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Dorothy Morang, Recording Secretary
{00030026-0000-0000-C000-000000000046} CITY OF placeCityGARDINER
PLANNING BOARD
Gardiner Planning Board October 24, 2006 5:00 PM
City of placeCityGardiner (Continuance of October 10, 2006 Regular Meeting)
ROLL CALL
Present: Pat Hart Pamela Mitchel Judith A. Dorsey Ian Burnes
Deborah Willis James Montell
Absent: Edward Lawrence
Also Present: Dorothy Morang, Planning Board Recording Secretary
David Cichowski, Code Enforcement Officer (CEO)
Jason Simcock, Planning & Development Director
William Najpauer, Planner
Nick Beaulieu
1.) Chair, Pat Hart called the meeting to order at 4:57 PM, welcomed everyone and went over the schedule for the meeting.
2.) Roll call taken.
3.) Ordinance Change Recommendations – Jason Simcock, Director of Planning & Development
Jason Simcock gave an update on the recommendations proposed for a building code for the City. The current code is questionable and rather than wait for someone to challenge the City about what we are following for a building code, the City would like to be proactive and make sure this issue is clear. The previous version of the Ordinance was very clear and it actually stated right in the ordinance those portions of the BOCA Code that the City was following. When the Ordinance was rewritten back in 2003, this was probably overlooked and although there are a few references to the BOCA Code in the current Ordinance, it doesn’t cite it strong enough to be clear that we are still following BOCA. Therefore,
the City is taking the position that they really don’t have a Code.
The State guides the municipalities in what they can adopt for a building code. A few years back, the State Legislature passed a law that says that if a municipality doesn’t have a building code in effect and you choose to adopt one, you must adopt the International Building Code (IBC) for single family structures and the International Residential Building Code (IRBC) for commercial and multi-family structures. We do, however, have flexibility in what portions of these codes we want to keep and what sections we want to exclude. Several of the building organizations from around the country, BOCA, the Southern Building Code, the code that used out west – all got together and came up with the IBC and the IRBC. Bill Najpauer has worked with Jason to review the Codes and they have made a list
of those exclusions. They tried to keep in line with what the City had previously with the BOCA Code. He distributed the lists to Board members. The City Code book would be amended to include language adopting these codes with the exclusions.
Jason introduced Bill Najpauer. Bill said that certain chapters were excluded because the City may already have in place a process or ordinance that deals with that specific area or state law may have a requirement that binds the municipality to follow a certain procedure, such as the floodplain rules. In the Administration section, for example, things are excluded because there is already something in place within the City Ordinance, Code or in State Statute. In other chapters, sections were excluded because the State has adopted its own code or variation of the code. Some examples are the NFPA Codes, State Plumbing Code, etc. that deal with things such as egress, mechanical systems, heating systems, chimneys, etc. In those cases we are not following the version that is in the
International Building Code, but instead follow the State Code. You could leave it all in there, but you would have conflicts between the two and confusion about which code to follow.
Jason noted that during the process of finding which NFPA codes we refer to in City Code; they found that the editions that have been cited are actually outdated. They will be updating all of the NFPA Codes as well. In updating the Ordinance, they would strike the references to BOCA and try to make it as generic as possible. He distributed a draft of the language to be inserted in the City Code in Title 3 which covers buildings. He noted that once the Ordinance Review Committee reconvenes, this is the type of thing they will work on in the future.
Chair Hart thanked Jason for his work on this.
Judy said that Section 1 doesn’t seem quite complete in terms of what our building code is. It seems like it should say something about our other Ordinances so that it’s clear that this isn’t all there is. It looks like we’re adopting the whole thing and it doesn’t mention all of the other things that take the place of the ones that have been excluded.
Jason said that it has to be written so that it explains that. He will look at how it might be written so that it’s clear. He said the reference in the Ordinance should be as generic as possible so we don’t have to go back and modify the Ordinance to make a change. It would be spelled out in the City Code. We could tie those chapters into this, i.e. Fire Prevention. He said if the Board would be more comfortable seeing the whole chapter rewritten in the City Code, maybe they can vote on the concept and he will re-work the language.
Judy Dorsey made a motion to recommend to the City Council that they adopt portions of the 2003 IRBC & IBC as presented to us tonight. Pam Mitchel seconded the motion.
Vote: 6 in favor. 0 opposed. Motion passed.
Judy Dorsey made a motion that we adopt the amendment to Section 3, Performance Standards and Section 4. G. 2. C. 1 Administration, as outlined in the handout given tonight. Pam Mitchel seconded the motion.
Vote: 6 in favor. 0 opposed. Motion passed.
Judy Dorsey made a motion to recommend to the City Council that it adopt the changes proposed in the draft amendment for the review of ordinances relating to the Ordinance Review Committee. Pam Mitchel seconded the motion.
Vote: 6 in favor. 0 opposed. Motion passed.
Jason said he will copy the Board members when he gets the language for changes complete.
4.) CONTINUANCE OF MEETING – 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 74 Moonlight Drive, is within the Shoreland (L) and Residential Growth (RG) Zoning Districts, City Tax Map 15, Lot
Chair Hart introduced the continuance of the October 10, 2006 meeting for a Minor Site Plan Approval, Nicholas Beaulieu, Applicant, on behalf of the owner, Michelle Lewis. Chair Hart noted that they’ve done the completeness check and the public hearing and a site walk. Two members are here that were not present at the last meeting, however, they did attend the site walk and have reviewed the application and detailed minutes of the last meeting. She asked if anyone had any questions. They felt they were able to participate in the review of this application.
Judy Dorsey asked to distribute a memo that she had written that summarizes her discussion with Rich Baker of the Maine Department of Environmental Protection (DEP). She asked him some basic questions and covered issues she was confused about in the prior meeting concerning the DEP’s “Guidelines for Municipal Shoreland Zoning Ordinances” and specifically, standards for reconstruction or replacement of non-conforming structures in the Shoreland Zone and guidance on how to interpret and apply Section 4 H (4)(e) of the Gardiner Land Use Ordinance. The memo covered issues such as when and how to determine that a non-conforming structure arrived at its current condition; 50% of market value and how market value is determined; deterioration so extensive that there is no volume to the structure;
the 30% lifetime expansion rule; setback requirements to the “greatest practical extent” and cutting trees to meet the “greatest practical extent”. She gave some examples of these issues. Judy also noted that the Board’s determination of the “greatest practical extent” should not be affected by the applicant’s proposal.
Chair Hart said we are bound by Gardiner’s Land Use Ordinance and asked how the information Judy provided relates to ours. Judy said Rich Baker was helping her to interpret our Ordinance since the City cannot be any less strict than the State’s Ordinance. Judy said in fact, it’s now stricter because they’ve updated the guidelines recently and, for example, they’ve changed the 1 year requirement for rebuilding to 18 months. Our Ordinance says a year, so we’re bound by that, but when we re-do our ordinances, we may want to consider changing it to what State has. David said he had recently attended a class that reviewed the new updates. We have until 2008 to update our Ordinance if we want, but if ours are still stricter, we don’t have to update them.
Judy said that Rich Baker will provide us with the updates and also said that he is willing to come and do a workshop for all of the various boards and other municipalities in the area. Board members would like to have this class. David said he would get it set up. Chair Hart suggested that it include the Planning Board, Board of Appeals, Cobbossee Corridor Committee, Waterfront Committee and others.
Judy said that one of the things she thought was confusing was at the site walk, she kept hearing different people say different things about what the setback area was for that lot based on what that water body is. She’d like that clarified. Nick spoke up and said it is 100’. Some towns say 75’, but Gardiner says 100’. David said the setback is 100’ from the Shoreland. Judy said that one of the things that Rich Baker mentioned to her is that there are some areas that have increased ratings for various wetlands and water bodies and we may have some changes that we may have to make in terms of the ratings of water bodies that would change the setbacks.
Ian Burnes asked where does this memo and non-conforming leave us. He feels that they need to figure that out before launching into the review.
Nick Beaulieu spoke up and said that his interpretation is, in determining whether it’s practical or not, the 7 criteria in Section 4. H. 4. 1. In his packet that he turned in when he addressed the Board originally, is a 3-page document containing his interpretation of how he qualifies as being practical under these guidelines. These are going to be the nuts and bolts of whether this will be allowed or not. Take the 7 criteria and determine whether there is more practicality to follow it this way or to move it back behind the 100’ setback.
Judy said that Non-Conformance rules within the Shoreland is a part of the State Shoreland Zoning Ordinance. Our Ordinance separated it out and put all the non-conforming rules, Shoreland and other things in one section and Shoreland Zoning section is separate. We have to jump back and forth. She agrees with Ian that the most important piece of Shoreland Zoning is the non-conforming structure requirement and the “greatest practical extent”.
Chair Hart said we’re deciding “greatest practical extent”, so we should go through each of 4. H. 4. and asked if everyone was ok with that. They said yes.
Pam Mitchel made a motion that 4. H. 4. a. does not apply. Judy Dorsey seconded the motion.
Vote: 6 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that 4. H. 4. b. does not apply. Judy Dorsey seconded the motion.
Vote: 6 in favor. 0 opposed. Motion passed.
Pam Mitchel made a motion that 4. H. 4. c. has been met. Judy Dorsey seconded the motion.
Vote: 6 in favor. 0 opposed. Motion passed.
Chair Hart read Section 4. H. 4. d. and asked the Board members what they thought. Judy said she thinks they need a discussion of this in terms of what they saw at the site walk.
Nick Beaulieu told Board members that to determine the “greatest practical extent”, each one of the items, size of the lot, etc. should be discussed and then all of these things together will determine whether it is practical or not. He doesn’t think you can look at one at a time, but as a whole be able to determine whether it’s practical or not based on the information that he has been provided to the Board. He said the Board needs to go through the 7 topics and he’d like to discuss each of them so the Board can see where he’s coming from.
Judy said that for her - the size of the lot, the scope of the land, the potential for soil erosion, moving the new structure back farther than it is proposed to be moved would not be hindered by at least either of the first two items – the size of the lot or the scope of the land. There is nothing to prevent them from building the new structure back behind the CMP right-of-way.
Ian noted that the 100’ setback precludes it from being in that power line right-of-way. He said as far as the scope of the land, there are two other issues he sees as being significant – one was that fairly significant sand mound that is under the power line and another thing he felt was important to note was the fairly fragile mossy under cover of the hemlock forest that ran down the bottom third of the property up to the water. It is very soft and there is no vegetation holding it in right now. You almost couldn’t step on it without damaging it. The third thing that he noticed that he thought was important to take into consideration in the scope of the land is there appeared to be some major man made disturbance in the soil where it is marked as a rain garden on the map. It felt like
an old foundation of some sort that was in there. These are two things he is considering when determining what is disturbed and what is not disturbed and it lends itself to the consideration of the practicality. He feels that clearly the fragileness of that soil underneath those 3 or 4 hemlocks that were within the 100’ setback should be taken into strong consideration as to how you would prevent that from meeting erosion control.
Chair Hart noted that they also need to consider other structures on this property and abutting properties. They don’t have anything certain about the other lot, although we know that they are planning to build a year round home, but right now there is nothing there. The Thayers are on the next lot.
Judy said the next thing would be the septic system and what they are proposing would be up in the back. Chair Hart asked if it was going to be a shared septic system with the Lewis’ other lot. Nick said no, just this project. Judy said, so moving this structure back farther than is being currently proposed would not be effected by where the septic system is because it is already being planned to be in the back. It would actually make the septic system closer to the structure and they wouldn’t have to move where they planned to place the septic system. Pam said the structure could easily be moved back to behind the 100’ setback. Judy agreed.
Ian said as he thinks about moving it back to the “greatest practical extent”, he believes the Board’s goal is to have it meet the setback standards and the burden of proof is, why isn’t it practical to move back 100’. He feels that the 100’ setback should be met.
Board members discussed whether they would have any other issues if it is moved behind the 100’ setback. Judy said it’s a non-issue for the Board if the Applicant meets the 100’ setback.
Jim said that if they were moving the structure and there was something in the way, he might think differently, but putting it behind the 100’ setback would eliminate a lot the problems and it makes sense to him. Why move it 3’ – why not move it 23’ and be beyond and conform.
Debbie said she would be hard pressed to find in a lot that is this large, with no precipices, no large valleys, nothing there as we walked - she couldn’t see anything that would prevent them from using the entire lot. Her concern is about the hemlocks and how valuable they are to the shore front. Ian was saying something about the fragility of the lot where the house is now – I sunk. Jim said they all did. She sunk as she walked around the back of the property and then there was that stuff that looked like debris and it appeared very fragile to her.
Ian said the another thing that he was weighing was the importance of the hemlock forest and the disturbance if they were building down in front of the hemlocks. He felt that the Shoreland was much more valuable although there might be fewer trees that you are saving. Judy said that they would actually cut fewer trees by backing it up because if you don’t have to go down as far for the driveway, you won’t have to cut as many trees.
Debbie said it doesn’t look out of place if it is moved back a little considering the location of the other buildings – the Thayer’s place is father down but the next property - the Lewis’ property - the house is set back 100’. She’s concerned about the protection of the hemlocks, where is it best to be placed.
Ian said they aren’t really bound by what would look best; they have to come up with a reason why it can’t go all the way back behind the 100’ setback.
Nick Beaulieu referred the Board to the information he provided from the Lake Smart Program. He said that he proposed the septic and garage outside the 250’ setback so it is out of the Shoreland Zone and left the rest from 100’ to the 250’ as natural as possible. He can still do that, but quite frankly, for the extra money they are spending to try to do this in it’s location and spread these structures out , if they can’t do it that way and have to come back to the Planning Board, we’re going to bring a new plan and it’s going to incorporate the house and garage as a connected structure and the septic, certainly behind the 100’ setback, so it will comply with Shoreland Zoning, but it will save my client $10,000. in overall construction. From my point of view,
that certainly creates the potential for a lot more soil erosion because not only will the area where the cottage is now will be gone, but in addition, at least 100’ behind that, will be clear cut in order to bring these structures together as one and try to cut down on our cost, so if you look at it from a pollution standpoint, then it goes against how Cobbossee Watershed would think and how the Lake Smart Program would incorporate their thought process for this – at least that is my perception of it.
Judy said to Nick that they could still put in the garage and septic in the places you’ve proposed and meet those ideal guidelines that PlaceTypeplaceLake PlaceNameSmart and the Cobbossee Watershed would like you to meet because you are willing to do it now. So if we say to move this thing back behind the 100’ setback, you could still do those things that placePlaceTypeLake PlaceNameSmart wants you to do. The fact that you’re going to say, well if you’re not going to let me do what I want to do, I’m going to save some money and not do what Lake Smart wants me to do - Nick interrupted and said that is not what he’s saying. He said if he can’t go with plan 1 then he needs to go with plan 2. Judy asked him why there are just those two plans. He
said, because he don’t have 5 plans. If plan 1 fails I’m going on to plan 2.
David mentioned that if the structure is built behind the 100’ setback, it wouldn’t have to come back to the Planning Board – he would be the one to issue the building permit.
Judy said that another way to use that criterion is, if there are other structures on that property or another property that would prohibit you from doing something, than that’s something to take into consideration, but we don’t have that situation here.
Pam Mitchel made a motion that Standard 4. H. 4. d. is not met because based on our site walk we have not found any reason why the structure cannot be moved back behind the 100’ setback. Judy Dorsey seconded the motion.
Ian said that he felt they should add the finding of fact in the motion – the size of the lot allows it to be moved back. The scope of the land – there is a disturbance already existing behind the 100’ setback line. There is a great potential for erosion within the 100’ line. There were no other structures that would prevent it from being moved back and the type and amount of vegetation indicated that it would be more advantageous to meet the 100’ setback.
Pam Mitchel amended her motion and added - we have considered the size of the lot, an existing disturbance noted on our site walk, we are concerned about the potential for erosion within the 100’ setback, there are no other structures preventing relocation on the lot and we are concerned about protecting the delicate vegetation on the Shoreline. Judy Dorsey seconded the motion.
Vote: 6 in favor. 0 opposed. Motion passed.
Chair Hart said that at this point because the structure is not in compliance with our Ordinance – non-conforming, we have an opportunity here for someone to table this application.
Pam Mitchel made a motion to table this application.
Judy said if we do that and he comes back with a proposal that doesn’t have to come to us than how do we get back and un-table this? After discussion, they decided that it should not be tabled and a decision should be made on this.
Pam Mitchel withdrew the motion.
Pam Mitchel made a motion that we deny this Application based on the fact that Standard 4 H. 4. d. has not been met. Judy Dorsey seconded the motion.
Vote: 6 in favor. 0 opposed. Motion passed.
Chair Hart thanked everyone.
6) ADJOURN
Pam Mitchel made a motion to adjourn. Ian Burnes seconded the motion.
Vote: 6 in favor. 0 opposed. Motion passed.
Meeting adjourned at 6:47 PM
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