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.
………………………………………………………………………………………………………………………….
May 1, 2007
Map U7, Lot 19E, Beehive Lane
Applicant Name: Mr. Ronald Lawton, Map U7, Lot 19E.
Represented by: Dana Hanley & Associates, Legal Counsel for the applicant
Dana Hanley, Rachael Pierce
PROJECT DESCRIPTION
Shoreland Zoning – Thompson Lake
Issue: Reconstruction of a building within 100’ of the shoreline, without town or state permits.
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)
“Any non-conforming structure which is located less than the required setback from the normal high waterline of a water body, tributary stream, or upland edge of a wetland and which is removed, or damaged or destroyed by more than 50% of the market value of the structure before such damage, destruction or removal, may be reconstructed or replaced provided that a permit is obtained within one year of the date of said damage, destruction, or removal, 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 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: 10-17-06
- PB Reviewed submittals by Hanley
- RM: disclosed that he is now on the Board of Supervisors for the Oxford County Soil & Water Conservation District. No objections were voiced or expressed.
- Exhibit A, Ross Cudlitz, P.E. (report submitted)
- Exhibit B, tax map, (building has been moved 4’ back from the water on sonatubes. It has no water, does have electric. Dana says tax map is inaccurate (size).
- Exhibit C, picture of old camp shows that the orientation on tax map is wrong.
- The foundation has been moved back 4’. The old 2’ porch is now probably a 4’ porch. Resulting in a 2’ betterment in setback from the water.
- Mike Morse from DEP has done a site walk w/ Zak Horton (CEO). Dana will have Ross contact Mike and compare thoughts on site.
- PB: Peer review by Scott Williams, Aquatic Biologist, needed for phosphorous numbers provided by Ross.
- Ross and Scott will do a site walk and go over phosphorous numbers and structure relocation regarding “greatest practice extent”
PB meeting: 12-05-06
- Report from Scott Williams, Lake & Water Resource Management Associates submitted.
- Said structure is a secondary dwelling).
- Ross Cudlitz, Engineer from Oxford County Soil and Water Conservation District has spoken w/ Mike Morse from DEP.
- Discussion: #6, Greatest Practical Extent. *Two separate locations were found. #7 A, First problem is the road itself. Neighborhood was formed prior to subdivision laws. Discussion regarding severity of road condition. If the stream continues in the direction it currently goes in, no permit is required. If stream is redirected a permit is required.
- Dana Hanley: The road condition was not a result of anything the Lawton’s had done. They will support upkeep to a certain extent.
PB meeting: 12-19-06
- Scott’s report states that if they do the recommended items, it will be better then it was prior to being torn down. Regarding its location: To the greatest practical extent, the structure is where it should be.
- RM: PB is curious as to why you would build w/o a permit. Dana: The answer to that is that the individuals have been there for 40 years, seen a lot of renovations, and never thought about it. It’s a different generation.
- PB would like to know DEP’s position on this and add it to the findings of fact.
- Conflicting size with the structure: Town tax map showed a 9 x 15 foot structure, applicant has 17 x 18 ½ foot structure. This will be addressed.
PB Site Walk: 12-19-06
- Said structure is considered a bunkhouse.
- Previously it was 0’ from the water, w/ the deck extended beyond the shoreline, currently it is approximately 3’ back from the water w/ the deck shortened.
- Property lines were defined.
- No running water or facilities at location.
- The intermittent stream is a problematic area. (This area needs to be addressed) The Lawton’s did not create this disturbance, but are open to possible solutions on fixing it.
The Lawton’s had their land surveyed and it was determined that the area where the outhouse stands, is considered a Right of Way.
- The ROW is not part of Ohuivo Road, but it does eliminate the possibility of relocating structure to this area.
- Roof system runoff needs to be addressed by a professional.
PB meeting: 03-20-07
- Mike Morse, Assistant Shoreland Zoning Coordinator for DEP in attendance. There is a second location that may be considered “greatest practical extent”. Approximately 18’ between where it currently exists and the ROW. Mike suggests Board see this as a “before the fact application”. Otherwise money becomes an issue.
- RM: Has CEO identified the potential for a future septic leach field? CEO: No, but will revisit property and do a site evaluation. A licensed Soil Scientist will be necessary to determine soils and system design.
- Dana: The Lawton’s are willing to fix the stream issue at their own expense per the recommendation of Ross Cudlitz and Scott Williams.
- Mike: Keep in mind that the “greatest practical extent” is the issue; the intermittent stream fix is not a bargaining chip.
- RM: Does DEP feel if you move the structure, it would create more disturbances? Mike: A minimal amount of trees will need to be removed if structure is located. The first 20’ from buffer is the most critical.
- DEP has the right to ensure the towns properly administer the Shoreland Zoning Ordinance.
RM: ANY ADDITIONAL LETTERS-SUBMITTALS-REPORTS?
(NEW SITE EVALUATION REPORT / CEO SITE WALK / ETC.)
BOARD MEMBERS-NO TT-NO CEO-NO DEP-NO HANLEY-YES
(1) Submittal from Dana Hanley: Report from licensed Site Planner, re: future septic system location and soils report / as per requested by Board per the SZ Criteria.
(Based upon the application, prior public meetings, and submittal reviews)
THE BOARD FINDS THE FOLLOWING BASIC FACTS:
1. Application
A. Mr. Ron Lawton, is the owner of the property at Map U7, Lot 19E
B. Previous structure was 0’ from the water, w/ the deck extended beyond the shoreline; currently it is approximately 3’ back from the water w/ the deck shortened.
C. Structure was torn down and then rebuilt, without a permit.
D. There is a 100’ setback requirement. 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”.
F. Conflicting structure size: Town tax card shows a 9 x 15 foot structure. Applicant has built a 17 x 18 ½ foot structure, claiming to be same size as original one prior to demolition.
2. Applicant testimony, representation, and submittals
A. Applicant claimed to not know permit was necessary.
B. The rebuilding process was done by hand-carrying materials and care was taken to minimize soil disturbance.
C. Submittal from Ross Cudlitz, Professional 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.
D. Submittal from Hanley & Associates regarding septic site evaluation dated April 26, 2007.
3. Planning Board Peer Review
A. Scott Williams, Aquatic Biologist, Lake and Water Resource Management working on behalf on the Town of Otisfield, provided peer review for the PB. It was determined that no phosphorous run off or complications have resulted from the new structure.
4. Site Inspections
A. PB noted little to no site disturbance resulting from the reconstruction activity.
B. PB noted a possible second location, by outhouse; Hanley shows it is in the ROW.
C. Mike Morse: There is a second location that may be considered “greatest practical extent”. Approximately 18’ further back from the normal high water line then the structure’s current location.
D. If stream is redirected or reworked in any way, a permit is required.
E. RM: Needs more info re: possible future septic tank & leachfield.
5. Maine Department of Environmental Protection (DEP)
A. Letters to the PB from Mike Morse, Assistant Shoreland Zoning Coordinator, Bureau of Land and Water Quality.
B. Intent of letters 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. Following site visits, Mike Morse believes there is a second location that may be considered “greatest practical extent”. Approximately 18’ further back from the normal high water line then the current location.
E. The language within the purpose statement in the ordinance does not hold the same regulatory weight, as do the standards within the body of the ordinance, particularly the section on non-conformity.
6. Code Enforcement Officer (CEO) input
Richard St. John, CEO, input is as follows:
A. 5-1-07 letter to the Planning Board was submitted into public record.
B. CEO has concerns regarding 30% expansion issues
C. CEO recommends compliance w/ conditions regarding storm water management as recommended by Scott Williams and Ross Cudlitz.
D. CEO has concerns regarding subsurface wastewater disposal system.
NOTE ANY ADDITIONAL PB MEMBER EDITS /ADDITIONS HERE:
PB agrees that additional information needs to be submitted to the CEO regarding 30% expansion; the Board agrees this is a separate issue from “greatest practical extent”. Once CEO has supportive documentation of structure size(s), he will address his position with Board for approval/denial of application request for expansion/construction as built.
RM: Septic system / leach field was not considered prior to this evening. Would like to look at site again to consider DEP request for structure relocation, and potential for future septic system for both the main cabin and bunkhouse. Another Public Site Walk. Scheduled for Wed. March 16, 2007 @ 5:00 PM
SCHEDULED FOR NEXT MEETING: * Chairman calls for a formal vote by the Board to approve “the summary of the basic facts”.
Motion to approve/ deny the summary of the basic facts w/ amendments made.
Discussion:
VOTING RESULTS:
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?
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?
CODE ENFORCEMENT REVIEW:
Does the Board feel we have fully considered the information provided to the Board, by the CEO(s)?
_________________________________________________________________________________
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?
____________________________________________________________________________________
PUBLIC INPUT:
Does the Board feel we have fully considered the information provided to the Board, by the abutters and surrounding neighbors?
________________________________________________________________________________
THOROUGH PLANNING BOARD REVIEW:
1 Does the Board feel we have provided the applicant with a thorough and independent review process?
2 Does the Board feel we have been fair and impartial during our review?
_________________________________________________________________________________
3. Does the Board feel we have applied our knowledge and understanding of the Shoreland Zoning Ordinance?
____________________________________________________________________________________
4. Has the Board taken into consideration the PURPOSE section of the Shoreland Zoning Ordinance?
____________________________________________________________________________________
5 Does the Board feel we have always been protective of the Town’s natural resources during our review?
__________________________________________________________________________________
CRITERIA: The Board fully understands that the Shoreland Zoning Criteria must be the determining factor when considering the interpretation of Greatest Practical Extent, therefore;
1 Does the Board feel we have considered the size of the lot as a criterion?
_________________________________________________________________________________
2 Does the Board feel we have considered the slope of the land as a criterion?
_______________________________________________________________________________
3 Does the Board feel we have considered the potential for soil erosion as a criterion?
_______________________________________________________________________________
4 Does the Board feel we have considered the location of other structures on the property and on adjacent properties as a criterion?
__________________________________________________________________________________
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?
_________________________________________________________________________________
6 Does the Board feel we have considered the type and amount of vegetation to be removed to accomplish the relocation as a criterion?
______________________________________________________________________________
* Chairman calls for a formal vote by the Board to approve “the due process consideration”.
Motion to approve/deny this due process consideration.
Conclusions of Law to follow at a later date
| 
