6 Church Street, Gardiner, Maine 04345 Pat Hart, Chairperson
Dorothy Morang, Recording Secretary
{00030026-0000-0000-C000-000000000046} CITY OF GARDINER
PLANNING BOARD
Gardiner Planning Board October 27, 2009
City of Gardiner, Maine Special Meeting 6:00 PM
ROLL CALL
Present: Pat Hart Judith A. Dorsey Pamela Mitchel
Ronald Condon James Montell Deborah Willis
Edward Lawrence
Also Present: Dorothy Morang, Planning Board Recording Secretary
David Cichowski, Code Enforcement Officer
Bill Najpauer, Contracted Planner
Jason Simcock, Director Planning/Development
Mayor Andrew MacLean
Lee Bragg, Attorney
Rusty Greenleaf, Applicant Patricia M. Martin Kim Tessari Victor Tessari Beverly LaPlante Anne Cough Rosalind Jellison Elizabeth Cooley Paula Greenleaf Denny Greenleaf
Jaye Trimm
Barbara Estabrook Lynn Gerard Harold Gerard Jr. Deborah Skehan Timothy Skehan Ken Carlson Lincoln Luken Bill MacDonald
Patricia M. Martin
1.) Call the Meeting to order.
Chair, Pat Hart called the meeting to order at 6:05 PM and welcomed everyone.
2.) Roll call taken.
3.) October 13, 2009 Minutes.
It was noted that on page 3, 2nd paragraph, 625 lbs should be 645 lbs.
Pam Mitchel made a motion to approve the October 13, 2009 minutes as amended. Judy Dorsey seconded the motion.
Vote: 6 in favor. 0 opposed. 1 abstained (Ed Lawrence not at meeting.) Motion passed.
October 22, 2009 Site Walk Minutes
Three typos noted: pg. 2, item 3, paragraph 3: change door “with” to door “where”; paragraph 6, change: furnace “with” go to furnace “will” go; pg. 3 paragraph 6, change: “though” to “thought” in last line.
Pam Mitchel made a motion to approve the minutes of the October 22, 2009 Site Walk as amended. Judy Dorsey seconded the motion.
Vote: 7 in favor. 0 opposed. Motion passed.
4.) Continuation -Minor Site Plan Review
Oak Grove Cemetery Association, Applicant, Russell Greenleaf, Agent, is seeking approval of a minor site plan application to use an existing tomb within the cemetery to operate a crematory. The property, located at 45 Danforth St, City Tax Map 31 Lot 150, is within the High Density Residential (HDR) Zoning District.
Chair Hart said that this meeting was a continuation of the Planning Board discussion that was held on October 13, 2009. She noted that they had done the completeness review and a site walk. Since that time, the Planning Board had been notified by the City Council that they were interested in placing a moratorium on crematoria. The Planning Board has secured legal counsel who will advise them on the proper procedure. The City Council has just conducted a public hearing on the moratorium.
Chair Hart introduced Attorney Tom Federle of Federle and Mahoney.
Tom said that he had just attended the City Council meeting where they took up the proposed moratorium and adopted an amended form of the moratorium. The meeting was very well run and all of the public that wanted to speak did. The Mayor gave the Applicant a chance to speak and Tom also. Tom said he raised concerns about the original proposed moratorium, specifically the whereas clauses on page 1, paragraphs 1 and 2. Tom explained that the moratorium doesn’t make the Application go away; it only holds it in abeyance, unless it is withdrawn. Since the application is active and pending before the Planning Board, it would be a conflict for the adjudicatory board to step into an advisory role for an open case.
Once the moratorium is lifted, the Application will continue through the process.
Tom said the four changes that were made are:
Page 2, par. 1 – was stricken in its entirety;
Page 2, par. 2 – the words, “by the Planning Board” were stricken;
Page 2, # 3 & 4 – the word, “Ordinance” is changed to “Order”.
He described that his points were supported by a discussion and agreement of the Mayor, City Council and attorneys at the council meeting. The mayor explained that they had not established who will take up that role, but at the next City Council meeting, they will address this.
Tom said that the City Council voted unanimously to adopt the moratorium with his proposed revisions, effective immediately. Now that it is an official order of the council, the Planning Board needs to honor this directive. Paragraph 1 of the Moratorium directs that no action be taken. Tom’s advice to the Planning Board is to table the matter until such time as the moratorium is lifted.
Pam Mitchel asked if this order prohibited someone else from coming before the Board with another application in another district. Tom said that this is specific to the High Density Residential Zoning District.
Judy Dorsey asked why it didn’t take two readings. Tom said that he raised that point and in his opinion, anything which changes the affect of an ordinance, is an ordinance and pursuant to the City Charter, it requires two readings. He said that the City Council has acted and until such time as that City Council action is invalidated, it is the law.
Chair Hart reminded the Board that the application remains open, and the members of the Planning Board will not be able to talk about this with anyone. She asked that each and every one of the members uphold their oath. She said that they cannot take any further action on the application until the moratorium is lifted. State statute doesn’t allow a moratorium to exceed six months.
Ron Condon asked if it is retroactive to August, does the moratorium end in February. Tom Federle said the action states April 25, 2010 – 180 days from today.
Judy Dorsey asked if the Council makes any changes to the Ordinance, would it have to come back to the Planning Board for a recommendation to the Council.
Tom said that the Planning Board should not get in that position as long as there is a pending application before them. Also, three of the Planning Board members are also on the Ordinance Review Committee. They are Planning Board members first and so long as there is a pending application before the Board they cannot act in that capacity and the City needs to make accommodations for that. If the moratorium had been imposed before the Application was filed, the Planning Board could have participated in this.
David asked if the Application were to be withdrawn, could the Planning Board act in their capacity and look at the crematorium issue.
Tom said that he would have to give that some consideration. He said that some action by the Planning Board has taken place tonight. The first is the consideration of the October 22nd minutes of the site walk to ensure that they accurately reflect the discussions that took place at the site walk. That was actually an act on the 22nd meeting. The second is a recommendation that the Planning Board table the Application. He said if the Applicant withdraws the Application it would require some action of the Planning Board and he believes they would be prohibited from taking any action while the moratorium is in place. If that circumstance arises, he would have to look at it. Chair Hart said that if that circumstance arises, she will check
with the City Council.
Chair Hart asked how will the public be notified of future action on the application. Bill said they should notify the public as they do for any Application. Tom agreed. He said if the Council fails to take action and the moratorium expires, the Application that was tabled is again before the Planning Board for action and they would act on it as they would any other application.
Pam Mitchel asked what kind of action the City Council could take during this time. Tom said that they can’t do anything that directly addresses this Application that is before the Planning Board. Only the Planning Board has the authority to act on this and they are currently prohibited by the Moratorium. The Council is contemplating, either themselves or through a committee that they form, to study the Land Use Ordinance in the context of crematoria, not to review the Application that’s currently before the Planning Board and not to render any opinion or decision on the Application that is before the Planning Board, but to consider these other questions that are specified in the moratorium. The Council is able to do that, not withstanding all the prohibitions
that are in there. The prohibitions that are in there are targeted solely to an application for a crematory facility in a High Density Residential district.
Pam Mitchel asked if there was anything that the Council could do that would force the Application to be withdrawn or force the Planning Board to deny the Application.
Tom said that they could change the law. They could change the zoning back to where it was not long ago so that when the moratorium is lifted and the Application is back before the Planning Board, the Planning Board would be applying the law that is in effect at that time, not the law that was in effect an hour ago.
Pam Mitchel said that they have had other applications that were started under one Ordinance and completed it under that Ordinance even though a new Ordinance was passed. Tom said that the moratorium is retroactive to a certain date so any law is also retroactive.
Ron Condon said that the City Council voted to enact this Ordinance revision to allow crematoria in this district and the Applicant has incurred expenses in preparing the Application. He asked how an applicant protects itself from going through a process, spending money and then having this happen. Chair Hart said that this discussion should take place at the City Council.
James Montell moved that we table this Application. Pam Mitchel seconded the motion. James Montell moved to amend his motion to add: until the moratorium is lifted. Pam Mitchel seconded the amended motion.
Vote: 7 in favor. 0 opposed. Motion passed.
Chair Hart said that this Application is tabled. She said that the Planning Board will be considering other applications in the future and invite the public’s participation. She thanked everyone and the Planning Board for their service as well as Dorothy, David, Bill and Tom.
5.) ADJOURN
Pam Mitchel made a motion to adjourn. Judy Dorsey seconded the motion.
Vote: 7 in favor. 0 opposed. Motion passed.
Meeting adjourned at 6:44 PM
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