6 Church Street, Gardiner, Maine 04345 James Montell, Chairperson
Dorothy Morang, Recording Secretary
 CITY OF GARDINER PLANNING BOARD
Gardiner Planning Board January 19, 2005
City of Gardiner, Maine Regular Meeting 6:00 PM
ROLL CALL
Present: Pat Hart James Montell Deborah Willis Pamela Mitchel
Edward Lawrence
Absent: Allie Vigue Bob Moody, Alternate
Also Present: Barbara McPheters, Code Enforcement Officer (CEO)
Dorothy Morang, Planning Board Recording Secretary
Jan Boucher, Surveyor – Cornerstone Professional Surveying, Inc.
Kenneth Gardiner Hazel Ferland Lorri Tourtelotte
Paul Marsella Jackie Marcella Barb MacDonald
Scott Kaufman Rebecca Fuller Cindy L. Sirois
Arlene Emery-Kaufman David Fuller
Deborah Willis made a motion to call the meeting to order at 6:05 PM. Pam Mitchel seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion to elect Pat Hart to act as Chair for the meeting. Jim Montell seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
Roll call taken.
Acting Chair Hart explained to the public and applicants the meeting procedures.
Deborah Willis made a motion to accept the December 15, 2005 minutes. Jim Montell seconded the motion.
Vote: 4 in favor. 0 opposed. 1 abstained (Pat Hart – was not at the meeting). Motion passed.
Pam Mitchel made a motion to accept the January 5, 2005 Site Walk minutes as written. Pat Hart seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
Acting Chair Hart read item 4 from the Agenda.
HEARINGS AND PRESENTATIONS
4.) Public Hearing – Preliminary Review
Jan E. Boucher of Cornerstone Professional Land Surveying, Inc. acting as agent for Jeremy Purington is seeking preliminary approval of a five (5) lot subdivision named Rolling Dam Brook Subdivision at 303 Marston Road on City Tax Map 17 Lot 15 in the Rural/Resource Protection (R/RP) Districts.
Acting Chair Hart noted that in December 2004, the Planning Board declared the Application complete and a site walk was conducted on January 5, 2005. She read the project description.
Jan Boucher described Preliminary Plan for a 5-lot sub-division (Rolling Dam Brook Sub-Division) to the Board. It is located at 303 Marston Road, City Tax Map 17, Lot 15, in the Rural/Resource Protection Zoning Districts. The average lot size is 80,000 square feet. Twelve (12) acres behind the lots near Rolling Dam Brook will be protected as open space. There will be individual wells and septic systems on sites.
6:08 PM meeting opened to public.
Paul Marsella, an abutter expressed his concerns for the area concerning the wetlands, the number of units and septic systems. Jackie Marsella indicated that she works for an environmental lawyer and she showed him the plan. She had concerns about an area she considered wetlands. Jan Boucher indicated that they were forested wetlands, which are exempt. Jackie asked that the words “one single family, detached residential dwelling unit per lot” be added to the covenant. She also had concerns about the road and wanted note #10, Driveway Easement removed. She gave the Board a letter from another abutter, Ann and Richard Kowalski who are in New York and unable to be here. The Kowalski’s concerns are that five new houses will negatively alter the rural character of the
neighborhood and interfere with the quiet enjoyment of their home because of increased traffic, noise, animals, construction activity, etc. They are also concerned about five new wells and septic systems in an area located near the Rolling Dam Brook.
Barbara MacDonald, a property owner on the other side of the road indicated that she is opposed to the project. She is concerned about the rural area becoming cluttered with buildings, the wetland and wildlife. She hopes the City will develop plans to deal with sprawl. Acting Chair Hart said that the Planning Board could not deal with the issue of sprawl tonight but suggested that she get in touch with the City to look at that issue.
Lorri Tourtelotte, who lives across from the house currently being built on the corner of Marston Road and Capen Road, indicated that she is not opposed to the project. Her concern is the water in the road near her property. She would like the road to be in better shape.
Barbara McPheters, CEO, indicated that she had received a call from Pat Gleason who lives on the other side of the road from the proposal. Pat has concerns about the driveway locations and the possibility that headlights might shine into her house and also the hills and curves of the road.
Barbara McPheters indicated that she asked Pat Gilbert, Director of Public Services and the Police Chief to review the plan. They did not have any concerns at this time.
Acting Chair Hart read the Kowalski’s letter into the record.
6:35 PM Public Hearing was closed.
Acting Chair Hart reviewed the Finding of Fact with Board members for Planned Residential Development.
Barbara McPheters shared some of her thoughts. She mentioned that the lot size, frontage, side and rear setbacks are not in conformance with the Rural dimensional standards, but the Board can reduce those requirements. She also indicated that the required buffer area had not been identified on the plan, but the Board may wish to consider the open space as part of the buffer area. She also mentioned that the property might be within the “Marston Road Tree Canopy and Pasture” as identified in the Comprehensive, Section 21, Scenic Resources. A copy of the referenced survey has not been located at this time. The Applicant has noted on the plan that 8.8 acres are available for open space after deducting resource protection and flood plain areas. Barbara indicated that the wetland areas and
similarly limited areas should also be deducted. Jan Boucher said that some of the wetland areas are forested wetlands and are therefore exempt.
Jan Boucher said that in speaking with Bill Najpauer, under the Planned Unit Development (PUD) found in Section 2 of the Zoning Ordinance they can reduce the lot size. Jan said that most of the lots are ok. He listed the net square footage for each lot. Number 1 – 77,000; 2 – 88,000; 3 – 83008; 4 – 63,000; & 5 – 102,000. He said the gross includes everything including wetlands. The net is minus those things exempted by the Ordinance. He said that in the Rural District, all new sub-divisions are required to meet the PUD standards. He can increase the lot size and still be out of the Resource Protection District.
Jim Montell asked for clarification of the driveways and note # 10 as referenced previously concerning a possible easement. Jan showed Board members where the driveways would be placed and the need for the possible easement. Jan described the land area in the back and indicated that some of it is forested wetlands, which are exempt. A licensed site evaluator did all test bits and all meet code and setbacks for the septic systems and the wells will be 100’ up from the test borings or 200’ down. Jim asked why the first lot was just sold off and not a part of the sub-division. Jan explained that the first lot divided does not create a sub-division.
Jan Boucher said that he has no problem with including in the covenant the words, “one single family, detached residential dwelling unit per lot”. He indicated that there would be no mobile homes, just stick built or modular. The well symbol was not marked on Lot #2. Jan will add that. He also added that he might ask for a waiver of the required landscape plan and to ask for the Density Bonus so as not to have to push the lot lines out. There are no roads in this plan.
With respect to utilities, they plan to use existing poles. The development will have drilled wells only. They also may ask for a waiver for required monuments. All of the water is planned to drain towards the brook and all run off from the driveways will flow into the forested wetlands. The only trees to be removed will be to gain required site distances. They do not expect lights spilling over onto neighbors’ properties. The lots will have individual septic systems. Although there is no formal Stormwater Management Plan proposed, they plan to leave all of the natural forested areas, which they feel is sufficient to meet this requirement. This is noted on the plan.
This is a low traffic volume road and the Applicant will work to ensure that access is safe.
Acting Chair Hart read through the CEO’s responses to the Criteria for a Sub-Division. She noted that the Board can give the Applicant guidance and should he come back for final approval, we hope that the information provided will be helpful. The zoning issues, solid waste, comprehensive plan issues and others are referenced in the Memo of the CEO to the Planning Board Members dated 1/15/05. She also noted that this is not a final decision tonight.
The Applicant said that he would get together with the CEO on the wetlands and forested wetlands and comprehensive plan issues.
Pam Mitchel made a motion to approve the Sub-Division Preliminary Plan with the suggestions made by the CEO in her Findings of Fact. Deborah Willis seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
7:50 PM Acting Chair Hart called for a short break.
7:55 PM Meeting resumed.
ADMINISTRATIVE MATTERS
5.) Remand from Board of Appeals
The Planning Board will act upon the Scott and Arlene Kaufman Administrative Appeal regarding an application filed by Hazel Ferland, owner of Sunspot Tanning Salon at 73 Cobbossee Avenue on City Tax Map 22 Lot 35A in the Planned Development (PD) District as it relates to driveway width, parking issues and water flow, stormwater management, erosion control and contours as directed by the Board of Appeals remand decision.
Acting Chair Hart said that in reviewing the Board of Appeals Meeting Minutes, the CEO Memo and the Board of Appeals Written Decision, it appears the Board of Appeals did not have enough information to determine finding of fact so we have to go back to address specific items. We can accept new evidence if it relates to these issues or to clarify these issues. The Planning Board can uphold the original decision, uphold with conditions or reverse the decision. She also indicated that there had been a question that some of the Planning Board members were not at all of the meetings concerning this Application. Four of the members here tonight were at the last meeting where the final vote was taken and the others were at the next to the last meeting. She asked if everyone was comfortable with that. They all said yes.
The first item discussed was Driveway Width. The Board of Appeals did not have sufficient information to determine if the Planning saw it as a 1 way or 2-way driveway or that the circulation was safe and convenient.
Deborah Willis said she attended the Board of Appeals Meetings and what she heard was it was not clear whether this is a driveway or an entrance. The Board of Appeals thought that the Planning Board made an assumption that it was a driveway, but the Planning Board did not say one way or the other, they were more concerned about the buffers, turn-around and site distance, etc.
Acting Chair Hart asked the Applicant, Scott Kaufman if he had any more information that might clarify this or any concerns. Scott said that he had spoken with David Allen who is with the Division 4 Office of the Maine Department of Transportation (MDOT). Scott referenced the MDOT Access Management Handbook’s definition of a driveway vs. an entrance. A driveway has less than 50 vehicle trips a day and an entrance is 50 or more. You need 15’ – 16’ at a minimum for two cars to get by each other. He believes it to be an entrance. With three beds there is the potential for 12 trips per hour or 144 vehicle trips per day for the business, not including the residence trips. Scott said that the 144 vehicle trips seems high, but you don’t measure access management on what
you do but the potential. With the 10’ buffer requirement and only 28’ available by the survey, it is not enough.
Deborah Willis looked at the original Application and noted that it was amended by the Applicant to 15 vehicles per day or 30 vehicle trips for the business use. Hazel Ferland indicated that a lot of people come together. She has about 5 customers a day. She is selling the tanning both and will have only 2 tanning beds.
Barbara McPheters, the CEO noted that the Application indicates an average of 6 vehicle trips per day for the residence. Scott said that MDOT indicated 10 trips per day are the average.
Pat said it comes down to the 50 vehicle trips per day. Deborah said from what she can see in the Ordinance definitions about entrance and driveway, Pat has it exactly right. What we have to look at is what it is serving and what is the capacity there. Ed Lawrence agreed. Pat said that she remembers the Planning Board’s discussion was centered around the cars moving on this thing – whatever we called it and not the flow. Deborah agreed and they didn’t determine whether it was a driveway or an entrance. Pam Mitchel said that they used the Applicant’s information and not the maximum number of vehicle trips per day.
Jim Montell thought that maybe the Planning Board thought it as a driveway.
Ed Lawrence thought that the Planning Board used driveway and entrance interchangeably. He asked if they could find out what exactly the MDOT book said. Barbara McPheters, CEO said she would find out.
Hazel asked why they were counting 1 customer as 2 trips. Pat Hart said that that is how the standards define it.
Pat said that if 2 cards need to pass on the narrow area, it would be a safety issue. Hazel asked what area Pat was talking about, the whole driveway or just the entrance. Pat said the whole driveway – the point between the road and the parking spots. Deborah said the reason that that is important is because a driveway width within a highway right-of-way must be between 12’ and 22’ and entrance width must be between 22’ and 30’. After a lengthy discussion, the Board members all agreed that it is a driveway, but several feel it is not safe.
Deborah Willis made a motion that it was our understanding at the time and our discussion at the time that this was a driveway and this met the 12 – 22 feet requirements that the driveway width within the highway right-of-way shall be 12 – 22 feet. Pam seconded the motion.
Pat Hart asked, “all in favor” and Deborah Willis spoke at the same time asking if the Secretary, Dorothy, got all of that. Dorothy said not every word, but she could go to the tape. Deborah said she would shorten it.
Deborah Willis made a motion that the Planning Board treated this like a driveway and determined that it was within the driveway width required.
Deborah and Pam withdrew the original motion and second.
Deborah Willis restated the motion that the Planning Board treated it as a driveway, it met the requirements of a driveway. Pam Mitchel seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
Pat said the next part of this is internal circulation – was it wide enough. Board members reviewed sections in the Land Use Ordinance, Section 5, page 18 and others and discussed them. Pat said that the Ordinance requires that access to the site has to be safe and convenient. This is what led us to do the site visit.
Deborah Willis said that she passes by this property almost every day as she goes to and from work. She has had cars back out in front of her from the business. She’s seen cars cueing up and up to 3 cars parked in the driveway. She asked the City Attorney if it was appropriate to use this new evidence in her decision making. He said yes. She said she is concerned. She voted for this application in its totality, with this concern. It bothers her that she has come by this business at least once a week and seen a violation of the requirements. It’s not working. Pat Hart asked Deborah, so you believe just from what she has seen that there is not enough room on the driveway to accommodate this use. Deborah said no, she didn’t. She said last week she saw cars
trying to turn around in the driveway to get out and cars cued up while they were trying to do this. Mrs. Ferland had said she would speak to her clients and have them park appropriately. Deborah went on to say she had seen the vehicles parked beside the garage, a maximum of 3, not every day, but with regularity. She’s been keeping tract since October and it appeared to start when Mrs. Ferland had a sale and got more customers, through the holiday season particularly. She said the car that backed out in front of, she assumes, was because there was already 2 vehicles parked in the driveway blocking the driveway so that nobody could get up through the driveway to the turnaround.
Pat Hart said she had been by the property several times to the Middle School and has seen cars parked out front.
Ed Lawrence said that he makes quite a few trips by the property and he has noticed that there have been two or three vehicles parked on the side and one parked one night beside the garage where the buffer strip was supposed to have been.
Pam Michel made a motion that she does not believe that the access way is safe and has sufficient capacity to avoid cueing of entering vehicles from the street, citing the Site Plan Review, Traffic Access 4, B. 7. Pam Mitchel amended her motion 4, B. and B. 7. Deborah Willis seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
The Board members addressed Parking Standards. Pat Hart asked Deborah Willis if she could give the Board and idea of what the Board of Appeals were looking at here. Deborah asked Mr. Kaufman if he raised the issue that Mr. Vigue had moved a parking stall into the buffer zone. He said yes, Mr. Vigue had revised the parking space and it had ended up in the buffer zone and a lot of that derived from the topography. Members of the Appeals Board had noted the incline out there and weren’t sure about the feasibility of those parking spaces with the topography because it wasn’t put on the plans and they felt it was a little mish-mash and crunched in and he mentioned that he had used Autoturn, a program MDOT uses for safe movement of vehicles and this did not pass.
She asked Mrs. Ferland if she had said that the Planning Board hadn’t moved the parking spot into the buffer zone. Mrs. Ferland said yes.
The Board of Appeals talked about Pat’s very big issue, specifically referencing the minutes about the movement – once you got up in there – one car parked next to the building an would be unable to open the door.
Pat said she her opinion and others had theirs, but the Planning Board did not say which Ordinance section this Application met. She said that they have an opportunity to uphold the original decision, uphold our original with conditions or reverse our original decision. They need to link their decision to the specific ordinance and talk about whether it meets the safe and convenient plan. She asked Mrs. Ferland if she had submitted an updated parking plan as mentioned at the end of the Planning Board’s meeting. Mrs. Ferland said no. Pat said she guessed the Board had not required it of her. Mrs. Ferland said that she was selling the tanning booth and would require less parking spots. Pat said that they need to stick with her original Application. She should ask the
CEO what to do.
Pat passed a copy of the plan around showing the general idea of where they moved it, but it is not to scale and scale matters. She asked Mr. Kaufman if it was his opinion that that parking spot was in the buffer area itself and that it is physically impossible to go up the hill. Deborah said they moved parking #4 behind #3.
Jim Montell said he recalled that when they approved this, they felt it barely met the standards and they didn’t have a clear definition and did we have correct data? Deborah said and other agreed that they didn’t talk about moving #4 in the buffer or the width between the building and the buffer. Pat said we didn’t condition it. Deborah added that we should have measured it in hindsight.
Pat said the number of spots met the requirements according to the Application. It was the location and the ability to maneuver and then they learned that the tree was behind #5 and the steepness of the hill. She didn’t understand until she got there about the tree or the steep hill at the time. Jim asked if the new evidence that Deborah and Ed introduced a few minutes ago is fresh and relevant to this location. Pam said people aren’t using the parking this way. Jim said that that is the responsibility of the owner. Pat said that to the extent that it is not easy and so people are backing out, that’s the by-product of it not being easy. So we can approve all of those spots but it what it comes to is if people can’t get past the tree in that area, they park on
the side of the driveway. They looked at the section in the Ordinance on Layout and Design and Internal Circulation. Deborah said that based on the evidence and what she has seen since this Application was approved, it is not safe and convenient. It is not being used by the customers. They are not getting their vehicles up in and out of there. They are backing around. She can’t tell from the map if they put parking spot #4 into the buffer zone. A Board member did it and we approved it. We do try to help Applicants. But this time we failed to see that we put that into the buffer. Pat said that what we usually do in those situations is to say to the applicant if you have suggestions or a change please bring the map back to the CEO and the CEO will decide if you are in compliance with the standards. We did not do that.
Pam Mitchel made a motion that we accept the number of parking stall with the condition that they meet the Performance Standards and that the Applicant bring a new, to scale drawing from her surveyor showing the location of the stalls and that it be approved by the CEO and that the CEO makes sure that it meets the Performance Standards. Deborah Willis seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
Next they looked at Internal Circulation. Pat read from the Ordinance that the layout of the site must provide for safe and convenient circulation throughout the lot. She said the Planning Board looked more at aisle width more than this. Deborah said that based on the new evidence that she has seen since we approved the application, it is not doable. It’s not working. The layout design of the parking areas must provide for safe and convenient circulation of vehicles throughout the lot and I don’t think that that is happening. She wondered if it was not happening because they can’t or is it that they don’t want to.
Deborah Willis made a motion that based on our further discussion and consideration of the Criteria 4. d. 3, that the layout and design of the parking area must provide for safe and convenient circulation of vehicles throughout the lot, it does not. Pam Mitchel seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
Pat Hart asked the CEO if this meant, procedurally that they were overturning the original decision? Barbara said she thinks, effectively, that is what you have done. But she will need to confirm that with the Town Attorney, but it does indicate under the Site Plan Review Criteria that they need to meet all the criteria in order for it to be approved.
Deborah Willis said she thought the Planning Board had to address each of the three issues as remanded to us and then make a decision to uphold our original decision, uphold with conditions or reverse the decision. Pat said she thought it was just specifically limited to these three items. Barbara said it was her understanding from her discussion with both Bill Najpauer and the Town Attorney that you were only going to address the three criteria. You weren’t going back and vote again on the whole application, but effectively, what you’ve done is reverse your original decision based on these votes today.
The third item is #8 on the Applicant’s appeal. and this item addresses water flow, stormwater management, erosion control and contours – to address whether the surface water flow suggested on the survey dated August 18, 2004 entitled Preliminary Plan Standard Boundary Survey satisfies stormwater management and erosion control standards of the Site Plan and contours.
Mr. Kaufman said the property was re-graded before the Surveyor, Mr. Libby went out there. Gravel was put done and dug up closer to his property and as far as construction you will have pavement out there, asphalt he would hope, for designated parking areas which will add to the water flow. There is increased water flow on his property from this. His concern as far as contours and topography was specifically for the parking and the feasibility and the maneuvering of it. It is a requirement that it be on the sheet whether it is new construction or not.
Pat asked Mrs. Ferland if she planned to pave the driveway. She said she planned to pave the whole driveway. She said she got a permit a year and a half ago with the building permit to fix her driveway.
Deborah Willis said on the Site Plan Review Permit Application checklist, it requires topography of a site at appropriate contour intervals, 1’, 2’, 5’ depending on the nature of and use of the site. If we didn’t need the topography we should have asked for a waiver. We went right over this. Pat said when it came up, the previous CEO said that it was not needed. We didn’t specifically acknowledge it and say we didn’t need it. Ed Lawrence asked who checks off this Check-Off list? Pat said the Applicant. Pat asked if the application indicated it was going to be an asphalt surface. Deborah didn’t remember it.
Pat said we missed this. They talked about the spray paint for the stalls. She asked Mrs. Ferland. Mrs. Ferland said when she got her permit she got it to widen the driveway and it was paved. Pat said when this was issued, the CEO did not know about the business? Hazel said he knew she had approval for the business. Pat clarified that she never had approval to open the business. Deborah said that the map did not have contours and the Planning Board failed to address it regardless of whether or not it was paved. Pat asked if they could skip the runoff and talk about the contours? Ed said he didn’t think they could. They would have to worry about erosion once they know what is going to be constructed – where the existing water flow is now and where it is
going to be after it’s developed.
Mrs. Kaufman said the problem is it has already been changed to a great degree and there is already a huge amount of water, even without the asphalt, coming down our driveway and pooling at the end of our driveway to the point where the sewer rate can’t accommodate it.
Pat said we definitely need the contours, so we ask for that. Can we ask about the planned surface and we have to make sure that both of those things meet all the Performance Standards for erosion control and runoff. We need more information on the contours and need to know the structure and the impact. Deborah said it requires it in the Site Plan Review section of the Ordinance, Section 5, h. 5. i. The Application didn’t have it so we should have asked the Applicant for it or a waiver.
Deborah Willis made a motion that the Application doesn’t meet the requirement of Section 5, h. 5.i to have a topography of the site at appropriate contour intervals. Pam Mitchel seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
Deborah said we need this because if we don’t have the contours, we won’t be able to address whether the surface water flow suggested satisfies stormwater management and erosion control. Pat said we need to know what the plans are specifically and the impact. Pam said so we want information on the substance of the driveway, drainage and the impact of the driveway on drainage?
Barbara, the CEO suggested that they not limit it just driveway because they are talking about the whole parking area.
Mr. Kaufman asked who would put their stamp on the stormwater capacity or runoff. Ed Lawrence said it would be an engineer. A surveyor could do contours.
Barbara, the CEO said that the Ordinance clearly states under stormwater mgmt there are certain things that are supposed to be provided. As the Applicant/business owner goes through this criteria, she will have to hire a professional in order to evaluate that criteria to determine if her property can be brought up to that standard.
Pam Mitchel made a motion that the Applicant provide us with information concerning the surface of the driveway and parking area and demonstrate that stormwater management provisions meet the standards as set in the Site Plan Review Section Q. 8. & Erosion Control, 9. Deborah Willis seconded the motion.
Vote: 5 in favor. 0 opposed. Motion passed.
Pat asked the Board members if they had covered everything in the remand. They said yes.
Pat thanked Mrs. Ferland for staying through this, knowing that she wasn’t feeling well and also thanked the Applicants for staying and their input.
Pat indicated that Mrs. Ferland has rethought her establishment and will probably want to talk with the CEO about her new plans.
Deborah thanked the Acting Chair Hart.
OTHER BUSINESS
6.) Adjourn
Deborah Willis made a motion to adjourn. Pam Mitchel seconded the motion.
Vote: 5 in favor. O opposed. Motion passed.
Adjourned 9:54 PM
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