Town of Otisfield
State Route 121, Otisfield, ME 04270
PLANNING BOARD
Findings of Fact and Conclusions of Law
This document is intended to serve the purpose of detailing the findings, evidence, submittals, oral testimony, and public input regarding an application under consideration of the Otisfield Panning Board. It is the Board's goal to establish that the applicable project does or does not meet the requirements of the Town of Otisfield's ordinances, as interpreted by the town's Planning Board and Code Enforcement Officer. This document serves as the Board's obligation to provide written "findings" and "conclusions" when preparing a decision.
The review outlined below is the result of due process and is intended to be fair, impartial, and proper.
IN NO WAY SHOULD ANY CONCLUSIONS, AND / OR PENALTIES, BE ASSUMED TO BE PRECEDENT SETTING. THIS PARTICULAR CASE SHALL NOT BE USED AS A MEANS TO ADDRESS FUTURE CASES. WHILE THE FINDINGS OF FACT CRITERIA MAY BE REPEATED IN SIMILAR CASES, THE CONCLUSIONS AND PENALTIES WILL ALWAYS BE ADDRESSED INDEPENDANTLY FROM OTHERS PRIOR TO SUCH CASES.
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January 16, 2007
Map U7, Lot 19B, Beehive Lane
Applicant: CHARLES GRASSO
PROJECT DESCRIPTION
Shoreland Zoning - Thompson Lake
Issue: Reconstruction of a building within 100' of the shoreline
Administration of the Shoreland Zoning Ordinance falls under the responsibility of the Otisfield Planning Board (PB) and the Code Enforcement Officer (CEO). This authority is detailed on page 1 of the Town of Otisfield Building Ordinance, Section 2 Authority and Administration, letter E.
Addressed under Otisfield's Shoreland Zoning Ordinance
Page 4, Section 12 (NON-CONFORMANCE),
Letter C ( Non-Conforming Structure)
Number 3 (Reconstruction or Replacement)
This section [and inserted applicable notations] is based on Public Site Walk minutes on 10-21-06:
"Any non-conforming structure [Detached building used as a bunkhouse / guest quarters] which is located less than the required setback [Required setback is 100'…the structure was approx. 60'] from the normal high waterline of a water body, tributary stream, or upland edge of a wetland [Thompson Lake] and which is removed, or damaged or destroyed [removed by the applicant] by more than 50% of the market value of the structure before such damage, destruction or removal, [100% removed] may be reconstructed or replaced provided that a permit is obtained within one year of the date of said damage, destruction, or removal, [No permit was obtained prior to the start of rebuilding] and provided that such reconstruction or replacement is in compliance with the water setback requirements to the greatest practical extent as determined
by the Planning Board, in accordance with the purpose of this Ordinance. In no case shall a structure be reconstructed or replaced so as to increase its non-conformity." [The Planning Board will make its decision on the structure's non-conformity and new reconstruction location, based upon our findings and conclusions…by determining the "greatest
practical extent."]
The criteria for determining "greatest practical extent" is found in the Shoreland Zoning Ordinance, page 4, Section C, #2, paragraph 2. It reads as follows:
"In determining whether the building relocation meets the setback to the greatest practical extent, the Planning Board shall consider the size of the lot, the slope of the land, the potential for soil erosion, the location of other structures on the property and on adjacent properties, the location of the septic system and other on-site soils suitable for septic systems, and the type and amount of vegetation to be removed to accomplish the relocation."
FINDINGS OF FACTS:
Note: All Planning Board (PB) meeting minutes, and Public Site Walk minutes are available for public review. Many of the following details are more elaborately explained in these minutes. These facts are not to be misconstrued as complete minutes. Any and all letters and submittals are available to the public.
APPLICATION, PUBLIC MEETINGS, TESTIMONY, & SUBMITTALS:
PB meeting: 9-19-06
Code Enforcement Officer (CEO) Zak Horton (ZH) requested Mr. Grasso to attend.
ZH was notified early August of Mr. Grasso's property not having a permit for construction, investigated and placed a stop work order on the project.
- Bunkhouse was torn down and then rebuilt. Applicant claimed to not know permit was necessary.
- Mr. Grasso met w/ ZH and filled out an application.
- He felt that this is the most "practical" location and would cause more disturbance to move it.
- PB Chairman Rick Micklon: Options: 1) If denied, move camp outside 100' zone w/ PB's approval, 2) take the camp down and leave it down or 3) leave as is w/ conditions placed.
- ZH to contact DEP about issue being reviewed. RM: Independent third party is needed to determine if the location is practical.
Public Site Walk: 10-21-06
- Said structure is the guest quarters / bunkhouse. All agreed.
- Discussion re: Shoreland Zoning Ordinance. Mr. Hill (Grasso attorney): "Our position is that this issue falls under the [less than 50% damages] paragraph of the ordinance." RM: "I currently disagree, but will review the ordinance paragraphs with the PB members, and possibly even AVCOG, while in regular session."
- There is a 100' setback requirement. Structure is 60' back. Setback was always non-conforming.
- Structure was removed all at once.
- Lot size is 114' x 187'. 114' is at the lakeside.
- RM: Planning Board has to take into consideration (3) important words, from the Shoreland Zoning Ordinance; "Greatest Practical Extent".
- PB noted possible alternate location of structure behind primary camp, uphill, on flattened area.
- RM: A 3rd party consultant may be needed. Ross Cudlitz, Oxford County Soil & Water and Scott Williams, Aquatic Biologist, Lake & Watershed Resource Management Associates will do a peer review.
- Mike Morse, Maine DEP, is the representative for Shoreland Zoning. Contact info for Mike given to applicant for free consultation.
PB meeting: 12-19-06
- Submittal from Ross Cudlitz, P.E., Engineer for Oxford County Soil & Water Conservation District. Mr. Cudlitz has been to site and concludes that the best practical location is where it is.
- Attorney for the applicant, Michael Hill: New bunkhouse is in the same location as old bunkhouse, but the peak is positioned differently to prevent runoff into the lake. Non-conforming structure, if damaged by 50% or less, it can be reconstructed. RM: recaps ordinance. Structure was removed voluntarily, (all agree) Mr. Hill believes that the Shoreland Zoning ordinance from the state agrees w/ his interpretation.
- Second location causes concern because of power lines. Removing or relocating power lines will cause more disturbances.
- Prior roof was a hip roof and now it's a peak roof to help w/ storm water runoff. . (DP questions Peak roof being interpreted differently)
- PB needs to read and consider the Ross Cudlitz engineering report.
(Based upon the application, prior public meetings, and submittal reviews)
THE BOARD FINDS THE FOLLOWING BASIC FACTS:
1. Application
A. Mr. Charles Grasso is the owner of the property at Map U7, Lot 19B
B. Lot size is 114' x 187'. 114' is at the lakeside.
C. A bunkhouse /structure was torn down and then rebuilt, without a permit.
D. There is a 100' setback requirement. Structure is 60' back. Structure was always non-conforming.
E. Planning Board must decide whether the structure was rebuilt in a setback location considered to be "Greatest Practical Extent".
2. Applicant testimony, representation, and submittals
A. Applicant claimed to not know permit was necessary, and stopped work immediately upon direction of the CEO.
B. Structure was completely (100%) removed all at once.
C. The rebuilding process was done by hand-carrying materials and care was taken to minimize soil disturbance.
D. Submittal from Ross Cudlitz, Engineer for Oxford County Soil & Water Conservation District. Mr. Cudlitz has been to site and concludes that the best practical location is where it is.
E. SB would like to know if the location is only better because it's after the fact. MH reads Ross Cudlitz report to objectively report his findings and decision. SB/DP and CEO would like Ross to attend next meeting to answer some questions.
3. Site Inspection
A. New bunkhouse is in the same location as old bunkhouse, but the peak is positioned differently, thereby reducing rainwater runoff & less soil erosion into the lake.
B. Structure is not complete, as per the stop-work order.
C. PB noted possible alternate location of structure behind primary camp, uphill, on flattened area. This area has power lines (Central Maine Power) & tree canopy.
D. PB noted little to no site disturbance resulting from the reconstruction activity.
E. MH: Beehive Lane is a difficult access road, would the equipment needed to move power lines and remove tree branches & stumps be wise? Grasso: Pictures offered into public record for clarification that 2nd location does have tree canopy. PB viewed site at a time of area that vegetation was limited. Kathleen Shaller: abutter: Power lines to Grasso can not be accessed w/o heavy equipment and his access path from the road may not be able to handle heavy equipment. Her power lines can not be relocated due to her driveway and topography, should the Board decide to consider the relocation of these power lines.
4. Maine Department of Environmental Protection (DEP)
A. Letter dated 1-11-07 from Mike Morse, Assistant Shoreland Zoning Coordinator, Bureau of Land and Water Quality.
B. Intent of letter is to provide opinion of proper administration following the review of engineering report and site visits to the property.
C. Should be considered as a regular "before the fact" application, even though it is being considered "after the fact".
D. Notes that the engineering review considered the wrong criteria and Ross Cudlitz' arguments are largely immaterial.
E. Following site visits, Mr. Morse feels the structure could have and should have been relocated further back from the shoreline.
F. Strongly urges PB to conduct a proper review and conclude the structure must be relocated.
NOTE: Because this letter from DEP was introduced "after" the last PB meeting with the applicant present, and was not sent to the applicant as well, the Board will allow oral & written response from the applicant or his counsel. The Board will then take this input into consideration before a final decision is rendered.
5. Code Enforcement Officer (CEO) input
A. Zak Horton, prior CEO during the violation and application stages, stated Mr. Grasso was cooperative at all times, he (Mr. Grasso) seemed genuinely concerned about the lake as a resource, but that as the CEO he would like to see the structure moved away from the lake if another spot was more suitably equipped to handle the construction site. Zak felt that the review by Ross Cudlitz, and his final recommendations, were to be heavily weighed before the PB should decide the application approval and the assessment of applicable fines (if any).
NOTE: Richard St. John, current CEO, has visited and discussed the site with DEP, but has not provided input to the applicant or PB. The PB will allow him the opportunity to provide oral & written response should he so choose. The Board will then take this input into consideration before a final decision is rendered.
B. CEO: Questions the before the fact and after the fact for the location of the bunkhouse. If Ross comes before the board, this is what we would like addressed.
CEO presents submittal that he reads out loud:
January 16, 2007, To the Planning Board, Please remember I came into the fact-finding process clearly at the end. The Site walk on 12/19/06 confirmed to me I could have made several suggestions or strategies to maximize the shoreline setback/vegetation replanting if I had been consulted before the fact. The ordinance is clear it is the Planning Board who shall decide what the "greatest practical extent" is. I admire the Board has asked for information from all available inputs before your due consideration. I trust your final determination is clearly defendable for future reconstruction projects on similar terrain to make it worthwhile to ask permission beforehand than seek forgiveness later. Thank you, Richard St. John, Code Enforcement Officer.
DEP
CEO: DEP is one of many inputs in this process and has no enforcement action in this town. The state has given the ordinance to the town and the PB has the ability to discuss and decide "greatest practical extent".
NOTE ANY PB MEMBER EDITS /ADDITIONS HERE: NONE
* Chairman called for a formal vote by the Board to approve "the summary of the basic facts".
Motion to approve the summary of the basic facts w/ amendments made MH/MM.
(Discussion: SB: Would it be beneficial to the PB to have CEO visit site. Richard: Would be happy to visit site, but feels you have all the information you will need for this site. SB: move on w/o it.
VOTING RESULTS: Unanimous
DUE PROCESS CONSIDERATION:
Chairman's Questions to the Board: (Read out loud) (A yes / no vote requires a hand in the air)
APPLICANT INPUT & SUBMITTALS:
Does the Board feel we have fully considered the information provided to the Board, by the applicant?
YES - Unanimous.
ENVIRONMENTAL CONSULTATION and/or PEER REVIEW:
Does the Board feel we have fully considered the information provided to the Board, by the independent third party professional engineer?
YES - Unanimous.
CODE ENFORCEMENT REVIEW:
Does the Board feel we have fully considered the information provided to the Board, by the CEO(s)?
YES - (5) with (1) abstention _________________________________________________________________________________
MAINE D.E.P. REVIEW:
Does the Board feel we have fully considered the information provided to the Board, by the Maine Department of Environmental Protection?
YES - Unanimous.
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PUBLIC INPUT:
Does the Board feel we have fully considered the information provided to the Board, by the abutters and surrounding neighbors?
YES - Unanimous.
________________________________________________________________________________
THOROUGH PLANNING BOARD REVIEW:
1 Does the Board feel we have provided the applicant with a thorough and independent review process?
YES - Unanimous.
2 Does the Board feel we have been fair and impartial during our review?
YES-Unanimous.
3. Does the Board feel we have applied our knowledge and understanding of the Shoreland Zoning Ordinance?
YES - Unanimous.
4 Does the Board feel we have always been protective of the Town's natural resources during our review?
YES - Unanimous
CRITERIA:
1 Does the Board feel we have considered the size of the lot as a criterion?
YES - Unanimous
2 Does the Board feel we have considered the slope of the land as a criterion?
YES - Unanimous
3 Does the Board feel we have considered the potential for soil erosion as a criterion?
YES - Unanimous
4 Does the Board feel we have considered the location of other structures on the property and on adjacent properties as a criterion?
YES - Unanimous
5 Does the Board feel we have considered the location of the septic system and other on-site soils suitable for septic systems as a criterion?
Discussion: No septic system on site currently. Current means of disposal is an outhouse: serves the primary seasonal cottage and the former and current bunkhouse. DP does not believe that the one flat area is the only place for a septic system. SB believes there could be an alternate site, and that this criteria isn't relevant as the applicant isn't requesting a septic permit at this time. CEO disagrees, as the ordinance criteria above requires the consideration of such a location SH: Disagrees with other possible locations other than this area, as others would be too close to the property lines or in steep terrain. RM: CEO will visit site, with applicant, to investigate a possible second location for septic system.
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6 Does the Board feel we have considered the type and amount of vegetation to be removed to accomplish the relocation as a criterion?
YES - Unanimous
* Chairman calls for a formal vote by the Board to approve "the due process consideration".
Motion to approve this due process consideration. MM/DP - Unanimous.
(RM requests PB members to consider the following: conclusions of law, on their own and asks that they come prepared to discuss at next meeting, and reminds members that they should not discuss this outside of the PB meeting)
CONCLUSIONS of LAW:
Based upon performance standards and review criteria which must be met by the applicant:
THE BOARD FINDS THE FOLLOWING BASIC CONCLUSIONS:
EXAMPLE: The Board concludes that THIS VOLUNTARY DEMOLITION & RECONSTRUCTION
WAS PERFORMED BY THE APPLICANT WITHOUT PROPER PB APPROVAL OR PERMITS.
1. The Board concludes that _______________________________________________
2. The Board concludes that _______________________________________________
3. The Board concludes that ______________________________________________
4. The Board concludes that _______________________________________________
5. OTHERS: __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
DECISION for APPROVAL or DENIAL:
Q: Does the PB approve or deny the application for the "after the fact" rebuilding of a structure located at Map U7, Lot 19B, to be located as built?
Q; If approved, does the PB require the structure to be relocated beyond the 100-foot buffer area adjacent to Thompson Lake?
Q; If approved, does the PB require any "conditions" be included?
Q: If approved, does the PB wish to include "special conditions regarding no further expansion in area or volume, nor adding any plumbing fixtures to the bunkhouse"?
CONDITIONS: (if approved)
_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Q: If denied, does the PB require the structure to be torn down or removed from the property?
EXPANSION ISSUES:
Q: Did any "expansion take place"? If yes, has the applicant submitted an application for such? If not, the CEO must be part of the application process and bring the application to the PB.
____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
FINES AND PENALTIES:
Q: Whether approved or denied, does the PB wish to assess a fine, and if so in what amount, for the actions of the applicant that include violations to the Shoreland Zoning Ordinance; for the reconstruction of a non-conforming structure within the 100-foot buffer area adjacent to Thompson Lake without first obtaining a shoreland zoning permit from the Town? NOTE: This fine would be over and above any building permit fees associated with the Code Enforcement Office.
______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
THEREFORE, the Town of Otisfield Planning Board hereby approves / denies the application of Charles Grasso to reconstruct a structure (bunkhouse), located on Map U7, Lot 19B, Beehive Lane, as described in the application and Findings of Fact. This approval / denial is to include the above-mentioned monetary fine or penalty as described above.
Dated at Otisfield, Maine, this _______day of January, 2007
Otisfield Planning Board
By: _____________________________________________
Richard L. Micklon, Chairman
NOTE: This document shall be reviewed and approved by the Town's Board of Selectmen, and recorded by the Town of Otisfield in the Oxford County Registry of Deeds.
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