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Board of Appeals Minutes 2008-04-22
6 Church Street, Gardiner, Maine 04345
{00030026-0000-0000-C000-000000000046}4152010_21423_0.png       CITY OF GARDINER

April 22, 2008

Present:                Michael Eldridge, Chair    Charlene Kinnelly    Kendall Holmes  
        John Burgess                
Absent:         Harlan Brown                Daniel Bates        

Also present:   Dorothy Morang, Recording Secretary
David Cichowski, Code Enforcement Officer (CEO)
                        Erik Stumpfel, City Solicitor

                        Nick Beaulieu
                        Patricia Hart, Planning Board Chair
                        David W. Jackson, Jr. Attorney for Appellants
                        Ronald & Bridget Condon, Appellants
                        Rebecca & Eugene Thayer, Abutting property owners
                        Andrew Haskell
                        William A. Lee III

1.)     Chair, Mike Eldridge called the meeting to order at 6:09 PM followed by the Pledge of Allegiance.  

2.)     Roll call was taken of the Board and each member of the audience was asked to introduce themselves.

Chair Eldridge introduced himself and noted that at tonight’s meeting the Board was reviewing an Administrative Appeal, which was tabled at the March 25, 2008 meeting.  He noted that the Board was looking at a decision of the Planning Board that allowed Lot 6 of the Longwood Subdivision to be removed and merged back into the remaining lot.  The Condons have appealed that decision.  Mr. Jackson, the Condons Attorney had stated the issues as whether or not the revision was major or minor and the lack of individual abutter notification.

3.)     John Burgess moved to accept the March 25, 2008 minutes as written. Kendall Holmes seconded the motion.

Vote: 4 in favor. 0 opposed. Motion passed.   

Administrative Appeal
4.)     Ronald & Bridget Condon are appealing the decision of the Planning Board on December 11, 2007 to approve a request by Nicholas Beaulieu, Applicant, to revise an approved 6-lot Subdivision called Longwood Subdivision by removing Lot # 6 from the subdivision and merging it back into the original parcel.  The subdivision, within the Residential Growth/Shoreland (RG/SL) Zoning Districts, is located on 787 Brunswick Av, City Tax Map 16, Lot 7.

        Chair Eldridge noted that at the prior meeting, the Board decided that they didn’t have enough information to make a decision and tabled this Application to receive further information.  He listed all of the items received in the packet tonight.

        Erik Stumpfel said that all of the materials may not be relevant to this meeting, but if the Planning Board had knowledge from these prior meetings that they used to make the decision that has been appealed, it can be used.

        Kendall Holmes asked if four members are enough for a vote.  Erik reviewed the Ordinance and determined that four were.

        David Cichowski, CEO, asked if it was Planning Boards his decision as to whether it was a major or minor revision that is being appealed or the Planning Board’s.  Erik said that the Planning Board has the ability to disagree with the CEO and feels that it is the Planning Board’s decision that is being appealed. John Burgess asked how that fit legally if the CEO made the decision before the meeting.  Erik said that if the Planning Board didn’t agree, they would have stopped and tabled the meeting to give abutters individual notice. He said it is typical in municipalities that the CEO screens, but the Planning Board has the right to review and agree or not.  Pat Hart, Planning Board Chair, confirmed that.

        Kendall Holmes said that he feels the Ordinance isn’t saying it’s a major revision only if the subdivision is expanded.  The Board could decide that something else causes it to be a major revision. He can’t see that taking lots out of a subdivision impacts anyone any less, especially when it changes the use of the land. It doesn’t strike him as right that there wasn’t a public hearing, but he can’t find it was clearly contrary to the Ordinance.  He would like these abutters to have their say before deciding whether it is minor/major change.  He thinks the Ordinance was using addition of lots as an example of things that would be a major change, not the only thing.  Pat Hart said that they have always reviewed removal of lot revisions before as minor and thought this should be procedural only.  Erik said the Board of Appeals is not just reviewing procedure, but whether the Planning Board made the right decision.  John Burgess said he didn’t see any real discussion in the transcript as to whether it is a minor or major. Charlene Kinnelly said that they did make reference to the Ordinance Section and made their decision on that.

        Bridget Condon said that the people who bought into the subdivision were told that the 6 lots were going to be the first phase and phase two would include 6 more lots.  She read her comments (see attached).

        Chair Eldridge asked Pat Hart if the Planning Board took into consideration financial impact.  Pat said that they receive a letter of financial capacity from the owner’s bank.  Chair Eldridge said that in reviewing some of the documents provided from previous meetings, financial impact was brought up.  He remembers a quote by Mr. Condon asking if one sixth of a subdivision is a minor or a major revision.  He said he has some concern that it impacts the neighbors and had the abutters been notified and had a chance to voice their opinions, perhaps it would have made a difference.

        Nick Beaulieu said that, as the Ordinance reads, it is the developer’s responsibility to form the association and see that it has financial capacity so it can take care of itself.  In the deeds of the five lots that have sold, it says that there is a minimum fee of $300.  He sees the issue here as one lot will not be paying an equal share.   He said in an email that he sent to Mr. Condon a while ago, he will consider contributing funds to the Association when he develops to the West.  The plan that was turned in for the proposed development to west shows that his intent is to contribute.  No where in the Zoning Ordinance or Maine State Law does it say that a lot cannot be removed.  The issue comes down to whether they were notified or not.

        Mrs. Condon said that when she read her statement, she said three lots contributing, it was because there were three lots undeveloped and their concern is if they pull out also.

        Nick said that because he is the declare ant, once the lots are conveyed from him to a buyer, they can’t pull out. They can refuse to pay, but they can’t pull out.  

        Mr. Condon said that they don’t dispute Nick’s right to not pay for Lot #6. He questions Nick’s interpretation of removing a lot. Mr. Condon said he came into the Code Office and asked whether he could remove his home from the subdivision. The CEO was not in and Dorothy called Bill Najpauer to get his opinion.  He told her that he couldn’t because there is a house on it.  If there is no structure on a lot, it could be removed.  Why do you need a subdivision in the City of Gardiner, if anyone can pull a lot out?

        Pat Hart said that the Planning Board’s role is to see that there is a Road Maintenance Association Agreement, not what’s in it.

        Mrs. Thayer said she is struggling to understand what this is all about because she thinks this is about land use.  Who pays for the road is minor compared to what you are going to do with the lot across the street.  If she buys into a subdivision, her understanding is that all of the people in the subdivision have to play by the same rules.  It’s different if there is no zoning – you could put up a store beside her.  It’s not just financial, it’s land use.  This plan was approved by the Planning Board and it said that these lots were going to be house lots with the same covenants, and you’re saying now, anything can happen.  She thinks it’s a much bigger issue than the road. She feels like, as a property owner in Gardiner, that when anything that comes before the Planning Board, the abutters have a right to know.  She said she is scared what she is hearing.  There is a purpose for a subdivision.  It isn’t fair for the people who went in with the understanding that they have a certain protection with a subdivision and then find that they don’t and you decide that it’s a minor change – minor to whom.  They were also under the understanding that six lots were approved and more housing was going in there.  The lot is behind their camp. Residential growth was their understanding of the area.  She feels it is a land use issue.  

        John Burgess asked Dave if the lot owner’s can pull out.  David said he can’t answer it.  Nick said he can answer that.  Because he was the declare ant, the Road Maintenance Association Agreement as well as the deed says that each lot conveyed runs with the land once they are transferred.  If it runs with the land they are mandated to be a member.  If you don’t pay, the Association has the right to lien your property.  It’s a typical deed.  He doesn’t see how if someone signs an agreement that they can make their own decision that they are going to back out of it.  Once it’s signed and recorded, it’s done.  

Chair Eldridge said there has been a great deal of discussion and he is still concerned about due process for the neighbors.  The Planning Board followed what they considered to be the right thing, but he is concerned that there wasn’t enough information and not a chance for people to have their input.  Are we questioning the ambiguity of the Ordinance?  He asked Erik for input.

Erik Stumpfel said if the Board determines the removal of the lot to be a major revision, you would be obligated to send it back to the Planning Board for a full hearing.  He said he would not advise the Board to remand the question of whether it is a major or a minor back to the Planning Board.  This Board needs to make this decision about what the Ordinance means in that respect.  The Ordinance does not specifically address withdrawal of lots and is arguably ambiguous to that extent.  Mr. Beaulieu does point to a definition of minor revision in Section 10 that says “any change in the activity that does not include an expansion and/or enlargement”.  He said he thinks the Board needs to review this definition together with the Section 8.  He’s not sure that that totally removes the ambiguity because of the additional language in paragraph F of Section 8.  If you decide that the Ordinance is ambiguous, that it doesn’t provide you with the right answer, you need to go back to what the purpose of the Ordinances are.  What’s the reason for doing a full subdivision review or an amendment? Is the reason to simply determine whether the amendment will cause the subdivision to become non-compliant with the original approval standards – that would be a pretty narrow reason for having a full review or is there another purpose?  Is the purpose, as has been discussed, to give the neighbors and abutters a chance to have a hearing on the amendment - is it a process type purpose.  He didn’t find any case law on this.  This Board will have to determine by a vote does this Ordinance mean that withdrawal of a lot is a major amendment or is it a minor amendment.  He said Mr. Beaulieu’s comment that there is nothing in Maine law that prohibits the removal of a lot from a subdivision is correct, but there is a process that needs to be gone through and it’s up to this Board to decide what that process should be – major or minor.

Planning Board Chair Hart asked what the next step would be.  Erik said that if the Board of Appeals decides it’s a minor revision that it’s done as far as the City’s process goes.  If they decide it’s a major revision, then it would go back to the Preliminary process for a full review and hearing.

Chair Eldridge asked if they do remand it back to the Planning Board as a major amendment, will there be assurance that the citizens of Gardiner will get their say in this?  Erik said if it is remanded back to the Planning Board, it will be the same application, but the abutters will have to be re-notified.

Mr. Jackson said that you don’t have to find it clearly contrary to the Ordinance to remand.  You can find that certain factors need to be addressed, therefore these factors – major/minor have to be taken into consideration.  He looked at the minutes and he didn’t find any findings related to the decision on a minor/major decision, only a conclusion.  The Planning Board only considered one issue - in the Ordinance there are other factors.  One of the issues that hasn’t been addressed is that Mr. Beaulieu has said that he will change the use of the lot.  At that point, the abutters should have been notified to see if they had an issue with this.  That is the concern – what’s going to happen if they start pulling these lots out of the subdivision.  The issue constitutionally is due process – the right to be heard.  The Ordinance allows any person aggrieved by the Planning Board to have standing.

Planning Board Chair Pat Hart cautioned the Board of Appeals that they do have an open case out there concerning the lot and asked that they keep that information out of this discussion.
        Kendall Holmes said he has heard a lot of talk about the road in the subdivision and who pays for plowing it and such and would say, with all due respect, that the finances among the association members aren’t Board’s concern at this meeting tonight.  And whether the subdivision laws do or don’t allow ice cream stands or mobile homes or whatever – that’s among the folks who bought into the subdivision and isn’t something that this Board needs to be concerned about either.  But he said he does think this Board and this Ordinance ought to be concerned about the fact that there was a subdivision that was approved with six lots for houses.  If I were buying into a subdivision and the lot next door that was part of the subdivision that was going to be a residential use – that gives me some certainty.  For the developer to start pulling lots out adds a level of uncertainty that he thinks does warrant a full review by the Planning Board and if the only way that we then have to make sure that the public gets its chance to comment on what the developer is doing is to label it a major change then he thinks it’s a major change.  He doesn’t fault at all what the Planning Board did.  With all due respect, this Ordinance is ambiguous but he’s willing to look at this and say, this seems like it’s a major change to him in that there’s a change in land use within this subdivision, a change of boundaries within the subdivision, a change of the size of the subdivision and he thinks that’s something that meets the common sense as to it being a major change. Based on that, he made the following motion.

Kendall Holmes made a motion that we return this to the Planning Board with our instructions that indeed this is a major change to a subdivision when lots are removed from the subdivision and that the Planning Board carry on from there following our Ordinances.  

John Burgess asked if we return this to the Planning Board as a major change, does this put it back to a full review.  Erik Stumpfel said that you would treat it as a major change.  If there are additional submittals that need to be filed, you would need to obtain them before you could go forward with the hearing.  Pat Hart said, so essentially, you would re-do the process.  Erik said, it is the same application – if it’s treated as a major subdivision revision, but there may be additional submittals that need to be filed.  Pat Hart explained the process for Application Completeness, Preliminary and Final Plan review.  

John Burgess seconded the motion.  He feels it deserves, both from Nick’s standpoint, the Condon’s standpoint and from everyone’s standpoint, the full statement from everybody.

Vote:  4 in favor. 0 opposed. Motion passed.

Chair Eldridge said they do believe it is the right thing to do.  The Board members are community members like those here and want to do the best thing for the public. He said the Ordinance Review Committee is in the process of rewriting the Ordinance.  He thanked everyone for bearing with them.        

        Chair Eldridge adjourned the meeting at 7:34 PM

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