TOWN OF BUXTON PLANNING BOARD
September 14, 2009
Recorded by Hilda Lynch
Board Members Present: David Savage, Sr.; Jeremiah Ross, III; Keith Emery, Harry Kavouksorian, James Logan, Caroline Segalla, and David Anderson
Others Present: Jeremy Harmon, William Thompson (BH2M), Jennifer & Dan Jackson, Bob Gorham, Danny Reali, Marina Salang, Bob Horr, Bill Franklin, Flo, Fromi (sp?), Jerry Oliver
Chairman Harry Kavouksorian called the September 14, 2009, meeting of the Buxton Planning Board together at 7:03 p.m.
Pledge of Allegiance
PUBLIC HEARING: Daniel & Jennifer Jackson are requesting a Conditional Use Permit to house six goats at 165 Long Plains Road; Tax Map 1, Lot 194-8.
- Motioned by Keith, seconded by David Anderson, to open the Public Hearing. All voted in favor.
Jennifer explained that they’d like to house up to six goats and their offspring temporarily. They’ll be housed out back so can’t be seen from the road. They’ll haul off any waste generated. This is a 4-H project for her daughter. Harry asked if the manure would be covered, and Jennifer said it would. Jere clarified that six was the maximum number of goats. Harry and Keith mentioned that she had provided what was asked for.
Fred had no concerns. Harry asked if there were any abutters who’d like to speak. Bob Gorham is across the street, and he is all for it. He’d like to see more kids interested in 4-H. Harry asked for any from the general public, and none appeared.
- Keith motioned, seconded by David Anderson, to close the Public Hearing. All voted in favor.
Harry read the Standard Conditions of Approval:
1. All elements and features of the application and all representations made by the applicant concerning the development and use of the property which appear in the record of the Planning Board proceedings are conditions of the approval. No change from the conditions of approval is permitted unless an amended plan is first submitted to and approved by the Planning Board.
2. That the applicant be in compliance with all applicable provisions of Articles 8.2.B &
3. That the applicant be in compliance with all applicable provisions of Section 11. (if
4. All outstanding bills paid before building permit is issued.
- Limited to six goats.
- The manure pile would be covered.
- Motioned by Jere, seconded by Keith, to waive the reading of 8.2.B. and 10. All voted in favor.
- Motioned by Jere, seconded by Keith, that based on previous discussions, we find the application to be in compliance with all applicable provisions of Articles 8.2.B, 10 & Section 13.
All voted in favor.
- Motioned by Jere, seconded by Caroline, to approve the application with the conditions stated and from previous meetings. All voted in favor.
PUBLIC HEARING: Robert Horr & Marina Salang are applying for a subdivision amendment to Pinkham Development #3 for a land exchange to adjust property lines at 54 Seavey Drive; Tax Map 9, Lot 10G.
- Keith motioned, seconded by David A, to open the public hearing. All voted in favor.
Harry clarified that they were present to discuss the land swap with the Town of Buxton with their land. Harry asked for any questions from the Board. Caroline mentioned that the applicant had made requested changes.
Harry asked if there were any abutters or members of the general public present with concerns. He asked Fred if he had any concerns. There were none.
- Motioned by Jim, seconded by Keith, to close the public hearing. All voted in favor.
Harry stated that they would sign the amended plan this evening, and it would be sent to the registry. Danny said he could take it this evening to the Title Attorney.
- Caroline moved, seconded by Jim, to approve the amended plan to Pinkham Development #3 for Robert Horr and Marina Salang to adjust property lines.
Robert thanked the Board for their cooperation and patience in this matter.
The Board adjourned for five minutes to sign the Plan.
Bill Thompson will submit a correction to Homeowner’s Association documents to include drainage change for Pleasant Ridge Subdivision; Tax Map 8, Lot 40A.
Bill Thompson of BH2M Engineers spoke about the request for a 30 ft. utility easement in front of Lots 1 through 3 and just into Lot 4. It is solely for underdrains. They’ve kept it out of the road’s right of way. They’ve revised the Homeowner’s Docs to show the responsibility for Lots 2, 3 and 4—for any maintenance if that should be needed. There are solid pipes, a foundation perimeter drain on each of the lots for underdrains, a 4” pipe coming into a 6” pipe. All of this is within the 30 ft. setback so doesn’t impact the building areas on any of the lots. They want to have a gravity system about 4 ft. below grade. They’ve never seen a maintenance problem in 30+ years in the business. In the event that water came
back up the underdrain, it would never come back into the foundation because of a valve that will shut. It is a solid pipe so they don’t expect any impact from roots or such. They’ve provided an amended plan with a superseded note to cover this change. The Homeowners Doc’s will be recorded as an amendment to the original.
Caroline asked if the storm calcs would change in any way. Bill said they wouldn’t. She asked if they received anything showing the actual detail. Bill noted that it was on one of the pages submitted. Jim asked where the 6” pipe outletted. Bill said it would be on Lot 1; they have the riprap on that. Caroline asked if they should have a drainage plan showing the riprap to have in the file. Bill said they could provide one. Harry asked what kind of maintenance is required. Bill said there wouldn’t be any. There wouldn’t be a lot of water around a 20 x 40 foundation. The pipe is not perforated so won’t attract a lot of other water. Jere asked if there was a tie from the inside perimeter drain to the
outside. Bill says there is. Jere asked if it could come up from underneath. Bill didn’t think so. Jere asked why this wasn’t done ahead of time. Bill said they thought they’d have the ability to go out the back of the foundations, and they found out when putting up the first foundation that this wouldn’t work. They wanted to avoid sump pumps. Rather than going down the back of the lot to get into the open space, they decided to put them out by the road.
Harry asked Fred if he had any questions, and he had none.
- Motioned by David A, seconded by Jere, to approve the amendment to the subdivision of Pleasant Ridge. Six in favor; Keith abstaining.
Bill will provide the drainage plan for Fred and the Mylar.
Jerry Oliver of 17 Henderson Drive is requesting a Conditional Use Permit for firewood processing and bark mulch sales at Tax Map 7, Lot 26.
Jerry Oliver spoke about his proposal. He mentioned the noise. He has purchased a processor which works on an electric motor. This cuts down on the noise. He uses a biodegradable chain saw lubricant. Drainage in the back of the property has been addressed with a ditch he has put in to run drainage to the Webster Rd. The culvert he put in to access the back of the property is going to be removed. He would like to move forward.
Harry asked if he received the e-mail from the Town Attorney. Jerry had not. Harry said that the Board agreed to review this as a manufacturing use. It is a Conditional Use allowed in a rural district with conditions, Jim stated. The other half of the issue is the outdoor storage. Fred provided Jerry with a copy of the info from the Town Attorney.
Harry read the note from the Attorney for the record.
Harry polled the Board about the outdoor storage being an accessory use—incidental to the primary use. David A’s difficulty is that the ordinances as they’re written assume that manufacturing is an inside process. If one wanted to dig deep, because there’s not a separation between inside and outside, the storage is where the manufacturing is. It would be an accessory to the manufacturing. He gave an example of a barn with outside storage which wouldn’t be allowed. Since he sees the whole operation as outside, he would see the storage as accessory.
Jim follows David’s argument to an extent, but he thinks the storage of logs and split wood exceeds an area larger than the area of processing. He would have a hard time seeing it as an accessory. He’s okay with calling the operation manufacturing. If Jerry was processing it right into the truck, it wouldn’t be a problem. He thinks the Town’s Attorney is looking at the amount of area being used to determine the subordinate use. He thinks the storage of tree length wood and the storing of cut wood is greater than what would be permitted in the zone. It would be different if this were in a building because he thinks the storage as it is now is in conflict with the ordinance.
Jerry thinks that his proposal talks about a 50 x 100 ft. area. Jim is having a hard time with that part of the application—outside storage. Jerry asked about the time frame for something being stored. They don’t have a timetable for this.
Caroline could see how this could be considered manufacturing even though she generally sees manufacturing as happening in a building. It appears that the property has been used in a use similar to this. She thinks there is a precedent set for this. The storage being in a residential area is of concern to her. She thinks that just the fact that they’re going back and forth on this is evidence that it’s not permitted—trying to make it something that it is not.
Jerry mentioned that firewood has been processed on this property for 40 years; the only thing that has changed is the ownership. Jerry mentions the grandfather clause. Jim thinks it doesn’t apply to different individuals. Jerry understood that the grandfathering goes with the lot. Keith thinks the grandfather clause exists if he buys a piece of property where wood is being processed as long as he hasn’t allowed it to elapse for a year. Jim asked if it has been going on uninterrupted for 40 years. Jerry says it has been happening for this length of time. Jim says he would have to ask the Code Enforcement Officer. Caroline mentioned that they’d have to go for nonconforming uses. The burden of proof would be with the
applicant. Jere said they’d need documentation proving to them that there has been processing on this lot for 40 years. Jim mentioned they’d have to know that it hasn’t ceased for more than 12 months.
David A asked if they were getting too far off the polling. Jerry said he’s followed through with what Fred has told him that he needed to do—obtain a Conditional Use Permit. Jere said that if the Code Enforcement Office has decided that this property needs a Permit, Jerry would need to challenge the Code Enforcement Officer and go to the Board of Appeals. Jim asked Fred if he agreed with Jerry. Fred says he thinks there has been a 12-month lapse. Caroline clarified conforming and nonconforming uses. It can’t be more nonconforming. A Conditional Use Permit goes with the property not with the owner, Jere stated, unless it ceases for a year. Jim clarified that this applicant is coming before the Board for the first time
regarding this property. Jerry said that if he could prove this, then he would be okay? Jere said he’d have to prove that the operation hasn’t lapsed for a year for the last 40 years. Jerry thought that Fred could make this conclusion. Caroline asked about his current operation. Has be been cutting and storing the wood? Jerry said he had. It wasn’t an issue until a new owner bought on the Henderson Rd., he stated. Caroline asked if anyone came onto the site to purchase the wood. Jerry said, “No.”
Harry clarified that David A felt it was an accessory use. Caroline questioned whether the operation has ceased. Fred clarified whether you’re cutting the wood for your own use or cutting it for sale. When he started bringing in logs to process, that’s when Fred got involved. In reviewing the Attorney’s note, Caroline has issues with the outdoor storage and wouldn’t see it as incidental. Jim is leaning the same way. Keith says the storage is an accessory use, the same as a lumber yard or gravel pit. This time he doesn’t agree with the Town Attorney. Jere says it boils down to the use in the zone. He thinks it is ludicrous not to consider storage with manufacturing. Since it’s not allowed in the rural zone, if
they’re going to have effective zoning laws to limit this type of use in the rural zone, he agrees with Bill Plouffe. The wood is going to take up more space than the processing which would not be permitted in the rural zone. There are places in Town where this would be allowed. Jerry mentioned David A’s opinion. David A considers it accessory since the whole operation is outside. Bill’s saying it is incidental; David A says it is subordinate. Jere doesn’t feel it is an accessory use.
David S asked how long it would take him to cut a cord of wood. Jerry said about an hour. He could process it right onto the truck. He doesn’t store a lot; but he did store some when he had some time to spare. Usually, it is the tree length wood that is stored. David A says this is just one piece—the storage. David S says he would have to go with Bill Plouffe. David A doesn’t think Bill is giving them a decision. The Board would have to decide.
Jim asked if they wanted to read this in more detail, and he did so. Jim thinks that it would be incidental if it is subordinate and minor to the principal use. Harry clarified that they’re talking about storage before and after. Caroline clarified that he would have to have orders in place; they’d bring in the wood, process it and it would go out. Jerry mentioned that there is seasoned and non-seasoned wood and clarified that tree length wood could be left to dry.
Harry agrees with Bill Plouffe that this is not accessory to the use. Jere mentioned that he might want to leave wood to season. Jere said that technically he would have to process an 18-wheeler worth of wood when it gets there and then load it into a smaller truck to deliver to customers. That’s the only way he can see it working. Caroline says that she’s sorry the ordinances are written this way and that they have to uphold them. She understands Mr. Oliver trying to make a living. Jere says that this is zoning. This use is not permitted in this zone. Harry believes that the majority of the Board feels that this is not an accessory use. Jerry asked about it having taken place there
for 40 years and being done across the street. Harry wants to get away from what has happened across the street. Jerry’s application fits best with manufacturing but no storage is allowed. Harry thinks that if the outdoor storage goes away, then it would be easier for them to approve.
Jerry mentioned that there was no time frame listed. He said that he would have 10 hours if it takes him 1 hr. to process one cord. Jere said it would be okay if his storage wouldn’t exceed what he’s doing for processing. Jim said that if the stuff sits overnight it would be storage. He thinks the definition is loose but doesn’t encompass what Jerry would like to do for outdoor storage. He says that he couldn’t have wood sitting there for any length of time. He’s had 40+ cords go out in several months. There was considerable discussion about the length of time to define storage. Jere mentioned having it processed in Farmington. Jerry explains his process. The truck brings down 10-cord tree lengths—not split
Harry says he doesn’t see how they can move forward. Jim says they could go to a vote, or he could revise some aspect of the application to make it fit the ordinance. Jerry says he could come back every meeting, but where would it go? Jim says that he could ask for a vote.
Caroline asked about him taking this to the Zoning Board of Appeals. Keith and Jere mentioned that he has gone beyond the 30 days required to appeal Fred’s decision.
Harry re-stated that he would have to come back with an amended plan, or they could take a vote now. Keith stated that he would have to come back with a substantial change or he’d have to wait a year. David A clarified what would happen if this goes forward to public hearing. Caroline asked about him coming in and wanting to do something new without an operation being done there for 40 years.
Harry asked what he would like to do. Jerry said he would like to see this move forward. Jerry said he’s already made an investment.
Jere asked if they had received the drainage and wetland delineation that was asked for at the last meeting. Caroline said they hadn’t. Jerry thinks something is going through right now. Fred said that the floodplain is being revised now. Caroline clarified that five of the seven Board members don’t think that storage is an accessory use. So we’re proceeding with a public hearing? Some members thought that was what Mr. Oliver was asking for. David A mentions the poll is based on one segment of the approval/disapproval process. It could be indicative of an overall vote. He clarified for Jerry Oliver. Jere mentioned the process of the application not being complete.
Caroline doesn’t know how they could move forward with something if they’ve determined something isn’t a permitted use. Jere clarified his thinking. Caroline thinks they’ve already made that decision. The burden is on the applicant, she said. Jere thinks they have to go through the process. Caroline clarified that the applicant can prove that the nonconforming use has not lapsed for one year. Jere believes the members have to look at Fred’s opinion, the ordinances, the Attorney’s opinion, etc.
Jerry asked about bringing notarized letters from customers. Caroline asked about the person bringing the logs—would they have record of this? Caroline asked if they could go over the Code Enforcement Officer on this. Jere mentioned the difference between the use for himself and the use for others. Jim gives an example of the Aceto application. Keith mentions lumber yards. Jere says that a lumber yard would not be permitted in the rural zone. Jere and Jim clarified that his processing wood on his own property would not be of concern. Keith gave an example.
Caroline stated that the “grandfathering” is out if wood hasn’t been processed there for 40 years. Jere said he could challenge the Planning Board in court if he doesn’t agree. A public hearing and negative vote would have to be done. Jere says that the facts need to be looked at before making an arbitrary decision. The applicant could use the same plan? Do they need to provide something official from the Planning Board to Jerry so he would be able to take this to court? This is how the public hearing, vote, Findings, etc. would be used.
Caroline says that they don’t want to make him do a wetland delineation. Jerry says the wetland delineation is not accurate. Jere said he’d have to hire someone to do this. Jerry asked if this is what they’re requiring him to do. Based on what? He thinks they’re basing this on some pictures that were taken. David A says he saw wetland vegetation when he was there. Jerry says he mowed the whole property last year; but because of the greater amount of rain this year, he hasn’t been able to mow all of it. Jim says that if he hires a wetland scientist who says he doesn’t have any wetland, then he’d be all set on this. 8.2.B.7 – Jere mentions that he hasn’t seen this.
Harry stated that if they move forward to a public hearing, they’d need to see an erosion and sedimentation control plan, a wetland delineation, noise levels (of equipment being procured especially) of the processing, etc.
Jere refers to John Marion’s letter regarding an operation in Gorham similar to what is being proposed. He thinks Jerry will have to do some of the things stated in this letter. Harry stated that Jerry would have to go through the ordinance to make sure everything is covered. Things have already come up from the abutters so the Planning Board needs to see the items of concern addressed.
Jerry would like to have their request in writing. Caroline says that they could do a bullet list, and she would have Krystal get it to him (17 Henderson Rd., Buxton, ME 04093).
- Erosion & sedimentation control plan
- Noise readings
- Wetland delineation
- Distances to wells on the site plan
Caroline mentioned that he should look at a copy of the minutes of June 22, 2009, which addresses a lot of these things. Harry summarized. Caroline mentioned that the Plan should somehow reflect that he may not be looking at the outdoor storage. Harry stated that Jerry would receive a letter from Krystal with the items he’d need.
Fred stated that they’re in the final stage of getting letters out to people who are in the floodplain—a week or two away. Fred stated that there were about 400 people. Jere asked how many people were added. Fred said he didn’t think there were many more people. Jere asked about the new maps relaxing the requirements. Fred said it was more of a concern about accuracy. Jere asked what people would do if they had a concern about whether their house was in the floodplain. Fred said that in the letter they’re sending they’ll reference where people can go. There will be a letter they can send to FEMA if their house wasn’t affected in ’96 when there was a 500-year event. Jere asked how they would prove this.
Fred said that would be a starting point if they didn’t have an insurance claim. Jere asked if the maps they had done helped in this at all. Fred said they didn’t. Maps on Google Earth have been helpful.
David S asked if they took into consideration any water depths of Bonny Eagle Pond. Both ends are shallow, he said. Fred doesn’t know how they arrived at the base flood elevation they did. Fred said that a person in Standish’s surveyor found 268 – a spike in the root of a tree at Bonny Eagle Park which was being used as a reference for everyone. FEMA was using 271—about a 3 ft. difference. Caroline asked if they’d received a FEMA overlay she’d sent. Fred said he thought they had it. After Caroline’s description, Fred said he didn’t think he’d seen it.
Approval of Minutes:
- June 22, 2009 & August 10, 2009 – Caroline moved, seconded by Jim, to approve the
minutes of August 22 and August 10, 2009. All voted in favor.
- August 24, 2009 – Keith moved, seconded by David S, to approve the minutes of
August 24, 2009, as written. All voted in favor.
Approval of Bills: Pay Portland Press Herald $21.75 for legal ads for Joy/Brunk.
- Jere moved, seconded by Keith, to approve payment of the above. All voted in favor.
David A stated that he wanted the Board to know that in a summary he’s providing for each Board member, they started the year with $16,480. They added $7,000 via Article 30 in the June vote of the public and included $1690 in carry over. These monies added were for the mapping that had been ongoing. The total expenditures of $15,590 was 94.6% of the Budget. The largest part was the $10,374 for the shoreland and zoning mapping, slightly more than expected—a 13% override. With approvals of the Board of Selectman, they were able to close the year with a surplus of $474 which doesn’t include any salaries. $889.79 is shown but $415 must be subtracted because you can’t carry over salaries—can only carry over line items. If they have a
project coming up for which they haven’t budgeted appropriately, they can ask the Selectmen about a carryover of $474. He doesn’t have any ideas at this time.
He just got a letter three business days ago from the Selectmen. It was dated August 27th. They’ve gotten an extension to 9/22/09 for any carryover. He’s asking them to review quickly to see if there’s a place the $474 could go. The laptop is working fine. They’ve purchased an external drive so the info can be transported to the Code Enforcement Office’s secretary.
Jim would like a bug put into the Selectmen’s ears about improving the tax maps significantly – electronic availability. It might be sensible to do this. David A thinks it is a worthwhile thought. If they carry over for this, they’d have to work on this in the next fiscal year.
Caroline mentioned that they still have to do floodplain maps. Could money be used for this? She mentioned some more time with J.T. Lockman. Fred said the floodplain wasn’t part of the Planning Board’s jurisdiction. Caroline mentioned finishing up the shoreland zoning. David A says they have a line item for this in the 2009-2010 budget. It would have to be used before July, 2010. Jere thinks it should be used for shoreland zoning. Jere thinks they haven’t done badly in their budget. David A thinks they’ve done well. He could put a brief letter in to the Selectmen for shoreland zoning, and he and Harry could submit it to the Selectmen.
Jere asked if they were okay with this year’s budget, and David A believed they were. He doesn’t think it has been announced, but he doesn’t think there will be a change in the mil rate. Jim would still like to see the tax maps done. Keith agreed. David A said they’d have to ask for an article for this. Jere mentioned that maybe Fred needs to think about putting an article on the warrant for $5,000 for some years to pay for this. Jim said the Board could support Fred in this. Jim thinks it would be good to get a sense from Eastern Mapping. Fred thinks they’ve had SMRPC look at them. Jere mentioned the errors on them when J.T. tried to put some together.
Note from the Maine Dept of Agriculture regarding animal welfare – changes the definition of a kennel from the State’s point of view. The Town has a slightly more restrictive ordinance than the State. Issues about the Vets being allowed to issue dog licenses, info about Animal Control Officer, etc.
Review Findings for Narragansett Business Park – Harry believes this has been taken care of
Sign approved By-Laws – Harry mentioned signing these before leaving this evening
A Planning Board member received a phone message with a complaint, so he would suggest that a return number be left if they are to address an issue. No individual Planning Board member can act individually. If it’s a current thing, it would be an inappropriate thing.
Caroline said that she received an anonymous message. She couldn’t provide the woman with a response. She would like to let the public know that they are more than welcome to attend meetings. She felt bad that a resident has concerns but hasn’t come in so her concerns haven’t been addressed. Comments can be submitted in writing for the record, and the Board will receive these. Jere said that you can talk with a resident about the process and encourage participation. Jim was referring to anything that is currently before the Board; they can’t discuss anything about current projects. Keith says that a reporter can’t get a comment from the Board, which is the appropriate thing.
Review proposed Shoreland Ordinance Changes, Map and Zoning Map – Caroline asked if they could adjourn to a workshop for this. Harry said they couldn’t do this because a vote would be required. Harry mentioned that zoning changes needed to be to the Selectmen a week from today. Jim thinks there are some pretty meaty issues. Jere asked about having a workshop on the 21st? Keith thinks the Selectmen have got their timeline, but it could be backed up a week. He thinks they could have it to them no later than the 29th. Keith mentioned that they’d have to vote on the 28th. They’d have to ask Krystal to get in touch with J.T. to get info they need. Jere asked if they wanted to have
this on the Nov. ballot.
Caroline asked about a problem with DEP. Jere thinks the next meeting will be fairly light. Jim thinks they need a full workshop; he thinks this most important thing always ends up at the end of the meeting. Caroline asked if they could have J.T. and legal counsel present. Jim thinks this is a tall order. Jere thinks they could submit the draft to the Selectmen on the 22nd. They would vote on the 28th. They give it to the Selectmen, and they would decide to put it on the warrant. The changes would have to be done by the 19th of Oct.—seven days before. Caroline will ask Krystal to have J.T. get changes to her—insert them in a final document. They may not get the revised version before the
end of the week. Jere asked for some clarification, which Caroline gave. The information she sent them were from her notes; they’d have to make determinations whether they’d insert more stringent items.
Harry clarified that their plan was to workshop on the 21st . They would try to have J.T. and legal counsel. They would at least have J.T.’s stuff. The Selectmen’s deadline is the 21st. They could send it to them and let them know that it has gone for legal review. Jere asked about 7 p.m.? Others agreed. Should this be first on the agenda for the next meeting? They’d vote on the 28th and then send it along.
- Motioned by Jere, seconded by Keith, to have a Planning Board workshop to address the shoreland zoning ordinance at 7 p.m. on September 21, 2009. All voted in favor.
- Motioned by Caroline, seconded by Jim, to adjourn the meeting at 9:16 p.m. All voted in favor.
Approval Date: __________________
Harry Kavouksorian, Chairman Signature Date