Town of Otisfield, ME - Planning Board Minutes07/17/2007

Planning Board Minutes07/17/2007 - FOF/COL- Lawton


	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 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 July 17, 2007: * Chairman calls 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. MM/SB – Unanimous. Discussion: None. VOTING RESULTS: (5) in favor of Approving. NOTE: Chairman (RM) stated that all parties present are allowed to ask questions, provide feedback as requested, and clarify their position if necessary, but must be recognized through the Chair. No debate will be allowed. 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? Discussion: NONE VOTE: 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? Discussion: NONE VOTE: YES – Unanimous. CODE ENFORCEMENT REVIEW: Does the Board feel we have fully considered the information provided to the Board, by the CEO(s)? Discussion: Letter from CEO: concerns on septic tank. Until PB is done w/ process it is not relevant at this time. VOTE: YES – Unanimous. 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? Discussion: RM recaps letter dated 1/12^thfrom DEP stating the Lawtons are in violation of Ordinance. Wants PB to consider this as a “ before the fact” application. Mike Morse (DEP) present: Agrees with RM that his position is clearly stated and understood by the PB. VOTE: YES – Unanimous. ________________________________________________________________________ PUBLIC INPUT: Does the Board feel we have fully considered the information provided to the Board, by the abutters and surrounding neighbors? Discussion: NONE VOTE: YES – Unanimous. ________________________________________________________________________ THOROUGH PLANNING BOARD REVIEW: 1 Does the Board feel we have provided the applicant with a thorough and independent review process? Discussion: NONE VOTE: YES – Unanimous. 2 Does the Board feel we have been fair and impartial during our review? Discussion: NONE VOTE: YES – Unanimous. ________________________________________________________________________ 3. Does the Board feel we have applied our knowledge and understanding of the Shoreland Zoning Ordinance? Discussion: NONE VOTE: YES – Unanimous. _____________________________________________________________________ 4. Has the Board taken into consideration the PURPOSE section of the Shoreland Zoning Ordinance? Discussion: RM recaps Geoffrey Hole’s advice regarding omitting this question unless applicant feels Due Process is questionable. NOTE: Motion to keep this question in future FOF - COL. SB/DP Unanimous. VOTE for Question 4: YES – Unanimous. ________________________________________________________________________________ 5 Does the Board feel we have always been protective of the Town’s natural resources during our review? Discussion: NONE VOTE: YES – Unanimous. __________________________________________________________________________ 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? Discussion: NONE VOTE: YES – Unanimous. _________________________________________________________________________________ 2 Does the Board feel we have considered the slope of the land as a criterion? Discussion: NONE VOTE: YES – Unanimous. _______________________________________________________________________________ 3 Does the Board feel we have considered the potential for soil erosion as a criterion? Discussion: NONE VOTE: 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? Discussion: NONE VOTE: 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: RM wants to make sure that PB is comfortable w/ what’s there now for soils and systems, as shown on the Site Plan and submittals. All agree they are comfortable. VOTE: YES – Unanimous. _________________________________________________________________________________ 6 Does the Board feel we have considered the type and amount of vegetation to be removed to accomplish the relocation as a criterion? Discussion: RM: Did PB take into consideration the tree removal, revegetation, etc.? PB will go back to this criterion. Mike Morse requesting PB to remember to look at this as a “before the fact” situation. Dana Hanley: Asks PB to review & note that the professional consultants discuss how their opinion differs from DEP. VOTE: YES – Unanimous. ____________________________________________________________________________ * Chairman calls for a formal vote by the Board to approve “the due process consideration”. Motion to approve this due process consideration. MH/DP – Discussion: NONE VOTE: Unanimous. Based upon performance standards and review criteria which must be met by the applicant: THE BOARD FINDS THE FOLLOWING BASIC CONCLUSIONS: 1. The Board concludes that: The structure was removed or destroyed by more then 50% of the market value, prior to the destruction. Motion RM/DP – VOTE: Unanimous. 2. The Board concludes that: The structure has been rebuilt in the same location as the prior. Motion RM/SB - VOTE: Unanimous. 3. The Board concludes that: The applicant voluntarily demolished and reconstructed a non-conforming structure. Motion. RM/DP – VOTE: Unanimous. 4. The Board concludes that: The applicant voluntarily demolished and reconstructed a non-conforming structure w/ out proper permitting by the Code Enforcement Officer. Motion RM/DP – VOTE: Unanimous. 5. The Board concludes that: The applicant immediately stopped construction when he was told he had violated an ordinance, and has been cooperative throughout the whole process. Motion. RM/DP – VOTE: Unanimous. 6. The Board concludes that: The applicant did not appear before the planning board for the board’s determination of “greatest practical extent” regarding the structure location on the property. Motion RM/SB – VOTE: Unanimous. 7. The Board concludes that: The roof pitch prior to the demolition of the structure has been changed considerably so that now all water shedding from the roof is headed toward the lake. Motion DP/RM – VOTE: Unanimous. 8. The Board concludes that the present location of the bunkhouse is practical and preferable to the greatest practical extent. Motion. RM/MH – VOTE: (3) Yes. (2) No (SB/DP) 9. The Board concludes that: Section 16. Page 19 of the Otisfield Shoreland Zoning Ordinance, Letter I, # 4, Administration and fines must be discussed in the following section regarding Fines & Penalties. Motion RM/DP – VOTE: Unanimous. 10. The Board concludes that: If penalized the BOS will administer any and all fines and penalties according to Title 30A, MRSA subsection 4452. Motion. RM/SB – VOTE: Unanimous. Discussion: RM asks each Board member for their input, thoughts, or questions regarding the options of Greatest Practical Extent, and to remain focused on the application as if it were a “before the fact”. SB: Primary residence / cabin is still at water. We would have required applicant go back 100’ before the fact. GPE doesn’t apply beyond the 100’. The plateau needs to be considered. I say move it back to the 100’ flat area. MM: 100’ is too far back. Looking at it as a before the fact, I wouldn’t vote to make them move it back 100’. Does not feel that 100’ is practical. Should move back 18’, if at all. Does not feel they should go up to the plateau because they will not have room for the septic. Current primary dwelling on the shore, may need to be rebuilt on the plateau and will be required to have a new compliant septic system. MH: Moving it back 100’ is not the practical solution. I think moving it 18’ will do more harm than good. I’m leaning toward leaving it as is with conditions. The lake is my bottom line. Money spent before or after the fact is of no relevance. We have never taken money into account before. DP: Having them move it back 18’ is silly. If they are going to move it back 18’ they might as well move it 100’. He does have the property to move it back that far. That’s where I’m leaning toward. There is a spot for it outside the 100’ area so I think it needs to relocated to that spot. RM: Greatest Practical Extent is what needs to be determined. Before the fact, I wouldn’t have had them move it back 100’. Do not feel it’s practical. I am relying heavily on Peer Review. I cannot support DEP’s position of 18’. Very concerned about the area being properly maintained. The distance form the newly exposed shoreline of 18’ would be vegetated, but used as a place for people to congregate, play, picnic, and disturb soils. I cannot vote for the 100’ move because it is not practical. I can’t vote for the 18’ move because it will be worse for the soils than currently exists. I feel the best and most practical location is unfortunately, right where it currently sits. Mike Morse: In response to RM’s concerns: Re-establishing vegetation at the newly exposed 18’ will be mandatory, as will a 6’ wide meandering path. This should prevent the over-usage of this area. Also, Scott Williams report seems to have not considered having the structure moved back. Also, both Ross & Scott’s reports focus on phosphorus mitigation, which is not a criterion in this proceeding. RM: So noted that Mike Morse disagrees w/ phosphorous side of both reports. Scott and Ross’s report mirror each other in regards to environmental impact. Because Scott was hired by the town for peer review of Ross’ findings and conclusions, I cannot vote against such a credible peer review. Motion to have the structure moved 100’ back. SB/DP – Discussion: NONE VOTE: 2 Agree, 3 Disagree (RM, MH, MM) DEFEATED Motion that the board concludes that the location of the structure is practical and preferable to the greatest practical extent as is currently located. MH/RM – Discussion: NONE VOTE: 3 yes, 2 no (SB/DP). Motion that the applicant is in violation and according to the Otisfield Shoreland Zoning Ordinance (Section 16, letter I, #3) and Title 30 A, MRSA Subsection 4452, the Board of Selectmen will administer any and all actions, fines and penalties. RM/ MM – Discussion: NONE VOTE: Unanimous. APPLICATION APPROVAL: 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? A. Motion to approve the application. MH/MM –– Discussion: NONE VOTE: (4) Yes, (1) No- D.P. Q: If approved, does the PB require the structure to be relocated beyond the 100-foot buffer area adjacent to Thompson Lake? A. Motion to leave structure where it’s placed. MH/RM – Discussion: NONE VOTE: (3) yes, (2) no (SB/DP) Q: If approved, does the PB require any “conditions” be included? A. Discussion: NONE - VOTE: Yes. See following conditions. 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”? Discussion: NONE A: VOTE: Yes. See following conditions CONDITIONS: 1. Motion that recommendations by Ross Cudlitz, Scott Williams and CEO to be followed by applicant regarding erosion control measures, including an approved inspection schedule by the CEO. RM/DP – Discussion: NONE VOTE: Unanimous 2. Motion to have CEO approved gutter system regardless of roof pitch. SB/DP – Discussion: NONE VOTE: Unanimous 3. Motion to change the pitch of the roof and change it so the gable ends are to the side away from the lake. SB/DP Discussion: NONE VOTE : 2 Agree, 3 Disagree. DEFEATED 4. Motion to accept the conditions as proposed by Scott Williams. RM/MM – Discussion: NONE VOTE: No votes. DEFEATED 5. Motion that the board authorize the CEO to work w/ the applicant to address the intermittent stream crossing and report back to the PB as to his findings and recommendations, and Board approval. RM/ DP – Discussion: NONE VOTE: Unanimous. 6. Motion that no further expansion takes place on this structure from this day forward. RM/DP – Discussion: NONE VOTE: Unanimous Motion to approve all conditions: RM/DP – Discussion: NONE VOTE: Unanimous. 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. A: – Discussion: RM: Conflicting and unsubstantiated evidence. Yes there has been expansion, all parties agree that an expansion has taken place and no two parties agree to the exact expansion. Applicant is stating they had a 17 x 18 ½ structure, and has photos as evidence. Town tax cards state 9’ x 15’. RM concludes that they cannot determine size at this time. CEO agrees. Motion to defer past expansion issues to the CEO for his consideration, and allow public input within 30 days. If after 30 days, no public input proves applicant is in error, the CEO will close the file and the expansion issue is considered final. RM/DP – VOTE: (3) yes (2) No - MH & SB FINES AND PENALTIES: Per the Board’s vote on Page 9, Conclusion #11: The Board concludes that: If penalized the BOS will administer any and all fines and penalties according to Title 30A, MRSA subsection 4452. Applicant is hereby advised to contact Marianne Izzo-Morin to be added to the Board of Selectmen’s agenda, for their administration of any fine or penalty associated with this violation. THEREFORE, the Town of Otisfield Planning Board hereby approves the application of Ronald Lawton to reconstruct a structure (bunkhouse), located on Map U7, Lot 19E, Beehive Lane, as described in the application and Findings of Fact. This approval is to include the above-mentioned conditions and enforcement procedures as fully described above. These proceedings are dated at Otisfield, Maine, this 17th day of July, 2007 Otisfield Planning Board By: Richard L. Micklon, Chairman Date of signature: 8/21/2007 Approved 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.