Mr. Parker stated that it would help the applicant if Mr. Legere or his representatives were present at the next meeting to answer questions. Deb Fossum read from Bill Dale's letter to Attorney Lemieux, noting that to her understanding, the
applicant has not been able to gain Mr. Legere's cooperation in signing any affidavit. Mr. Boyce noted that he did not wish to mislead the applicant into believing that the submission of additional information would necessarily result in the Board’s affirmation of the conveyance as a “gift lot”. Mr. Boyce expressed his personal feelings that, through its configuration alone, this lot has the appearance of having been conveyed with the intent of avoiding the RLMS calculations. Mr. Grant asked Ms. Burns to summarize the list of 4 questions once again for the applicant. Mr. Parker asked whether the Board should assume if the questions are not answered, the Salafia lot should be included in the RLMS calculations. Ms. Burns replied that the Board should make its conclusion based on evidence provided and withheld. Mrs. Robie also asked for a detailed list summarizing all the land transfer transactions in that occurred during this period in June 1993.
Mr. Vogel stated that the applicant would hope to come back with enough information for the Board to determine intent, but asked that the Board not hold it against the applicant if Mr. Legere withholds certain information in an affidavit, for example, about whether a gift tax was filed. Mr. Grant replied that the Board will consider the whole picture and give the applicant fair consideration before making any decisions. [8:25–10:50 PM]
6. ADJOURNMENT
Michael Parker MOTIONED and Richard Shiers SECONDED A MOTION to adjourn; MOTION CARRIED 6-0 (Neily absent). [10:50 PM]
Respectfully submitted,
_____________________________
Esther J. Pelletier
Acting Clerk of the Board
December 17, 2001
R:\PLAN\PLBD\AGENDAS\MINUTES\PBMN02FY\PBMN121701wCOA.doc
3. PRIVATE WAY PLAN – “NICOLES WAY” - off 160A DINGLEY SPRING ROAD – BRADEEN, GLORIA J. & ALLEN E.
Approved
CONDITIONS OF APPROVAL
That this approval is dependent upon, and limited to, the proposals and plans contained in this application and supporting documents submitted and affirmed by the applicants and that any variation from the plans, proposals and supporting documents is subject to review and approval by the Planning Board, except for minor changes which the Director of Planning may approve;
That prior to the commencement of construction of the private way, the applicant is responsible for obtaining all required local, state and federal permits;
That prior to the commencement of construction of the private way, the applicant will establish with the Town of Gorham a performance guarantee for the required improvements to the paved apron;
That the applicant shall provide property line information and site information in auto-cad format to the Town Planner;
That prior to the commencement of construction of the private way, the applicant shall request a pre-construction meeting with the Town staff and the Town's inspecting engineer and will be responsible for the scheduling and coordination of all required inspections and testing during the construction of the Private Way;
That prior to issuance of any occupancy permits, all homes shall be properly numbered with the number visible from the street year round;
That the applicant shall be responsible for the cost and installation of all required street signs to be placed in locations approved by the Town Engineer and Police Chief;
That prior to the issuance of an occupancy permit for any of the undeveloped lots served by the private way, the Town’s Inspecting Engineer shall certify to the Code Enforcement Officer that the private way has been constructed in accordance with Chapter II, Section V, and the approved Private Way Plan; and
That the plan of the private way and the maintenance agreement shall be recorded in the Cumberland County Registry of Deeds within thirty (30) days of endorsement of the plan by the Planning Board; and that a receipt from the Cumberland County Registry of Deeds showing the date, and book and page number of the recorded plan and maintenance agreement shall be returned to the Town Planner along with a registry copy of the recorded maintenance agreement.
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