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Dorothy Morang, Recording Secretary
{00030026-0000-0000-C000-000000000046} CITY OF placeCityGARDINER
PLANNING BOARD
Gardiner Planning Board October 10, 2006
CityplaceCity of Gardiner, StateMaine Regular Meeting 6:00 PM
ROLL CALL
Present: Pat Hart Pamela Mitchel Judith A. Dorsey Ian Burnes
Absent: Edward Lawrence Deborah Willis James Montell
Also Present: Dorothy Morang, Planning Board Recording Secretary
David Cichowski, Code Enforcement Officer (CEO)
Jason Simcock, Planning & Development Director
Anita Nored Arek W. Galle, Gates, Leighton Inc. Nick Beaulieu Becky Thayer Gene Thayer Francis Grey
1.) Chair, Pat Hart called the meeting to order at 6:05 PM, welcomed everyone and went over the schedule for the meeting.
2.) Roll call taken.
3.) Pam Mitchel made a motion to approve the September 12, 2006 minutes as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
OTHER
Chair Hart and Board members agreed to move an item from the Planning and Development Office, Jason Simcock, Director, to be heard next, anticipating that other Board Members would arrive shortly.
Jason indicated that this was a follow-up to the August 2006 meeting where he advised the Planning Board of a number of changes that needed to be made to the Land Use Ordinance. The items are: clarifying the building code; clarifying the definition of the Ordinance Review Committee; updating the fee schedule and coming up with a new land use district for the Cobbossee Corridor that is consistent with the Cobbossee Corridor Master Plan. He offered Board members a copy of the agenda supplement he sent to the Council that itemizes these. He said that the City Council has sponsored all of these.
The Cobbossee Corridor District – It was decided that it would be best to iron out all of the details with the Cobbossee Corridor Committee/Task Force who have been working with this area for a number of years and actually helped put the Cobbossee Corridor Master Plan together. Once they get through with that, Jason will bring it back before the Planning Board and may want to have a special meeting just for this instead of trying to combine it with other applications. He hopes to move along quickly with this because it has been a goal of the City’s to have this done and there are some pending projects out there that may find this change useful for the redevelopment of that corridor.
The building code is a little more complex than he thought it was going to be. The City has researched and found references to BOCA Code that are still in today’s version of our Land Use Ordinance but it is not as clear as we would like it to be. The State says that if you adopt a building code today, there are two codes that you shall adopt, but you have choices within each of these as to which sections you will adopt. We have gone through each code, the International Residential Building Code (IRBC) and the International Building Code (IBC) and specified those sections that we want to exclude similar to what was done in the previous Ordinance. Some of the sections that they are looking to exclude are covered by state rules. An example is the National Fire Protection Act (NFPA), Plumbing Code, etc. We will have to update the City Code as well. We are looking to see if you would support the concept.
The fees are another item. Some need to be set, others updated. We would like to direct all fees designated in the Land Use Ordinance to be set by the City Council, avoiding having to make an ordinance change any time we want to update the fees.
Jason said they are hoping to have this ready for the 1st November Council Meeting and would like to get a recommendation from the Planning Board prior to that. After discussion, the Planning Board agreed to meet on Tuesday, October 24, 2006 at 6:00 PM to address these changes/updates.
The Ordinance Review Committee (ORC) changes include adding representation from the Board of Appeals (BOA) rather than the Historic Preservation Commission (HPC). No one on the HPC wanted to serve on the ORC and it was felt that the Board of Appeals representation was needed. Jason distributed a draft of this revision as well as the lists of exclusions from the building codes.
4.) PUBLIC HEARING – Minor Site Plan Approval
Gardiner Savings Institution, FSB is seeking Minor Site Plan Approval to construct new 17-space parking lot with barrier arm gate access controls, pedestrian plaza with landscape and site improvements. The property, located at 5 Depot Sq, is within the Central Business (CB) and Shoreland Overlay (SO) Zoning Districts, City Tax Map 37, Lot 158.
Anita Nored introduced herself and said that Gardiner Savings Institution, FSB had purchased the property previously owned by the Gardiner Federal Credit Union a while ago and have been using the lot for parking. Their goal is to demolish the building and develop a parking area. She introduced Arek Galle from Gates, Leighton Associates, Inc. who is assisting with the project.
Arek showed pictures of the site and the proposed improvements. He said that the plan is for a 17 car parking lot with a pedestrian plaza with pavers, granite seat blocks, a parking lot retaining wall, landscaping, screening and gate. The design was developed to be consistent with existing areas within the City. It will be about 27% hardscape to landscape. There will be no non-native invasive plants.
Pat Hart asked about the overall parking plan that was discussed with the Yankee Title proposal and how this fit into that plan. Anita said that, overall, they have about 90 employees in the City. They are about 20 parking spaces short. Pat asked why not use more of the area for parking. Anita said that the esthetics are important and they were focusing on the City’s theme “Gateway to the City” and felt the pedestrian area with seating and landscaping was in keeping with that.
The Board reviewed the Application for completeness. It was noted for the record that the zone is Central Business with Shoreland Overlay and not General Business as listed in the Application.
Pam Mitchel made a motion that the Application is complete with the addition of a boundary survey from a licensed surveyor with an approval block added. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
6:56 PM Meeting opened for public comment.
There was none. Chair Hart asked Dorothy if she had received any comments. She said no. She asked the CEO, David and he said he had gone to the area with the Police Chief and Public Safety Director and they had no concerns with the project.
6:57 PM Public hearing closed.
Arek noted that everything pitches forward from the railroad tracks so water flow towards the river is nil and there is a lot more natural saturation which is an improvement.
The Board reviewed the Land Use Standards in Section 6, Shoreland Zoning.
Pam Mitchel made a motion that the following Standards from Section 6. H. do not apply: 1, 2, 3, 4, 7, 8, 9, 10, 12, 13, 15, 16, 17, & 19. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that Standard 5 has been met. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that Standard 6 has been met with the note that erosion control during construction is shown on L. 5 which is the demolition plan in the packet. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
There was discussion concerning the two parking spaces on the end and how they would get out of the parking spot. Anita said not everyone leaves at once and they could assign those two spaces to those who stayed later.
Pam Mitchel made a motion that Standard 11 has been met with the note that Gardiner Savings Institution will control who parks where so that the people on the end can get out of the parking lot without backing out. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Chair Hart noted that the Shoreland Overlay boundary is not shown on the map and asked Arek if Coffin Engineering could add that to the plan.
Pam Mitchel made a motion that Standard 14 has been met. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that Standard 18 has been met. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that Standard 20 has been met. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
The Board reviewed the Applicant’s responses to Section 5. Q., Site Plan Review Criteria.
Skip Review Criteria 1 and 2 for now.
Pam Mitchel made a motion that according to Review Criteria 3 the site is being appropriately utilized. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion (Review Criteria 4) that based on information we have, there is appropriate traffic access both in terms of the driveway and the internal vehicular circulation. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 5 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 6 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 7 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Review Criteria 8 & 9 are covered in the Shoreland Standards.
Pam Mitchel made a motion that we accept Review Criteria 10 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 11 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 12 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 13 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 14 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that (Review Criteria 15) based on information in the application, that water quality will be protected both during and after construction. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 16 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Skip Review Criteria 17 as it is covered in the Shoreland Standards.
Pam Mitchel made a motion that we accept Review Criteria 18 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 19 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 20 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we accept Review Criteria 21 as written. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Chair Hart asks that the Floodplain be identified on the map. Arek said it will be on the survey.
The Board reviewed Section 3, Performance Standards.
Pam Mitchel made a motion that the following Performance Standards from Section 3 do not apply: B, D, E, G, H, I, J, K, M, N, O, Q, R, S, T, U, V, W, X, Y, Z, AA, BB, AND CC. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Board members discussed Performance Standard A. and determined that 1 and 2 do not apply.
Pam Mitchel made a motion that Performance Standard A. 3 has been met. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that Performance Standard C has been met. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that Performance Standard F has been met. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that Performance Standard L has been met. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that Performance Standard P has been met. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
The Board reviewed Section 5. Q., Site Plan Review Criteria.
Review Criteria 2. Pam Mitchel made a motion that the project meets all applicable regulations and ordinances of the City and meets the intent of the Comprehensive Plan, as amended. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Review Criteria 1. b. Pam Mitchel made a motion that this Application meets both the Land Use and Shoreland Performance Standards. . Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Review Criteria 1. a. Pam Mitchel made a motion that this project conforms to the requirements of the district in which it is located as set forth in Section 2 and to other pertinent requirements of this Ordinance including the Performance Standards of Section 3 and 6. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we approve the application with the condition that the Applicant provides a standard boundary survey from a licensed surveyor that contains an approval block and shows the location of the Shoreland Overlay Zone and the Floodplain elevation.
Arek questioned the approval block being on the survey. He felt it should be on the plan instead.
Pam Mitchel withdrew her motion.
Pam Mitchel made a motion that we accept the Application with the conditions that the Applicant provide a standard boundary survey with a seal from a licensed surveyor and that the survey indicate the location of the Shoreland Overlay Zone and the Floodplain elevation and somewhere on some appropriate paper there be an approval block. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
7:51 PM Break
8:00 PM Resume meeting
5.) PUBLIC HEARING – Minor Site Plan Approval
Nicholas Beaulieu, Applicant on behalf of Michelle Lewis, Owner, is seeking Minor Site Plan approval for a thirty percent (30%) expansion of the existing structure by removal and rebuilding. The property, located at addressStreet74 Moonlight Drive, is within the Shoreland (L) and Residential Growth (RG) Zoning Districts, City Tax Map 15, placeLot
Pam Mitchel noted that the Agenda said 30’ and the Application is 30 %.
Nick Beaulieu said that he was representing Michelle Lewis whose intent is to remove the existing cottage and rebuild it in the same general location to make it less non-conforming. He has been talking with the State about a program called “placePlaceTypeLake PlaceNameSmart”. The program attempts to minimize potential pollutants for the future of Cobbossee Stream. If this plan is approved, it will be the first PlaceTypeLake PlaceNameSmart award on Cobbossee Stream Corridor, which goes all the way from placePlaceNameCobbossee PlaceTypeLake through about 20 miles of navigable waterways. If this Application meets the criteria, “to the greatest practical extent”, it will be a real benefit not only to Gardiner but to the Cobbossee Watershed. Nick distributed additional
handouts to the Board.
Chair Hart said that she could not understand where the existing building is. Other Board members could not either and noted that there were no pictures. Nick showed the Board where the building currently is and where the new building is proposed to go. Nick noted that one of the elements that really prohibits them from moving it back without removing most of the forest canopy on the lot is an overhead power line with a 30’ right-of-way, 15’ from the center line in both directions.
Judy Dorsey said the biggest problem for her is that she can’t see what is there now and wondered about a Site Walk by the Board. Nick referred them to a document in their handouts that talks about the value of the structure. He noted that the CEO, David has been on the site and knows the value of the building. It doesn’t have much value left in its present state – it’s deteriorated more than 50% of its value. Nick noted than he sent the whole package to Mitchell Rasor to determine if he was lacking any materials and maybe the Board could go through his memo.
Judy Dorsey said that one of the things the Board also needs to look at is the standards in the Non-Conforming Section of the Ordinance and this puts the Board right back where it was with the previous application. She doesn’t think the Board should get very far into this Application until we do the site walk.
Nick said that the material in the Application suggests the way they are trying to achieve this goal and be acceptable to the Planning Board and until the Board members go through the application, – you may want to do a site visit, but the drawings quite clearly indicate what is existing there now and what would be there afterwards. placePlaceTypeLake PlaceNameSmart did an assessment on the property and the outcome of their assessment is what we are planning to do. We plan to do the most that we can to sustain this property and not create more pollution ultimately that will run into the water. If we can rebuild this building in the same general location but make it less non-conforming than it is and leave the piece of property between the power line and the 100’ setback back to the
limits of the 250’ setback which takes them out of the Shoreland Zone and put the storage building and septic in that location, it keeps intact the very large, mature hemlock grove in a forest canopy season and that is the whole purpose of presenting it in this manner otherwise what we are left to do is remove all the trees from the lot and get behind the 100’ setback and have to pump the septic which is another $2,500 and have to remove the trees which is additional monies as well. They feel that their approach is beneficial.
Pam said it could very well be, and it would probably help the Board to go out and see the hemlocks, to see the lay of the land, to see the cottage and to have a feel for where things are. It’s hard for her to see how this will be less non-conforming. Nick said it is less non-conforming because it is pulled back further from the water. Pam said she likes the idea of the rain gardens and saving the trees and she read through the placePlaceTypeLake PlaceNameSmart information and thinks it is very exciting. It’s hard to visualize it from just looking at the plan and even the images.
Judy said that she doesn’t disagree with anything that has been said, but the Board may not be able to permit the Applicant to do that. The non-conforming requirements are in the Ordinance and we have to follow them. So if you were going to rebuild it, and she is not suggesting that what they are doing won’t improve the situation, the Board has to figure out if we can even let you do that and the Planning Board doesn’t have any flexibility on that.
Nick said that actually they do have a lot of flexibility because in the Performance Standards it states, “to the greatest practical extent.” Judy said in the non-conforming structure part, they don’t even get to that question.
Chair Hart suggested that they look at the Application for completeness.
.
The Applicant has asked for a waiver of Section 5 H. 5 r.
Pam Mitchel made a motion that we waive the regulation in Section 5 H. 5 r for the location and type of existing trees of 12-inch caliper DBH (4.5 feet above the ground) or over existing fences and hedges. Ian Burnes seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that the Application is complete. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Chair Hart referred to the Planner, Mitchell Rasor’s memo. Mitchell noted that a single-family residential use is allowed in this Zone and it is not a question regarding a non-conforming use, but the apparent replacement of a non-conforming structure to meet the setbacks to the greatest extent possible. The question the Planner asks is, is this a complete rebuild plus a 30% expansion or a repair of an existing structure and a 30% expansion?
Pam said it isn’t a rebuild; they are tearing it down and putting up a larger building approximately in the same place, but not quite as close to the water.
Judy said that the Planner’s memo isn’t really dealing with the real issue; he sort of skips over it – one year from what? Judy said she thinks there are two layers as it relates to Section 4. H. 4. e. She said if we just take this cottage as is and let’s say it’s a fairly fancy cottage and they’re going to build a fairly fancy cottage and make it a little less non-conforming, that is doable under this. But the question is can they even do this because we don’t know what shape this cottage is in now. If we look at the State Shoreland Zoning Statute, which is the minimum that any municipality can adopt, the State says remove, damaged or destroyed regardless of the cause. So the first thing the Board has to look at is what kind of shape this cottage is in
and whether it has deteriorated to the point where the purpose of this statute is to say we’re not going to let you fix this or replace it or rebuild it because it is so far gone that what the override is in this situation is protecting the water. The purpose of the Shoreland Zoning Law at the State level and therefore at the Municipal level is to set up two situations. One is you’ve got something there and you want to improve it and you’ve got limits on what you can do to improve it and where the improvements can occur. But she thinks there is a big legal question here, what if you let something that’s been there since 1908 deteriorate to the point where it’s really not worth anything. She thinks that before they can do anything with this Application or the one they heard last time, she needs a legal opinion from someone about what she views as a cutoff – if something has deteriorated to the point where it’s worth
less than 50% of its market value, then you’ve lost your right to continue this non-conforming structure. She feels the purpose of this is to say, we’ll grandfather things that are there that you have been using and will let you continue using and improve them to the minimal extent. But if the use has been abandoned, we’re not going to let you do that. We’re going to say water protection overrides your right to have a grandfathered structure that we wouldn’t otherwise let you put there.
8:40 PM Opened meeting to public hearing.
Nick said that Gardiner’s performance standards allow for a removal and a rebuild and the State of placeStateMaine’s Shoreland Zoning Ordinance also allows for removal and a rebuild. He said the intended use during the time they owned the property has not been discontinued. He said he realizes the State has minimum criteria and the City has the right for more stringent criteria, but as he reads the performance standards in Section 4, it is allowed as long as the Planning Board looks at the criteria and determines whether it is to the greatest possible extent or not.
Mr. Thayer said they been over to that cottage once or twice a year since they bought it. It is still functioning. Mrs. Thayer said it was their understanding that the structure could be used a cottage and either repaired or rebuilt. They have no objections to the proposal and it would be an improvement. They would rather have it rebuilt in a way so that they didn’t have to cut the trees down. Mr. Thayer said all the lots were once owned by a family and the reason they bought that lot was because the road to it ran directly behind their property. When the owner offered it, he bought it and cut off the right-of-way off that was previously granted from the current deed. They bought the property for that reason and kept the building on it.
Chair Hart asked the Thayers if they maintained the building. Mr. Thayer said they went over to check on it a couple times year. Chair Hart asked if it was still functioning and if the roof keeps the rain out. Mr. Thayer said to a point. Mrs. Thayer said it has deteriorated over time but it was their understanding before they sold it to anyone that it could be rebuilt or repaired and used as a cottage. They bought it in 1999. Chair Hart asked if a fair description of it would be that it isn’t falling down, but it needs repairs. The Thayers said yes. Mr. Thayer said he has no objections and they are the nearest abutters. Mrs. Thayer said that she feels if they can do it in way that they don’t have to clear cut, which would be her preference. It’s quite natural back there with animals, etc.
Chair Hart asked Dorothy if they got any calls or correspondence. She said no.
8:41 PM Close public hearing.
David Cichowski, the CEO asked to speak. He said he thinks part of his job is to help the Planning Board through this. He said that he spoke with the legal counsel for the City. He said the use is a permitted use, so whether you stopped using it for 3 months or ten years, it didn’t matter, the use is permitted. The second thing he investigated is reference the property deteriorating to where you wouldn’t want to go in there and animals are in there and the windows are gone. The legal counsel said to say that about a building, you would have to have a clause in the Ordinance – “deterioration by negligence”, that would actually be a line item in our Ordinance then you could make a judgment whether that building had deteriorated to a point, because of negligence,
where it can’t be rebuilt. His idea is, if they were going to jack it up and move it back, than he could see where the trees and other things would be in the way, but they are going to tear it down, and rebuild a little further back. In order to do this they will have to build a driveway almost the complete length of the property. He thinks that it would be just as disruptive to the environment and they would have to cut as many trees to do this as to build the cottage back where it meets setback requirements. He feels the most important thing is, is the impact going to be greater if they put a driveway all the way down thru the property and put the cabin where they’ve planned or would be less if they left the trees and bushes where they are and built the cabin half way up the property. They wouldn’t have to move it so they wouldn’t have to clear any kind of a path and they would be bringing the materials from outside the
property down as far toward the water as the Planning Board allows them to build.
Nick said he agrees that it is about determining through the Board, with unbiased minds, what is best for the property. They are planning to conform to the Lake Smart program with respect to the driveway and they are looking at how they can get the driveway down there and make it so it meanders and has turnouts, reduce any storm water runoff and the get the vegetative strips in there and rain gardens. Their attempt is to limit the disruption as much as possible, using environmentally friendly techniques, to get a 12’ wide driveway down there so it’s not taking out the biggest and best trees on the site to achieve their goal. According to Adam Paul of placePlaceTypeLake PlaceNameSmart, that would be the best approach. But ultimately, it’s up to the Planning Board to decide what
the best approach is. But he thinks they need to do it in an unbiased manner and not get heated up about it because it’s going to play a direct role in Mr. Parent’s project as well.
Chair Hart said that they were acutely aware of that, but she reminded the Board that Mr. Parent is not here and they cannot talk about that application tonight.
Mrs. Thayer said they don’t have a problem with the abutters using the right-of-way to remove the old building and bring in new materials to build a new one. They just don’t want it used as an entrance once that cabin is built so they don’t have to worry about where they parked their cars if someone needed to get through.
Chair Hart asked about where the right-of-way was. David showed Board members where it is on the plan.
Board members said they would like to see the property. Ian Burnes agreed. He said he is trying to weigh Section 4. H. 4. d. 1 that gives the Planning Board the flexibility in determining whether the building relocation meets the setback to the greatest practical extent to take into account soil erosion, etc. He’s very uneasy and thinks that a site walk would be very helpful.
Judy asked to respond to Dave’s previous comments and agrees with his first point. The second point she disagrees with that we would need to have something in our Ordinance that says damaged by deterioration, by negligence or whatever, because the State Statute says, regardless of the cause. That’s as broad as it can be and ours cannot be any weaker than the State. You can’t interpret ours to be any weaker than the State statute is.
David said that he got it from counsel; he’s not saying he agrees with it. Maybe he didn’t say it right – you’d have more teeth if it were in the Ordinance.
Chair Hart said that the one thing that she was struggling with is to understand what it means - the non-conforming structure that is removed, damaged or destroyed by more than 50% of the market value of the structure before such damage. We’ve got this cottage; we’ve got a market appraisal, which we got tonight. So if they remove more than 50% of the value than the whole thing comes down?
David said that what it is saying is, if you had a house and a door blew off in a hurricane, it would be less than 50%. Not much of the house was destroyed and by fixing it up right where it sits, you aren’t really changing much. If it got struck by lightening and burnt to the ground and you had to rebuild every stud and every door and every window, then it would be over 50% of the market value destroyed and it would be just as easy to build 100’ back.
Judy there are two layers of this. Let’s say that instead of you deciding that you want to remove it and we’d have to go through this and you’d have to do it within one year; let’s say that lightening had hit this and burned it to the ground but it sat there for five years and you didn’t rebuild it, you would not be able to do it. So her question is, if it deteriorated to the point of less than 50% of the market value just by a lack of maintenance or lack of whatever and it’s for longer than a year, does that situation kick in where you can no longer do it and where is that line.
Nick said the Ordinance says “or”.
David asked where you are reading that any structure destroyed for more than one year you can put it back. Chair Hart said Section 4 H. 4 e. David said that is any structure not located in the Shoreland zone. He said but it still says that it may be put back as long as it is in compliance with water setback or to the greatest practical extent as determined by the Planning Board. Judy said, but it’s all got to be done within one year, but before you even get to that issue, you’ve got to determine the 50% of the market value and the one year connection and if you don’t meet that threshold, the rest of it doesn’t matter.
Chair Hart said if they take the whole thing down it would be more than the 50%, so that isn’t the question. Judy said that because they’re intending to do it within one year, they could do it, but what she is saying is that she thinks there is an earlier step with these camps that are in bad shape. You have to look at this in two steps. Say the lightening hits one of these places and burns it to the ground, which is clearly more than 50% of the value of the structure than you let it sit there for five years and then you come here and you say I want to rebuild it – this does not permit you to rebuild it. Chair Hart agreed that this is clear. Judy said now she is posing a less clear situation where less than 50% is caused by deterioration from failure to keep the
structure up. From the time it reached that state of being less than 50% of the market value till the time the application came in to rebuild it was more than one year. Chair Hart said that they would have to see the property to make any determination on that and also noted that they have a market appraisal.
Judy said that she had a problem with the appraisal. Doing a market appraisal based on the fact that it’s in the Shoreland Zone and it’s going to be allowed to be rebuilt, totally distorts the purpose of this provision. You can’t use that to determine what the market value of the structure is or else you never would have this not met. She really disagrees with the way this one was calculated. Chair Hart said it’s a number and it’s still this fraction piece that we’re about - this 50% we’re worried about. Judy said he’s saying right now it’s worth 40 – 50 thousand dollars based on its location on the property, its proximity to the water, etc and she’s saying, if you take that into consideration when you consider what it’s
current market value is, it’s never going to be less than 50% of what the market value was before you let it deteriorate. Chair Hart noted that they are removing the whole thing. Judy said do this in two steps. Chair Hart said she is not ready to say two steps because she sees a picture of a cottage and the Thayers are here and they say they can go in there, the roof leaks but that’s pretty standard on a camp, but she doesn’t see the need for the two step yet. She doesn’t agree that we’re there yet.
Ian asked at what point do they lose, to the greatest and practical extent. Hypothetically, the lightening strikes, it burns to the ground, its five years, then it’s not grounds for the greatest practical extent. You’ve got to meet the setbacks. Chair Hart agreed. Ian continued, then the question is, was there 50% or more damage before a year. Has a year passed since its 50% damage has been there? The Thayers said that they’ve owned it for seven years. He asked them if they had done any upkeep on it during the course of the seven years.
Nick spoke up and said, you’ve got the documents in front of you. Additionally, if we weren’t looking for the 29.99% expansion, as he sees it, it is in the non-conformance Section 4. H. 1. d, that says “nothing in the Ordinance shall prevent the strengthening or restoring to safe condition any part of any building or structure declared unsafe by the Code Enforcement Officer. We don’t have a letter that says that the building is unsafe, but what is clearly unsafe is the hole in the floor.
Judy said that the reason she is raising this is that she thinks that the Planning Board is going to get a lot of these applications and she thinks that we need to have a set of questions that we ask about each one. This thing could come in and look like a palace and we should still ask the question about whether 4 H. 4. e. has been met and that is why it is two steps. And she believes it has to be two steps for every application no matter what condition it is in. We have to look at what condition it is in. It is very possible that this one meets that and there is no issue.
Nick said that you also have to trust your licensed professionals. They are putting their license on the line and I don’t see them jeopardizing their license to come up with the numbers that are going to be inflated so you get a value of a product that is less than or more than the 50% of its value.
Chair Hart said we’re not doubting the appraisal, but it doesn’t even matter if its $2,000., it’s just that it’s 50% of the value destroyed or removed and you are going to remove 100%. She said to Judy, and your point is, perhaps this thing decayed already and so removing it is a second destruction.
Ian said that the problem with the appraisal is, it says it is based on the ultimate fact that this dwelling allows for a rebuild on subject parcel. It’s kind of difficult to use an appraisal that is based on the allowance of a rebuild for an allowance of a rebuild. We’re not questioning the license, we just questioning the basis.
Chair Hart said it doesn’t matter what the market value is because it’s the 50% piece and have we hit that. Judy said it does matter what the market value is because you’ve got to determine whether it’s lost 50% of its market value. You have to know what the market value is before and after. Chair Hart said if you’re destroying ½ of the market value – if we’re looking at one year - I don’t see two different points in time. I don’t see that we’re comparing 1992 values to 2006 values – then you have two different market values. Aren’t we looking at the point in time in which the lightening hits this place –the point in time in which he takes down the building? Judy said or the time it which it deteriorated.
This one may not be but some other one may be and then you’re looking at a long period of time, you’re not looking at a single event that you can mark and say lightening hit it and it hit it this day. Chair Hart said, so it passed the 50% in 1994 and that’s your point. Judy said yes. Chair Hart said she doesn’t have enough information with this application. Judy agreed and said she thinks with every application we have to ask that question. Ian said he thinks it’s reasonable and he agrees that there are a lot of camps out there that are going to be posing this challenge so that we ought to be mindful of it. The question then is do they have the right to have us consider what the greatest practical extent is or whether we enforce the 100 foot setback right away. Chair Hart said that is up to us the way the Ordinance is written. That is the grey area in which we live. That’s why there’s a
Planning Board. We get to decide that. Judy says, we get to decide what that means, but what Ian is saying is at what point does that kick in or at what point does the requirement that you have to meet the setback kick in and that is just a different way of saying what she is saying, this is a two step process. For many cottages the first step may take two minutes but for a fair number of them, it’s not going to take two minutes.
Pam Mitchel asked Judy how she will answer that question. Judy said it is not up to us to answer - she thinks we have to tell people what we want answered and they have to provide the information to answer it.
Chair Hart said it says in the Ordinance, 50% of market value before the damage, so that would be the two steps and your example of something that is decaying and trees are growing out of the roof. Then someone else takes it down three years later and you’re saying it’s too late. Judy said right.
David said it’s only if it’s closer than the limits, because actually you could even construe Section 4. H. 4. c. here as not quite clear because if you moved it back to the correct set back it wouldn’t matter how long the old camp was down because it would be just like you have a new house lot on the water and you were setting at the correct setback, so even if you tore it down and let it set for two years and then moved it back 100 feet, it wouldn’t matter. Pam said you’re not moving that structure then, you’re building something new. Judy said if you move it back 100 feet, I don’t care what you do. Nick said it does matter if the lot is non-conforming though. Pam said we’re talking about non-conforming structures not non-conforming lot.
Judy said at this point maybe we just need to cogitate on this and go out for a site walk. She apologized for this, but said that it was important that they get this right because we know these are going to start coming in and we want to treat everyone the same way. We want to ask the same questions of each applicant and get answers and I am just uncomfortable doing this by the seat of my pants. I feel that I need to have a good idea of how we’re going to treat these applications and treat them all the same and I realize that it means that the first few that come in here – we’re making you crazy, and I apologize for that, but I need to be comfortable that we’re asking all the right questions and that we ask those same questions of everybody that’s brining us this kind of an
application. I may find out that this two step process that I’m talking about is baloney, but so far, I don’t have any reason to think that’s the case, because I think of situations where it is not such a clear cut answer. Chair Hart added because things have gotten into such a state of disrepair. Others agreed.
Pam Mitchel made a motion for a site walk. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that we table this Application until after the site walk. Judy Dorsey seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Chair Hart reminded the Board members and those in the audience that, as part of the Planning Board where a case is still open, the members are not allowed to talk about it outside of sitting in this room with the tape recorder running.
Chair Hart disclosed that the Thayers are her neighbors, but she won’t talk about it when she sees them in the street.
Chair Hart noted that the site walk is considered a formal meeting. It gets posted in the newspaper. People can come and people do come and we would like to have the Applicant or their agent there. Dorothy comes along and notes are taken.
Chair Hart noted that where we’ve had the public hearing, we can have the continuation of this meeting following the site walk.
The site walk was scheduled for Tuesday, October 24, 2006 at 4:00 PM followed by the continuation of this meeting to include Jason Simcock’s request for review and recommendation on Ordinance changes and this Application.
The members discussed training that is available. Pam, Judy and Ian indicated that they’d like to attend the November training.
Ian noted that Grow Smart ME has a great training program out there also.
Chair Hart noted that addressStreetGardiner Main Street is looking for volunteers to interview businesses in town.
Chair Hart thanked everyone.
6) ADJOURN
Pam Mitchel made a motion to adjourn. Ian Burnes seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Meeting adjourned at 9:43 PM
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