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Town of Gorham
July 1, 2002
PLANNING BOARD MINUTES
LOCATION: Gorham High School Auditorium, 41 Morrill Avenue, Gorham, Maine
Members Present: Staff Present:
HAROLD GRANT, CHAIRMAN DEBORAH FOSSUM, Dir. of Planning & Zoning
DOUGLAS BOYCE AARON SHIELDS, Planning Assistant
THOMAS HUGHES NATALIE BURNS, Esquire, Town Attorney
CLARK NEILY BARBARA SKINNER, Secretary to the Board
MICHAEL PARKER
SUSAN ROBIE
RICHARD SHIERS
The Chairman called the meeting to order at 7:00 PM. The secretary called the roll and all Board members were present.
1. APPROVAL OF MINUTES: MAY 20, 2002 (Tabled from June 3, 2002); and JUNE 3, 2002.
Clark Neily MOVED in seriatim and Michael Parker SECONDED a motion to approve the minutes of May 20, 2002; motion CARRIED 6-0 (Susan Robie abstaining).
Clark Neily MOVED and Susan Robie SECONDED a Motion to approve the minutes of June 3, 2002. DISCUSSION: Mr. Parker requested that his name be substituted on the names of those present on the June 3, 2002, minutes for the second naming of Mr. Neily; motion CARRIED 6- 0 (Richard Shiers abstaining).
2. APPEAL FROM DECISION OF SITE PLAN REVIEW COMMITTEE Appeal from Lake Region Furniture to the Planning Board of the decision of the Minor Site Plan Review Committee
The Chairman announced the presence of the Town Attorney, Natalie Burns, Esquire. The Director of Planning and Zoning, Deborah Fossum, stated that staff had been advised by the Town Attorney that she and the Planning Assistant, Aaron Shields, should step away from the table because Ms. Fossum as a member of the Site Plan Review Committee had participated in the review of the project and due to Ms. Fossum
Paul Driscoll, Esquire, of the firm of Norman, Hansen & DeTroy, LLC, appeared on behalf of the Appellant Lake Region Furniture. Mr. Driscoll stated that he had had an opportunity to review Ms. BurnsBurnsfoot strip which shall be curbed and landscaped,” which Mr. Driscoll said was not discretionary, it is not an issue of a good or a bad idea, but it is an issue that the ordinance requires. He said that the issue is whether this project conforms to that criteria, and the simple fact is that it does not. He said he believed that what is necessary when reviewing the record here is to apply the Code to this project and make that assessment. He said the project does not meet the criteria, he said he did not believe that there was even a contention that it does, and obviously if there were, it is just not supported by the evidence. He said that the next major point, which was the subject of considerable discussion before the Minor Site Plan Review Committee, is that in the Roadside Commercial District, as applicable to this project, the design of the site must be such that it can accommodate a WB-40 truck, a truck with a wheel base of a certain diameter,
which is recognized among the industry among engineers and traffic professionals. Mr. Driscoll said that this issue was presented to the Site Review Committee, with the result that a special condition was imposed on the project saying that access had to come in from one street and out the other, going only one way through the property. He indicated that he believed the Site Review Committee failed to appreciate that that criteria of the ordinance has to be accommodated with the other mandatory provision of the 20-foot curb area being included. He said that Les Berry, BH2M Engineers, was present to comment on the documents in the existing record which show the project, show the templates which Mr. Driscoll specifically asked to be included in the record illustrating the turning radii of trucks of that nature and which Mr. Driscoll would offer to show what he believed to be an incontrovertible conclusion that it is simply impossible for this site to accommodate both
a 20-foot curbed area that is a mandatory provision in the Ordinance as well as a WB-40 truck. He said that the Minor Site Review Committee did not even attempt to do because they did not impose the first condition of the 20-foot wide area.
At this point, Les Berry, BH2M Engineers, appeared on behalf of the appellant, stating that he had written several letters, participated in both of the Site Plan Review Committee and presented testimony. He indicated that he was presenting the same plans that he took to the meeting, which show the project site plan as it was presented and superimposed templates representing the turning radii of the WB-40 truck, obtained from the Maine Department of Transportation design guidelines giving the truck Mr. Berry also read from page 131, Section 10 of the Ordinance, that “No portion of any lot which is used to satisfy the front yard requirement of this Ordinance shall be used for parking or any commercial or industrial use;” which he said was discussed before the Site Plan Review Committee because Portland Cover had testified that part of the business was to have boats come in to get shrink-wrapped, dropping boats off before and after hours, and any time during the day. Mr. Berry said that if a boat were dropped off, it would occur in the front setback line which was not allowed, but during the Site Plan Review Committee meeting the Code Enforcement Officer said it wasnperiod of time in a certain location.” He said that in his opinion to use the front setback for deliveries or dropping off of boats seems to violate the Ordinance and if the Board finds it is allowed, it will open a floodgate which will be hard to stop.
Mr. Driscoll then returned on behalf of the appellant and said that the policy of enactment of ordinances and the application of the law in different cases and decisions of that nature are made by the Town Council, who by state law establish what the requirements are in accordance with the Town's Charter, and if the Ordinance requires a 20-foot curbed and landscaped area in the Roadside Commercial District, that is what is required. He said that it requires that there be turning radii for WB-40 trucks, also something that is mandatory, and there is no parking allowed in the front setback. He said these things are the law and it is as applicable to him as it is to this body, and the issue is whether or not this project conforms to those criteria. He said that if it does, then Mr. Cairns is entitled to an
order of this Planning Board affirming the decision of the Minor Site Plan Review Committee and they will take their appeal to Superior Court, but if it doesnbelieved it does not.
Mr. Hughes asked Mr. Driscoll about the parallel action in the Cumberland County Superior Court. Mr. Driscoll explained that as a result of a prior proceeding before the Zoning Board of Appeals concerning Mr. Cairnsapplication for second story expansion, so when an application came before the Site Plan Review Committee, it did not include that expansion, it was just for a re-use of the existing building, which is what is before the Board tonight. Ms. Robie asked if the prior use of this building was non-conforming; Mr. Driscoll indicated that it was. Ms. Robie asked if the building and the site were also non-conforming; Mr. Driscoll said he believed it was. Ms. Burns said she believed that the building was non-conforming as to the side setback requirements, Mr. Driscoll agreed. Ms. Burns replied to a question from Ms. Robie that the proposed use would be a conforming use but the structure itself remains non-conforming. Mr. Driscoll concurred, stating that there is a distinction in the Ordinance between structures and uses, and agreed with Ms. Robie
Mr. Grant asked that the Town Attorney advise the Board if she perceived anything inappropriate occurring as the Board deliberated on the issues, to which she agreed.
Mr. David Cairns addressed the Board, stating that they had been in business for almost 15 years and about 11 months ago decided to purchase the property known by many as the old Getty station at Route 25 and Bartlett Road. He indicated that there had been serious issues regarding the ZBA, but that the building is a legal non-conforming structure, vacant for 7 years, and the only changes to the property are the recommendations of the Minor Site Plan Committee and its engineers. He stated that he is working with the Town Council on some issues which he could not discuss regarding Bartlett Road. He said that he had bought the building a month ago when he got his approval, to take that approval away would certainly be a hardship, he is excited about bringing his business in, which is not boat trailers or
WB-40 trucks, it is awnings and canvas fabrication. He said that most of his deliveries are UPS, small box trucks, not tractor-trailers such as those that carry furniture. Mr. Cairns then introduced Tom Gorrill of Gorrill Palmer.
Mr. Gorrill stated that he had submitted a letter on April 17, 2002, concerning truck circulation on the site, which at that time was, and still is, proposed to be primarily a vehicle pulling a boat trailer. He stated that the site was evaluated on that basis, which included the use of a turning template on the plan for the WB-40 truck as Mr. Berry had done, reiterating that the turn can be made off Bartlett Road by a WB-40 truck. He said that in his opinion a WB-40 could move into the site from Bartlett and exit into Route 25. Mr. Gorrill then attempted to demonstrate the turning templates for what will be used on site, about half the size of a WB-40, but Ms. Burns asked that Mr. Gorrill not present them because they had not been before the Site Plan Review Committee. Mr. Gorrill stated that his
April letter had referenced the smaller turning templates which he believed Helen Edmonds had superimposed.
Mr. Cairns discussed the past history of the applications and the problems with the ZBA involving loss of approval, timing difficulties and incorrect usage of a variance form. Ms. Burns indicated that a discussion of this issue might be more confusing to the Board. Mr. Cairns then stated that he did obtain a permit for a non-conforming structure to expand the building, which he was not able to exercise because of a time lapse in getting it on Minor Site Plan approval. He said they have filed in Superior Court, but they are not challenging the Site Plan Committee
Ms. Burns said that Mr. Driscoll should be allowed to sum up before the Board began its deliberations.
Mr. Driscoll said that no one disputes that a WB-40 truck can come in from Bartlett and exit onto Route 25, which was a condition imposed by the Minor Site Plan Review Committee. He said there is a legal issue about whether that will be sufficient if there are a series of other turns that need to be done. He said that Mr. Gorrill did not address the mandatory provision of the Ordinance of the 20-foot strip that is required, one of the appeal issues, and that none of the turns can be made with a WB-40 truck if that 20-foot strip is there. Mr. Driscoll said that was put directly into issue; they are compulsory provisions of the ordinance and this doesnissues concerning the ZBA appeal in Superior Court. He said that this project fails to satisfy as a matter of law the issues that are articulated; that is, that it fails to include the 20-foot curbed and landscaped area, it cannot accommodate both that landscaped and curbed area as well as a WB-40 truck turning radii, and finally as required by the ordinance, there can be no parking in the front setback.
In answer to Mr. Grant, Ms. Burns said that if Mr. Cairns were allowed to speak again, then Mr. Driscoll must be offered the opportunity to respond because as the person bringing the appeal he always gets the last word.
Mr. Gorrill testified that they did lay out from the right-of-way a 20-foot setback; he demonstrated that it did not prevent a WB-40 truck from making its turn. Mr. Driscoll stated that while they [his clients] presented the templates concerning the turning radii into the record at the hearing, no one else on the other side presented it.
Mr. Grant asked Ms. Burns to comment. She stated that the Board has before it the appeal summarized by Mr. Driscoll, which very clearly states the basis of the appeal by Lake Region. She said she believed that the issues upon which the Board should focus are (1) whether the sale of boats constitutes parking in the front yard setback, about which she is prepared to address the Board concerning the determination of the Site Plan Review Committee about the issue; (2) whether the provisions of Chapter II, Section II(C)(1) and (2) apply to the project requiring the dedication of a 50-foot strip adjacent to Route 25 including a 20-foot strip that is curbed and landscaped; and (3) related to that issue, but somewhat separate, whether this project meets the site plan requirement allowing a sufficient turning radius
for WB-40 trucks in and of itself, and if the 50-foot strip is required, can that standard still be met. She referred the Board to the Site Plan Review Committee decision document, which also has attached to it the site Plan Review Committeeinterpretation of a site plan ordinance, and a logical way to address them is the order in which Mr. Driscoll has presented them, since the second issue really follows along with the first issue. In response to a question from Mr. Grant, Ms. Burns said she believed that the parking issue should be considered last but explained the issue as whether the proposed sale of boats in the front yard is prohibited in the Ordinance at page 131 concerning parking in the required front yard setback, or is the storage of boats in that required front yard setback not considered parking that is prohibited by the Ordinance. She indicated that she would like to address the Board on this issue as it was discussed by the Committee and reflected in the minutes. Mr. Hughes asked if the shrink-wrapped boats would be considered to be parked in the setback; Ms. Burns replied that she was not sure that the proposal is to store the shrink-wrapped boats in front, and she thought that staff
could confirm her belief that the shrink-wrapped boats would be stored on the side of the building in the general parking area. She said she believed the question runs to the issue of the boats offered for sale being placed in the front yard setback.
Mr. Grant asked for comments from the Board, starting with the issue of the 20-foot setback. Mr. Parker said it appeared to him that it appears to be clearly called for in the Ordinance and clearly absent from the site plan, and therefore it looks as though the site plan violates the Ordinance. Ms. Robie asked if there was a 20-foot landscaped buffer present now, on being told no, she read from page 6 of the Ordinance about non-conformance, which states that if the use of the building, structure, premises, the land or parts thereof are non-conforming and made non-conforming by the passage of this Ordinance, the Board of Appeals has allowed a more conforming use, so the Ordinance says that so long as one is not making it less conforming, it does not have to be held to the standards of the Ordinance. Upon
being asked if Mr. Driscoll could respond to that point; Mr. Grant indicated that Mr. Driscoll could respond after the Board finished its deliberations. Hughes concurred with Ms. Robie if the buffer had been there and was then taken out, then there would be a problem, but if it is not there now in his opinion it is grandfathered in and it can be used as it was. Mr. Neily also concurred with Ms. Robie; he also stated that internationally it is generally agreed that “parking” involves a wheeled vehicle and he did not believe that boats being offered for sale constitutes parking. Mr. Neily also said that because the developer said he rarely used WB-40 trucks in connection with his business, he did not believe that that issue was a problem. Mr. Boyce expressed concern whether this Board is the correct venue to discuss a decision on non-conformance and if there was any ordinance the Board could look to which govern the facts relating to
non-conformance and whether something is or is not grandfathered, and that he was concerned about the length of time the building had not been used which might cause it to lose a grandfathered status. Mr. Neily said that the intent of the paragraph to which Mr. Boyce referred was to eliminate a non-conforming use, not the non-conformance of the structure, and that in this application the use was permitted; Ms. Robie concurred. Mr. Boyce said he was troubled by the wording of the ordinance in that it was not entirely clear. Mr. Grant asked Ms. Burns to comment on the fact that there had been a building on the site for many years and if the 20-foot buffer standard had to be met, it would make the building useless, and the Board usually did not try to put buildings out of use because they are non-conforming. Mr. Shiers asked where is the building non-conforming? Mr. Grant replied that it was not necessarily the building, that it could be the land or the
building, and the 20-foot buffer called for by the Code is not there, which probably is non-conforming, but can it be accommodated and still use the building. Mr. Grant said he did not believe it could be. Mr. Grant also commented that the Code Enforcement Officer sat on the Minor Site Plan Review Committee and signed off on the application, and that it is his call on non-conformance. Ms. Burns said that the appropriate interpretation in Section II of the provision on page 6 is that a non-conforming use of land or a non-conforming use of a building, not a non-conforming building. She said that generally abandonment provisions only apply to non-conforming uses, and that there is a very clear distinction in Maine law between non-conforming uses, which are supposed to be eliminated as quickly as possible, and non-conforming structures which are supposed to be limited so that they donlegal opinion that Section II(2) does not apply here because you are not talking about a non-conforming use, but you are talking about a non-conforming structure so there is no argument that there has been some sort of abandonment meaning that building has to come into full conformity. She said that such an interpretation would mean that the building would have to be torn down because it doesnresponse to a query from Ms. Robie, Ms. Burns stated that the Board has to determine whether the provision that is at issue, the 50-foot dedication required, applies to a site that has an existing structure on it.
Mr. Grant asked if the applicant needs the 20-foot buffer to meet the Code. Mr. Boyce stated that he believed they do not, in accordance with Section II, item 1; Mr. Neily concurred and Mr. Shiers concurred. Mr. Parker stated he had been persuaded by Ms. Robie
Mr. Grant asked Ms. Burns to summarize the question of parking in the front yard setback. Ms. Burns began by summarizing the issue of whether the applicant may place in the required front yard setback, which on this site is pretty much the entire area in front of the building because it doesngave the opinion that she did not think the issue was properly before the Committee at that time, as it was an issue that the Code Enforcement Officer would make a final determination on but he had not done so then and so far as she knew still has not yet done so, simply because while the application indicated it was something the applicant would like to do, no real proposal about the details was given within the site plan application. Ms. Burns said that before the applicant would have been able to have such boat sales, which are not really accessory to the principal use as best she can tell from the limited information provided, the applicant would have to bring in more information to the Code Enforcement Officer, who would make a formal decision at that time, which would at that time be appealable to the Zoning Board, not to this Board, since it would be made strictly under the terms of the zoning ordinance not the site plan ordinance. In response to a question from
Mr. Grant, Ms. Burns confirmed that it was her opinion that this was not an issue for the Board to deal with, inasmuch as no final decision has been made on that at this point and there is really nothing for this Board to decide. She said that the minutes show that Mr. Cushman agreed at the Site Plan Review Committee that he had not made a final decision but he did mention the Westcott site plan which had gone before the Zoning Board of Appeals, and she does not believe that the Code Enforcement Officer has opined on this particular application that the Westcott decision is the same rule which will apply here, principally because he does not yet have enough information to make a final decision on that issue. She also said that the appellant is concerned that the issue not be decided so that they lose out of their appeal period, but she did not believe anything has been decided yet to appeal.
Mr. Grant summarized the BoardBoard finds the Site Plan Review Committee
The Chairman called for a ten-minute break. [8:15 p.m.]
Ms. Burns read the following Findings of Fact:
1. Lake Region Furniture appeals the decision of the Site Plan Review Committee approving the minor site plan application by Portland Cover, LLC for property located at 669 Main Street.
2. The Site Plan Review Committee approved the minor site plan application on May 29, 2002. The Committee approved the site plan with several conditions.
3. This appeal is brought under Chapter IV, Section VII(D)(5) of the Land Use and Development Code. That section allows any party aggrieved by a decision of the Site Plan Review Committee to appeal that decision to the Planning Board within ten days of the date of the decision.
4. Lake Region Furniture owns the property that abuts 669 Main Street and it participated in the Site Plan Review Committee
5. Lake Region Furniture filed this appeal within ten days of the date of the Committee
6. Under the provisions of Chapter IV, Section VII(D)(5), the review by the Planning Board is appellate in nature.
7. The Planning Board has received and reviewed copies of the record developed by the Committee, as well as copies of the Committee
8. The Planning Board conducted its review of this appeal at its public meeting on July 1, 2002. At that time, it heard presentations from Lake Region Furniture and from Portland Cover, LLC.
9. Because the Planning Board
10. Lake Region has presented three separate reasons for its appeal, as set forth in its attorneya. The development does not meet the requirements of Chapter II, Section II(C)(1) and (2) of the Code because it does not provide a 50-foot strip adjacent to Route 25 and a 20-foot landscaped and curbed strip within the 50-foot strip.
b. The development does not meet the requirements of Chapter IV, Section I(D)(1), which requires a sufficient area on the premises to permit the safe turning of a WB-40 truck. Lake Region argues that this standard cannot be met if the 50-foot strip is provided on the site.
c. The Committee failed to include a provision in its approval prohibiting the parking, storage and display of boats for sale.
11. The Board makes the following determinations on the issues raised by Lake Region Furniture:
a. The requirement for the 50-foot buffer strip and the 20-foot landscaped and curbed strip does not apply to this application. The structure on the site is an existing nonconforming structure that predates this requirement. The continued absence of the buffer does not increase the nonconformity. The Code does not require the removal of nonconforming structures or their abandonment. If the site were required to meet this zoning requirement, the existing building would become useless since it could not be reused. In addition, Chapter I, Section II of the Code allows the continued use of structures, premises, land or parts thereof existing at the effective date of the Code and made non-conforming by the zoning provisions may
continue.
b. In the absence of the 50-foot strip and 20-foot landscaped and curbed strip, the WB-40 turning radius in the site plan review provisions can be met subject to the condition of approval established by the Site Plan Review Committee limiting access to the property from Bartlett Road and egress from the site to Route 25/Main Street.
c. The Planning Board determines that no final decision has been made by the Code Enforcement Officer on whether the sale of boats from the front yard of the property is prohibited as front-yard parking. When the Code Enforcement Officer makes this decision, it will be subject to appeal to the Board of Appeals.
12. Based upon this determination, the Board finds that the minor site plan application presented by Portland Cover, LLC meets the applicable standards in the Land Use and Development Code, including those at issue in this appeal, and approves the application.
Mr. Grant asked for and received Board concurrence to the Findings of Fact.
Clark Neily MOVED and Douglas Boyce SECONDED a motion that the Planning Board approve the decision of the Minor Site Review Committee that the application by Portland Cover, LLC meets the standards in the Land Use and Development Code and that the Board adopts the Findings of Fact as presented at the meeting. Motion CARRIED 7-0. [8:30 p.m.]
3. MIDDLE SCHOOL FACILITIES IMPACT FEE ORDINANCE
PUBLIC HEARING
Proposed amendments to add a Middle School Facilities Impact Fee to the Gorham Land Use and Development Code.
The Planning Director presented the staff comments. Ms. Fossum presented the Board with copies of re-drafted language developed as a result of the Planning Board workshop meeting of June 17, 2002. She explained that the impact ordinance, adopted by the Town Council on June 4, 2002, created a framework for the adoption of subsequent impact fees associated with specific capital projects, with the first project specific impact fee, the new Middle School facility currently under construction. Ms. Fossum explained that the Board reviewed the ordinance and methodology developed by Mark Eyerman of Planning Decisions at its June 17 workshop. She also told the Board that the Code Enforcement Office has been collecting the impact fee since June 5, and as of June 28, 2002, $25,200 had been collected on a
total of 12 permits, and if the ordinance is adopted, it will be retroactive back to June 5. She discussed the two exceptions to the impact fees as being of residential uses permanently limited to the occupancy of residents who are at least 65 years old, and any residential use that is permanently limited to occupancy by residents who are at least 55 years old by binding legal restriction will be exempt from 90% of the otherwise applicable fee. She said that the fees are based on a methodology developed for the Town by the consulting firm of Planning Decisions under the guidance of the Town Council Ordinance Committee, and that the fees shall remain in force until July 1, 2022, unless the amount of the fees collected reaches $4,375,000 or enrollment at the school reaches 900 students before July 1, 2022. Ms. Fossum stated that under the ordinance the Planning Department has the overall responsibility for the administration of any impact fee ordinances, but in this
case, the Code Office will handle the administration of the fee collection, and the Code Officer will determine the number of bedrooms shown on a plan which will be used to set the fee actually collected as outlined in the methodology for determining the fees. She further said that any questions concerning the amount of impact fees required for any particular type of unit will be referred to the Planning Board for interpretation. Ms. Fossum explained that the memo distributed to the Board at the meeting constitutes a refinement of the language originally drafted. It is clearer and more precise in defining what constitutes a bedroom. She indicated that the most recent memo contains a revised table that is easier to read. She said that the current memo also provides for the collection of additional impact fees if additional bedrooms are added within two years of the initial fee having been paid. In response to a query from Mr. Neily, Ms. Fossum
explained that anything beyond a two-year period becomes too burdensome to track. Mr. Parker asked that Mr. Eyerman explain the methodology so that the public can hear what was involved in establishing the actual fee schedule proposed in the ordinance.
Mark Eyerman of Planning Decisions explained that Maine state law covers the use of impact fees and limits their applicability to capital facilities which are needed to accommodate growth, so the methodology works through the issues of what the facilities needed are, what the costs are, and how the costs can be allocated through impact fees. He said that the Town is committed to build a 900 student capacity middle school based upon future enrollment projections with and without residential development in the community, this impact fee is based upon the concept that of that 900 units of capacity that will be created in the new middle school, a 600 student capacity would be needed to service the existing housing stock in Gorham without any additional residential development, and that the additional 300 units of
capacity is that share of the facility being built to accommodate growth and upon which the impact fee is based. He explained that in accordance with the State of Maineresidential development in the Town that creates potential new middle school students. He said that the calculation of the fees, ranging from zero for certain types of housing to a maximum of $3150, is based on what the potential number of new middle school students is, based upon the type of housing and a variety of configurations, based upon both local and generated national studies, applying that against the approximately $15,000 per student capacity for the final 300 units of capacity. At the request of Mr. Neily, Mr. Eyerman said that York has impact fees for residential development for middle school construction and high school renovation expansion in the same relative magnitude as the ones proposed in Gorham, and Scarborough has recently adopted impact fees with a school component of around $3200 per unit.
PUBLIC HEARING OPENED:
Susan Duchaine, SoLD, Inc., 65 Main Street, Gorham: Ms. Duchaine recommended that the Board determine if an impact even exists, expressing concern about the present size of student enrollment. She also expressed resentment that new housing is being asked to carry the burden because the Town cannot live within its budget, that she believed existing housing was creating more children than new construction and questioned why she had not been contacted about new housing, stating she had built at least 70 new houses in the past year. She expressed concerns with age discrimination, smaller sized families, the absence of a category for divorced individuals, and suggested that the Board send the ordinance back and ask that the creators show where the impact is.
Bob Pettit, 22 Valley View Drive: Mr. Pettit said he heartily endorsed the proposed amendment for the school facilities impact fee, and that while the plan is very well thought out, it did not address incremental costs of educating additional school children, and that property taxes of the average house in Gorham will not take care of the educational costs, which can only be addressed by zoning law changes to cut down urban sprawl.
Vincent Maietta, VT Properties, LLC, 199 Elderberry Drive, South Portland: Mr. Maietta stated that he was a developer in Scarborough. He said he was glad to know that Gorham plans to do the same thing that Scarborough has done and that he believes the school systems are being overburdened by state mandates, that class sizes are not increasing as significantly as the Board might feel, that a consultant in Scarborough concluded that there are .78 children per new residential homes, but a study showed it was actually .32 children, and that state mandates require fewer kids per classroom and increased costs are not because of new development.
PUBLIC HEARING ENDED. [8:50 p.m.]
Mr. Grant asked if any of Board members had any comments about the new language in the revised memo presented by Ms. Fossum. He discussed the concerns of the Fire Chief and the Code Enforcement Officer and his belief that the present language has been worked from many angles and it is as close as it can be. Mr. Shiers stated that he is going to support impact fees in Gorham because other communities are doing the same and it is a way to pay for some of the services needed, that when growth rates approach 1% towns cannot keep up with services and become short on budgets, and Gorham is up to 1.5% pushing 1.7%, with a past normal rate of ½%. Mr. Grant commented that over the past years the Council Ordinance Committee has looked at many options to try to slow growth because of the tremendous growth in
the community such as limiting building permits, and that without this in place, development will be even more overwhelming as other communities impose such fees and developers seek areas where there are none. Mr. Neily commented that State law requires that impact fees pay for major capital investments such as the school, but it should not be forgotten that every new home has an impact on all the other municipal services that have to be provided, such as police and fire. Mr. Grant asked if the Board members agreed with the changes in the memo presented; Mr. Hughes indicated that he has reservations about impact fees and that he does not like regressive taxes. He said that he is not sure that the estimates about possible students are correct, and that he is very ambivalent about the issue. Mr. Parker stated that it is a well established fact that the taxes by a home do not support the costs of the infrastructure required to support that new home and that is
the reason an impact fee is conceptually correct. He said he would further suggest that the Planning Board
Clark Neily MOVED and Douglas Boyce SECONDED a motion recommending adoption of the proposed amendment as corrected by the July 1, 2002, memo presented by staff to add a new Chapter VII, Section II, Middle School Facilities Impact Fee #1, to the Gorham Land Use and Development Code for the purpose of establishing an impact fee for the purpose of paying for additional capacity at the Gorham Middle School, with the recommended revisions in the proposed language discussed at the meeting. Motion CARRIED, 6-1 (opposed Thomas Hughes). [9:00 p.m.]
Clark Neily MOVED and Richard Shiers SECONDED a motion that no new item be taken up after 10:00. DISCUSSION: Ms. Fossum indicated, in response to a question from Chairman Grant, that a second meeting in July had been discussed for either July 15 or 22, that there was no firm agenda as yet for a second meeting, and some items could be carried forward. Motion CARRIED, 7-0. [9:01 p.m.]
4. NEW GRAVEL PIT OPERATION / SPECIAL EXCEPTION PUBLIC HEARING (Continued / Tabled from June 3, 2002)
Request for approval of a new gravel pit operation off Hurricane Road. Zoned Rural (R) & Suburban Residential (SR); Map 93/Lot 15.
This is a continuation of a Public Hearing: This application was last before the Board on June 3, 2002. Since then the applicant has submitted a revised Operations Statement, dated June 5, 2002, and revised plans dated June 20, 2002.
Mr. Grant indicated that he had previously been excused from discussions on this item and would ask Mr. Boyce to take over as chairman.
Mr. Boyce asked Ms. Burns if the public hearing was to be reopened as it had previously been closed at the last meeting but that new submissions had been received; Ms. Burns replied that the public hearing could be reopened but limited only to any new submission items.
Thomas Greer, P.E., Pinkham & Greer, appeared on behalf of the applicant and introduced Craig Pike. Mr. Greer referred to the issues which were brought up at the last meeting, as well as staff comments, to which the applicant has attempted to respond. Mr. Greer indicated that the boundary line has been corrected to what had been shown on the original plans, that a pin had been located from which a 200 foot measurement was taken, that they are outside the 200 foot setback for the buffer, that the trees will stay, and that the buffer area has been corrected. Mr. Greer indicated that the entrance road to the pit will be paved within the 100for use in erosion control, that screening will be allowed on the site for only two days a week, and no other offsite material will be brought on to the site for processing. Mr. Greer stated that they had worked on the intersection of North Gorham Road and Hurricane Road, and believe that their plan is correct, that they would like to work with staff to resolve the right of way issue, that they have located two boundary monuments on the corner and believe them to be correct but their land surveyor was not able to confirm that as of this day; that they have done a fair amount of research in the Registry of Deeds but the right of way is unknown. He said that based on existing monumentation on Hurricane Road, they believe it to be a 66 foot wide right of way, which would be consistent with some of the older roads in the Town of Gorham. They would also like to review the widening of North Gorham Road; inasmuch as they had planned to use tractor-trailer trucks which
would have required the widening of the intersection; however, they are willing to eliminate the use of tractor-trailer trucks and leave the intersection as it is. Mr. Greer said it is at the discretion of the Board but they would be willing to leave with a condition forbidding the use of tractor-trailer trucks in exchange for not having to widen the intersection.
Mr. Shields presented the staff report. He stated that the June 5 operational statement is the applicantotherwise. So the applicant has asked the Board to make a condition of approval on this issue which had not been included in the conditions originally drafted. Mr. Shields asked that the Board review the Special Exception Approval Standards and the Site Plan Review criteria.
Mr. Boyce suggested that a new submission involved the applicant
PUBLIC HEARING OPENED.
Jeff Rich, abutter at 63 Hurricane Road, suggested that the hours of operation be changed to 8:00 a.m. to 5:00 p.m. and stated that he believed that the applicant had not made any good effort to minimize the impact of the pit on the abutters. He also discussed other alternatives he believed would minimize the impact that the applicant has not addressed, such as eliminating Saturday screening, and expressed concern about the location of the road.
Craig Pike indicated that the hours of 7:00 a.m. to 5:00 p.m. would be acceptable. He also stated that he has made concessions that he did not believe had been recognized and that his ultimate goal was to try to get the land reclaimed.
PUBLIC HEARING CLOSED. [9:30 p.m.]
Mr. Greer replied to Ms. Robie that the applicant will eliminate Saturday screening, and that the Saturday hours are 8:00 a.m. to 2:00 p.m. in the Code. Mr. Parker asked Mr. Greer to explain the applicantdid not see the need to widen the intersection; Mr. Neily concurred, saying that the applicant had made concession after concession and that he thought it was time to take a look at the Special Exceptions. Mr. Parker agreed that the applicant had many concessions and the proposed berm would be a significant noise barrier. Mr. Shiers stated that the pit was an allowed use in a rural neighborhood and that he would not require the applicant to forego Saturday hours. Mr. Hughes asked Mr. Greer if Saturday were a “make or break deal;” Mr. Greer replied that if they had to lose it, they would lose it, but they would rather not. Mr. Boyce asked Mr. Greer if test wells were included; Mr. Greer replied that they were no longer of concern, but if the Board would like test wells of ground water, they would be willing to do so, but would prefer not to set up a testing program per se. Mr. Boyce asked staff is there were any concerns about measured
distances or offsets; Mr. Shields replied that there were none.
Mr. Boyce polled the Board; the consensus was that regular hours of operation would be 7:00 a.m. to 5:00 a.m. with Saturday hours 8:00 a.m. to 2:00 p.m. Ms. Robie reaffirmed that there would be no screening on Saturdays. Ms. Robie stated that the applicant agreed not to use tractor-trailers and the Board agreed to not improving the intersection; operation hours would be 7:00 a.m. to 5:00 p.m. on weekdays, and 8:00 a.m. to 2:00 p.m. on Saturdays. She stated that there is no mention of the berm but it is shown on the plan; she said that the planning notes still say 10 years and should say 5 years to complete reclamation, and the planning notes do not say that stumps will not be buried.
Mr. Boyce asked if the Special Exceptions Criteria should be taken one by one or as a group; Mr. Shields recommended that they be gone through one by one. Mr. Boyce read the Special Exception Criteria and the Board determined as follows:
1. The proposed use will not create or aggravate hazards to vehicular or pedestrian traffic on the roads and sidewalks, both off-site and on-site, serving the proposed use as determined by the size and condition of such roads and sidewalks, lighting, drainage, and the visibility afforded to pedestrians and the operators of motor vehicles on such roads. The Board concurred unanimously, 6 Ayes, Mr. Grant absent.
2. The proposed use will not cause water pollution, sedimentation, erosion, contaminate any water supply nor reduce the capacity of the land to hold water so that a dangerous or unhealthy condition results. The Board concurred unanimously, 6 Ayes, Mr. Grant absent.
3. The proposed use will not create unhealthful conditions because of smoke, dust, or other airborne contaminants. The Board concurred unanimously, 6 Ayes, Mr. Grant absent.
4. The proposed use will not create nuisances to neighboring properties because of odors, fumes, glare, hours of operation, noise, vibration or fire hazard or unreasonably restrict access of light and air to neighboring properties. The Board concurred unanimously, 6 Ayes, Mr. Grant absent.
5. The proposed waste disposal systems are adequate for all solid and liquid wastes generated by the use. Not applicable.
6. The proposed use will not result in damage to spawning grounds, fish, aquatic life, bird or other wildlife habitat, and, if located in the Shoreland Overlay District, will conserve (a) shoreland vegetation; (b) visual points of access to waters as viewed from public facilities; (c) actual points of access to waters; and (d) natural beauty. The Board concurred unanimously, 6 Ayes, Mr. Grant absent.
Clark Neily MOVED and Michael Parker SECONDED a motion to approve Craig Pikethere were some changes added to the Operations Statement, and one of the conditions of approval specifically mentions the Statement, so it needs to be changed to “revised operational statement” so that the changes can become part of the Operations Statement, such as the hours of operation. Ms. Robie confirmed that some of the planning notes would be changed; Mr. Shields concurred. Motion CARRIED 6-0 (Harold Grant excused). [9:50 p.m.]
5. SITE PLAN PUBLIC HEARING
Request for approval of a new 9,750 SF industrial building off Laurence Road. Zoned Industrial (I); Map 12/L18.001.
Mr. Grant resumed the chair as chairman.
David Kamilla appeared on behalf of the applicant and introduced Vincent Maietta, one of the principals of the project. He indicated that the address should be corrected to show that it is “Laurence DRIVE” and not “Laurence ROAD.” He said that he had received the permit from DEP on the wetlands issue today. Mr. Kamilla described the project as an industrial building to accommodate 5 bays which will be leased to allow limited office space and light commercial storage. Mr. Shields indicated that the applicant had satisfied all requirements for Site Plan Review.
PUBLIC HEARING OPENED: None offered.
PUBLIC HEARING CLOSED.
Mr. Neily asked who the principals of VT are; Mr. Kamilla replied that they are Timothy Norton and Vincent Maietta. Mr. Neily again expressed his concern that too many storage facilities are not desirable in an industrial park. He asked Mr. Kamilla what the cost of the proposed building was; Mr. Kamilla replied that it was approximately $900,000.
Susan Robie MOVED and Michael Parker SECONDED a motion to approve VT Properties, LLC
6. ADJOURNMENT
Clark Neily MOVED and Douglas Boyce SECONDED a motion to adjourn. Motion CARRIED 7-0. [9:59 p.m.]
Respectfully submitted,
___________________________
Barbara Skinner
Secretary to the Board
July 1, 2002
R:\PLAN\PLBD\AGENDAS\MINUTES\PBMN03Fy\PBMN070102.doc
4. NEW GRAVEL PIT OPERATION / SPECIAL EXCEPTION
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 applicant and that any variation from the plans, proposals and supporting documents is subject to review and approval by the Planning Board, except for de minimums changes which the Director of Planning may approve;
That the applicant shall obtain all local, state and federal permits required for the expansion of this gravel pit prior to the commencement of mining in any of the proposed expansion areas;
That the applicant is responsible for obtaining all local, state and federal permits required for the development of this project;
That the REVISED OPERATIONS STATEMENT shall be made part of the Conditions of Approval and may be entirely enforceable if the operation of the pit is at any time non-compliant;
That the duration of extraction and reclamation does not exceed five years in length, starting from the date of Planning Board approval;
That the applicant establish a performance guarantee in the from of a bond, letter of credit, or such other financial instrument as deemed satisfactory by the Town Manager covering the cost of the reclamation plan;
That all construction and site alterations shall be done in accordance with the “Maine Erosion and Sediment Control Handbook for Construction: Best Management Practices,” Cumberland County Soil and Water Conservation District, Department of Environmental Protection, dated March, 1991;
That the applicant shall provide property line information and site information in auto-cad format to the Town Tax Assessor;
That prior to the commencement of any site improvements and/or earth-moving activities associated with the approved site plan, the applicant shall arrange for a pre-construction meeting through the Planning Office, with the selected Review Engineer, Public Works Director, Fire Chief, Code Enforcement Officer and the Planning Director, to review the proposed schedule of improvements, conditions of approval, and site construction requirements;
That the Town shall be notified of any proposed changes in ownership of the pit or change in pit operator and that the Planning Board shall review and approve such change in ownership or operator to determine whether the proposed new owner/operator has sufficient financial and technical capacity to comply with all applicable ordinance requirements and the conditions of this approval;
That these conditions of approval shall be recorded at the Cumberland County Registry of Deeds within thirty (30) days of the Planning Board approval and a dated copy of the recorded Decision Document shall be returned to the Town Planner within fifteen (15) days of the date of recording.
5. SITE PLAN
Approved
Conditions of Approval
1. 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 applicant and that any variation from the plans, proposals and supporting documents is subject to review and approval by the Planning Board, except for de minimus changes which the Director of Planning may approve;
2. That the applicant is responsible for obtaining all local, state and federal permits required for the development of this project;
3. That the building shall meet all applicable sections of the 101 Life Safety Code;
4. That all construction and site alterations shall be done in accordance with the “Maine Erosion and Sediment Control Handbook for Construction: Best Management Practices,” Cumberland County Soil and Water Conservation District, Department of Environmental Protection, dated March, 1991;
5. That the applicant shall provide property line information and site information in auto-cad format to the Town Tax Assessor;
6. That prior to the commencement of any site improvements and/or earth-moving activities associated with the approved site plan, the applicant shall arrange for a pre-construction meeting through the Planning Office, with the selected Review Engineer, Portland Water District, Public Works Director, Fire Chief, Code Enforcement Officer and the Planning Director, to review the proposed schedule of improvements, conditions of approval, and site construction requirements;
7. That the site improvements shall be completed as shown on the approved plans prior to request for either temporary or final occupancy permits for the building; or a performance guarantee, covering the remaining site improvements shall be established through the Planning Department; and
8. That the conditions of approval shall be recorded at the Cumberland County Registry of Deeds within thirty (30) days of the Planning Board
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