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Town Seal
Planning Board Workshop Minutes 10/18/2010
Workshop Minutes
October 18, 2010

Recorded by Krystal Dyer

Board Members Present:  David Savage, Sr.; Jeremiah Ross, III; Harry Kavouksorian, James Logan, Scott Havu, and David Anderson.

Board Members not in attendance:  Caroline Segalla

Others Present:  Henry Huntley, Penny Booker,

Chairman Harry Kavouksorian called the October 18, 2010, meeting of the Buxton Planning Board together at 7:00 p.m.

Pledge of Allegiance

Tonight’s meeting is a workshop with JT Lockman of Southern Maine Regional Planning Commission to discuss Shoreland Zoning Changes:  Having no questions form the audience, Harry asked JT what the criteria did DEP required him to use to create the maps.  The first is to identify which water bodies, wetlands and streams are in the program.  Buxton has had Shoreland Zoning since the program started in 1974.  The open water ponds over ten acres are already listed by name in the Buxton Ordinance.  The next item is identifying which streams get shoreland zone.  If you have a pond, the state regulation default is to put a 250-foot buffer around the pond, but under the home rule, Buxton has a 300-foot buffer.  The most restrictive zone is RP zone only allowing minimal activities.  The Limited Residential (LR) you are allowed to have houses all around the pond within the 300-foot buffer zone.  Setback is how far the building has to be from the water.  JT explains that if you have a house within the 300-foot buffer, that house has to be 100 feet from the water along with other standards.  If you own a Shoreland Limited residential lot on a pond in Buxton the “zone” is 300 feet, he dwelling has to be 100-feet from the water.  DEP also states that if there is a an area with over 20% slope and 2-acres in size within the 300 foot buffer this area is marked as Resource Protection.  If there is a Forested Wetland within this area having over 2-acres, also has to be Resource Protection.  If the Inland Fisheries and Wildlife (IF&W) says this area is an inland wading bird and waterfowl habitat area, the whole 300-foot area is Resource Protection.  In order to change the 300 feet back down to the States 250-feet, the town would have to vote to do so.

DEP has request to use National Wetlands Inventory (NWI 1994) the wetland classification EM (emergent) -
Open water or Grass and short plants sticking up out of it.  Scrub shrubs (SS) – scrubby and shrubby harder to get through and you get a lot more scratches.  Forested (FO) – (P) Polestrian soil – around all wetlands – DEP requires EM and SS together creating over ten acres, than he puts them on the map greater than 10-acres and treated like a pond, equals a 300-foot zone around it.  The setback is 100 feet from the edge of wetland.  If a forested wetland that came over the same Zone, that piece would be Resource Protection.  The FEMA flood pain will also be RP Zone.  This area would not be able to get a building permit due to flooding.

Harry said that DEP does not require use to regulating a forested wetland.  The only portion of a forested wetland that would regulate is if it is connected to a non-forested wetland.  JT said if it’s over 2 acres in size and in the buffer combined with other.  If standing by its self than NO.  Cannot fill if a forested wetland that touches a wetland it is in the guidelines.  Changes where made between attorney, the Board and JT, but he has not kept up with the text changes in the last year.    

Scott Havu asked if the town decided to make amendments, it would take about a week to make changes to the document depends on the extent of the changes.  How long does it take to crate a map from scratch?  JT said from scratch it would take about 50 ro 60 hours.  Scott asked how long it would take to change the buffer size from 300 to 250-feet?  JT said it would not take 60 hours, but it wouldn’t be simple, the whole map has to be taken apart the put back together again.  SMRPC can give another estimate.
David Savage confirmed that weather you have a 250 foot or 300 foot buffer, the setback is still going to be 100 feet. Yes, JT confirmed.

Jim asked to pole the Board and questions that when the Board instructed SMRPC to re-due the maps was to instruct to keep the 300-foot buffer around the water bodies we have and anything otherwise identified go with the minimum State standard.  I was quite surprised at that point that it was in there.  JT felt it would be more difficult for the Code Office to figure out if the property was in the shoreland zone or not, if 300 or 250 section.  the zone and than the 300-foot buffer did not occur to have deferring shoreland zones.  Jim going back to the idea Jim is struggling with what the DEP program and guidance is indicating that we now call water bodies out of what is scrub shrub and emergent wetlands.  Now we are using shoreland zoning to protect wetlands.  JT said they have always been in the program.  This idea is not new.  JT brought the old wetland maps dated from the 1989.  All DEP did was replace those Fresh Water Wetland maps with the National Wetlands inventory maps.  These maps where required to be in the early 1990.  

Jere asked JT to explain the process of how the 1994 National Wetland Inventory map was generated.  The Department of Interior Federal Government a long time ago.  They used aero photography back then and felt it to be a lot more accurate.  Jere asked how do you transpose that map onto the Town of Buxton’s Shoreland zoning map.   Start with the website for Maine Geographic Information download the NWI wetlands and click on them and they pop into the town of Buxton’s map.  Not able to edit the wetlands, but can ask the computer to calculate the ones that are over ten acres.  Once designated out they then ask the machine to draw a 300 feet buffer around the area.  Jere said there are six or eight new areas on the new maps since the 1994 maps.  JT has done this same process for other towns, all electronic no field work.   Twenty-five towns out of 39 are complete with shoreland zoning.  This is a very hard question to answer because every town has customizations that are in exceedance from the States version.  Very few towns have done nothing and others have never complied from 1992 guidelines.  Jere asked how long it will take DEP to impose the State mandated ordinance on the Town of Buxton?  JT said he met with Mike Morse and he said this Fall.  Once the town has an order against it the only way to rescind that is to adopt the Shoreland Zoning at town meeting per DEP requirement.  The order process is, they will send a letter referencing where the ordinance is out of compliance and this order will supersede the proposed ordinance and the town will have to use the State order until the corrections have been made after the town has voted.  The state will not give you a free map to adopt.  Jere - what is the disadvantage to letting the DEP impose the ordinance?  JT - It is very confusing to read both the State and regular Town ordinance.  
Scott- when the proposed maps where created did you digitized any of the boundaries or waterbodies?  JT – No, it would have cost $100,000 to digitize them.  Jere asked JT to explain the difference.  York and Kennebunk town developed their own and surveyed their own land.  Ariel flights, ground control, field to create custom mapping.  Based on global satellite positioning, they where mapped.  
Harry asked if a landowner does not feels their property is in a wet area, what can they do?  If a professional engineer/surveyor determined that the emergent wetland is less than 10 acres and presented the creditable evidence to Mike Morse at DEP  – he would be fine with the info and would take it off the IFW map.
Jere said that DEP went to a property at 174 Parker Farm Road and issued a field determination form which says it a 2,000 square foot open water emergent vegetation wetland states they have jurisdiction over the regulated activities that occur in it, within 75 feet of wetlands why 75 feet instead of 250?  JT explained that DEP runs several different programs. Natural Resources Protection Act (NRPA), Significant Habitat, IFW and Shoreland Zoning. The municipal map is only required to have those resources that come under the Shoreland zoning program.

Public questions: Cliff Thomas asked if the Board had copies of the wetland maps that Mike Morse gave to the Board in June.  Mr. Thomas has the Buxton wetlands characterization map from IF&W.  JT said he used the NWI map that DEP asked him to use. This  map depicts all wetland show on the NWI maps, but categorizes them based on a sub set of wetland function.  Stating it’s the same map that NWI uses.  JT said they did a characterization and took the NWI wetlands and in the IF&W series, they evaluates them as to how rich or productive the area is.  Mr. Thomas said that based on your assessment you only need to put half of the area shown as forested wetlands.  JT said he was required to add the emergent wetlands together and the forested wetlands that where within 300 feet of the emergent and scrub shrub are in resource protection.  That’s why this area is limited residential and the other is resource protection.  Mr. Thomas asked what about the rest of the wetlands shown on here that don’t come down of this map.  The don’t need to be in shoreland because this one separated out and that’s scrub shrub wetland is less than 10 acres even when combined with the emergent.  Mr. Thomas has a 2006 Town of Buxton high value freshwater wetlands that shows wetlands that is not picked up on the other map.  JT said he was required to use the map one dated May of 2008, which was the most current map directed to use from DEP.  The State took a lot of high value wetlands out of their program.  The difference is that the Modern high value is a smaller version and the NWI is more inclusive of what is needed on the map.  Comparing two sets of data.  Maps have been updated and.
Cliff just picked up new significant Wildlife habitat maps dated 2010, it seems inconceivable not to show on the map.  JT said it is normal to only show open, emergent or scrub shrub and over 10 acres. JT said the real issue for the Planning Board is did I miss any open wetland or scrub shrub type or wetland that are over ten acres.  Jim said the bigger question is for the Board is whether to change from 300 to 250 feet.  
Cliff said the area is forested wetland and covered with trees, he would like Mike Morse or someone to come out from DEP to take a look at the area.  One the Shoreland report to the 124th Legislature it lists site visits under Miscellaneous Technical Assistance on page 6, It states the staff’s policy is to respond to all site visit requests within 14 days of the request.  Cliff said it would have to come through Fred.  Harry confirmed that it would have to come from Fred, Mike Morse said he will be very happy to help the Code Enforcement Officer determine whether or not there is something different than what the map indicates.  JT explained that there are only three people in the State of Maine currently in the DEP office. Cliff said that on page 12, the cost of doing the implementation for the Town drafting a suitable zoning map and public notice costs.
Cliff said there are other info in the ordinance that are way overkill.   For example the streams setbacks are – 300 feet and can be dropped down to 75 feet and the definition of Forested Wetlands.  Jim asked cliff to go on record that he wants this proposed Buxton ordinance relaxed.  Cliff officially requested the Planning Board to drop the setbacks down to the state minimum.  
JT explained the State minimums for streams by adding that DEP requires at a minimum second order streams and above.  A second order stream is below the confluence of two perennial branches.  As more and more streams join, it increases to a third order stream, fourth order stream etc..  First order streams are not required to have a 75-foot setback.  If yo have a tributary that drops straight into the river with no branches it would have a 75-foot stream protection zone with a 75-foot setback.  Outside of the 75-foot you can have a lawn, but within the 75 feet you cannot even cut trees or cover lot more than 20% with pavement, buildings etc...  Jere said primarily the Town has no public drinking water source, it’s possible that the Town’s people voted to keep the 300-foot setback, trying to protect the groundwater aquifer that feeds all the wells.  Jim applauds Jere’s comment and said the resource protection benefit to this ordinance.  Not only to protecting the individual landowners rights, but protecting the public welfare.  
Resource protection was put into place due to public health and welfare not having a

Scott trusts that DEP considered those issues as an agency, being their sole purpose and the standard set fourth is sufficient.  They all and felt the 250-feet on great ponds and rivers and 75-feet on streams was sufficient.   David A. said set it out to the voters and let the people vote.  David A. asked the NWI map was dated 1994, having a 16-year difference – things change, will there be any more mapping coming out that is more current.  JT said he is not aware of anything coming.  Other Town’s have spent their own money to physically go out and survey the town. Scott will get some information from the other company and ask them to come to meeting and propose a formal proposal from company.

How accurate are the maps and why should we adopt the maps if it is not accurate?  Scott said there are other ways to make the shoreland zoning maps and explained the digitized process.  The cost from Aerial Survey and Photo, Inc. to create a survey for a town like Buxton is between $1,500 and 3,000.  They use a different mapping method than the town currently uses now and can they can use the 1994 NWI.  They have created maps for several Towns including Fayette.  He has a draft copy of the Fayette Shoreland Zoning map created by Aerial Survey. Jere asked if they would re-write the text also?  Scott will get some information to bring to the next meeting.
Cliff – Doesn’t believe it would be very difficult to take the existing map and existing ordinance and bring into minimum
compliance before the town starts looking at the other stuff that is added on.  Jere explained the process of re-mapping and explains this is an act mandated by the law and there is nothing the Board can do.  David A. questions the difference it will make between 250 feet and 300 feet, how is the 50 feet making such a huge difference for people in this town.  Cliff Thomas said it’s the building setback from the wetland area, the landowner will lose a building lot.  

JT suggests developing an advisory question to the town.  Rather take protection off the four brooks and go down to 75 feet and from 300 to 250 take to town vote, and then continue with the mapping update.  JT excused himself from the meeting.
Cliff points out and area shown in resource protection zone, but it has a beaver damn, which is creates more water.  Jim said that DEP does have a provision for manmade/beaver areas.  Emergent vegetation may not have been classified or changed by beavers.  Cliff asked why the town is spending thousands of dollars on maps when the DEP is give the town a free one?  JT said the DEP is not going to give the Town a map.  

Henry Huntley has come to the conclusion, he will have to have someone from DEP to come out and determine what his land is categorized as.  The biggest contention is that there are not wet areas, but that most if not all would fall under forested wetland.  Henry would like to check the Town minutes or check with the town elders to ask why they did change the setback to 300 feet.  Jim said that possibly way back from the previous Comprehensive Planning Committee that there may have been some outlook from their perspective for the streams and or the water bodies.  Henry said as a land owner, tax payers and citizen he would like to relax some of these regulations.  He references some exclusion in the limited shoreland residential zone, not allowing daycare etc.  Henry will do a little research before the next meeting.

Brent Havu said he was involved in reworking the town charter with the Charter Committee came up with the idea to eliminate the town meeting, but there was a lot of resistance from the Town.  He would caution to say the real group as being secret ballot.  Harry said that the question would reach a broader range of people who vote, where at the town meeting only those who chose to attend would vote on the article.  The ordinance changes have traditionally been done at the annual town meeting.  They can be changed to secret ballot vote, but they would no longer be able to be changed to annual town meeting subsequently.  Jim said he believes it was just an advisory question as to whether the Board should sink time and money into doing this over again.  Mr. Havu miss understood the intention.  Jim Clarifies the drawing for Mr. Havu.
David A said that is the biggest issue he had, is that things have changed in 16 years.

David S clarification on whether we need to have forested wetlands – Harry said if there is a two-acre or greater forested wetland that touches a non-forested wetland the area within the 300-foot zone becomes protected.  On page five the area was crossed out, it has already been corrected.

  • Motioned by David S, seconded by Scott, to adjourn the meeting at 9:10 p.m.  having no discussion the motion passed with a 6 – 0 vote.

    Approval Date:  __________

_________________________________           _______________
               Harry Kavouksorian, Chairman                    Signature Date

Town of Buxton
  185 Portland Road, Buxton, ME 04093 (207) 929-5191
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