Town of Buxton Planning Board
September 13, 2010
Recorded by Hilda Lynch
Board Members Present: Scott Havu, David Savage, Sr.; Jeremiah Ross, III; Harry Kavouksorian; Caroline Segalla; and David Anderson
Board Members Absent: James Logan;
Others Present: Henry W. Huntley, Cliff Thomas, Jean Harmon, Penny Booker, Brent Havu, William J. Cowie, Raymond P. Landry, Rita A. Landry, Shyla Murray, Larry & Pat Smitt, Stephen E. Nichols, Anne Williams, Jerry Williams, Daniel P. Chadbourne, Anthony Garrity, Heidi Carter, Carlton Bryant, Pat & Bill Sanborn, Rob Hunt, Mary E. Townsend, Peter J. Mills, Chad D. Havu, Janice Grant, Peter G. Grant, Gary Charland, Amy Elderkin, John L. Chores, Catherine Lamson, Linda Sanborn, Lindsay Havu, Eric Kirmes, Heather Rumery, Theresa Havu, Bill Havu, Allen Thomas, Pat Packard, William York, Anne T. Robishaw
Chairman Harry Kavouksorian called the September 13, 2010, meeting of the Buxton Planning Board together at 7 p.m.
Pledge of Allegiance
Workshop to discuss the upcoming State mandated Shoreland Zoning changes. If you are in the Shoreland Zone, please plan to attend with all your questions concerning Shoreland Zoning and how it will affect your property.
Harry mentioned a letter that they’d received from possibly Cliff Thomas. Caroline said she sent a copy and asked Krystal to prepare copies of the answers to the questions. Harry mentioned that the question was asked whether the Board would start from scratch and explain the shoreland zoning requirements.
Jere explained that the State has passed a law reclassifying the areas within the shoreland zoning in Buxton as areas of special consideration. The Town had until July 1 of last year to make any changes. The zoning ordinance changes didn’t pass at town meeting so the State has mandated the changes they’ve made. DEP has a 250’ setback from great ponds, wetlands, etc.; and streams, a setback of 75’. Buxton has had a more stringent requirement of 300’ which the State allows. The Board has talked about possibly reducing the 300’ to 250’, and Harry stated that this would have to be approved at town meeting. If the taxpayers don’t pass what the Planning Board has put together, then the State requirements would stand.
The Town has some options, which Caroline summarized. The Planning Board has written the changes up to allow for a 1500 sq. ft. dwelling in the resource protection district. They thought it was a serious issue for people who had purchased land planning to build on it and finding that they could not. There was an 8’ x 10’ storage shed allowed for people to have some storage. They could discuss reducing the 300’ zone to 250’ as the State mandates. The Planning Board wanted to have the ability for administrative map corrections. Now, DEP has to come out and investigate, and the Commissioner has to make final approval. They wanted to allow the Planning Board to review some appeals that homeowners might have and some documentation
could be provided them to determine whether the land is in the shoreland zone. There would be a public hearing and process so someone could proceed to build. It would still need to go to town meeting and the commissioner for approval. This could get the person going.
Bill Cowie lives on River Rd. He asked about a larger shed already on the property, and would it be grandfathered? Jere said it would be grandfathered.
Caroline mentioned nonconforming lots and said that people don’t understand how this relates to building in a shoreland zone.
Harry said the Town was asked if they could hire someone to come out to evaluate wetland areas, and he doesn’t believe the Town would pay for this. The DEP guideline is that they’re regulating 10 acres or greater nonforested wetland. If you have less than 10 acres, it doesn’t fall under this. The Buxton ordinance also regulates forested wetlands. Harry says they’re looking at forested and nonforested, which is how new areas got added to the map. Harry doesn’t believe any maps from DEP would be digitized as an overlay.
Jere asked if DEP is going to base their assessment on our maps. Caroline said they would be using the National Wetland Inventory. Jere said that they hired a consultant, SMRPC, to locate those areas on the map proposed. Caroline says that the maps come from Maine GIS, which are overlaid on the Buxton maps. DEP would do the same. Someone asked if it was available online. Caroline thinks there is a PDF map that Krystal has, which she will check on. Jere asked if SMRPC identified six new areas in Buxton that were not on the old shoreland zoning map?
Caroline said the Town was using the ’85 version so it hadn’t been updated from the newest maps. That’s why additional areas appear that weren’t on there before. The DEP uses the National Wetlands Inventory. If anyone doesn’t agree, the burden is on the homeowner. If the Town agreed to invest in a wetland delineation study, it could be done at taxpayer expense. Jere stated that other towns have done this. Caroline doesn’t know what DEP’s time frame is. Jere mentioned DEP’s limited staff now to come out and do assessments for landowners. There are only three people working in all of Southern Maine. Harry asked if people had further questions.
Eban Rank spoke about a brook that runs through Groveville. Is the setback from the stream only 75’? Harry said the setback from streams is 75’. Can one cut any trees within the setback? Caroline said there could be selective cutting.
Harry said that the motivation for DEP is protecting resources. Caroline went over a list of things that they’re attempting to protect.
Henry Huntley was following up on the 2nd tier. Isn’t it in essence a “taking of land”? Caroline says that you can still build, but there are setbacks that have to be recognized. Subdividing the land might mean clustering it so that a person would get less buildable lots. Henry asked if this is different than it has been for the past 40 years. Henry said that there is an assumption that this is the way it is when he doesn’t think that’s the case when you see the number of people affected. Caroline mentioned that this is why they invited the State reps. Henry mentioned that owners should be remunerated for the land that they can’t build on. For land taken by eminent domain, the landowners would be compensated for it. He talked about the limitations on the land that he owns. He says that he has 60-65 acres left of which 32 acres won’t be usable. He is upset about J.T. Lockman taking land that the DEP hasn’t already designated as wetlands.
Harry mentioned that sometime in the 90s, forested wetlands was addressed in Buxton.
Can’t the Town start with the mapping that DEP sends out? Henry asked. Harry says this is something that bears investigation. He says that we’d have to change the ordinance that says we want to regulate forested wetlands of 10 acres or greater. Henry says that DEP is imposing now, which is greater than what they’ve sent us for a map. J.T. Lockman went beyond that with a half dozen properties. Harry says this is a valid question--to go back to DEP’s maps. If some of these properties could be identified with someone competent in Town, can the map be adjusted here? If we could kick back to the minimum and investigate about eight areas, this might help. Jere says this is why the Town should accept the shoreland zoning
ordinance because then we’re going to be stuck with DEP. The tone of Mike Morse’s conversations is that the Town had their chance, but they didn’t accept the shoreland zoning map. What the DEP would propose would be less restrictive, Henry stated. Someone suggested changing the ordinance. Henry thinks we need to back up a little to make it less restrictive. Why can’t one have an accessory dwelling in the resource protection area? Henry asked. Caroline said they were going to allow a 1500 sq. ft. single-family dwelling in the resource protection district. Caroline says that the version that people are looking at doesn’t include four items, one of which is the 1500 sq. ft. family dwelling.
Harry will investigate whether they can adopt just the minimum although he’s concerned about Buxton’s ordinance regarding the forested wetland. Harry says we know that the change from 300 to 250 ft. has to be changed. David A says that they realize things have changed, but the majority of the Town voted these things in back in the 90s. An audience member said that the voters did not accept this at the last Town meeting.
Bill C stated that the previous speaker said that the only way to back up is to repeal the ordinance that requires forested wetlands be included with nonforested wetlands. He thinks this would help Henry. Henry says he doesn’t have the money to have someone come out to mitigate the wetlands. If it is 10 acres or less, this doesn’t apply, Harry said. Henry says that’s what he needs some help with. He says a lot of people don’t get involved because things change incrementally and then things reach a “tipping point” which is where he thinks things have come.
Harry says that the Town can have a State imposed ordinance repealed as long as what they come up with meets their minimum guidelines.
Bill Cowie says that the issue here is not an issue with State imposed regulation but with the Town ordinance that lumps forested wetlands in with what the State is doing. He thinks the Town could repeal this ordinance to take this property right off the map. He thinks this is something that might come out of this meeting, this suggestion to the Selectmen. Jere mentioned the 250’ setback, also.
Caroline asked if they would have to have a public hearing on this at the next meeting, and then it could be put on the November ballot. Harry said he believes this is so. Harry quotes from the DEP info saying that they don’t know what their time frame will be. Jere asked if DEP’s guidelines have been imposed now. Harry doesn’t think so. Caroline would hate to see them having wasted the $8000 that they’ve spent on maps and revisions. Jere clarified that they’ve spent $8000 of taxpayer dollars to update these shoreland maps. Harry stated that if the 250’ is changed and changed from forested to unforested, the maps would have to be revised again. David A says it wasn’t $8000. He had a zoning map done and then he did a
shoreland overlay. He needed the zoning map to be updated. Unfortunately, that map was also turned down. Harry clarified that there were three components to the $8000 spent.
Brent asked what part of the ordinance he’s referring to that includes the forested wetlands. Harry said that what he heard from DEP was the first he’d heard of differentiating between forested and nonforested. Jere wants to check up on this. Harry said that Mike Morse told him this on the phone last Friday. Caroline referred to the DEP definition. We have in our ordinance only wetlands associated with great ponds and rivers, she says. Harry says there is another contradiction. The DEP says they do not require us to regulate forested wetlands. Info from SMRPC says something else. Harry believes it bears looking into and investigating.
Henry thinks that what the DEP wants from us is what has been identified by Inland Fisheries & Wildlife (IF & W). He thinks SMRPC assumed that the National Wetlands Inventory should be used. Caroline says that we’ll have to make sure the ’94 version of the National Wetland Inventory is used. Henry mentioned a map prepared by IF & W dated 12/31/08. He refers to a letter Fred received. Caroline suggested getting a copy of the letter that Fred has. The Dept. of Inland Fisheries and Wildlife has completed map revisions for our municipality, and they included a map. She thinks a bullet list should be done and include this letter/map as one of these items. Send this info to Mike Morse, document the things they’d want to
change, and bring back information for a public hearing.
Brent Havu says he’s not sure about the timeline for the November ballot. As long as Buxton voted on this, then this could be addressed at another time. He’s concerned about spending adequate time. The time is rather tight. Why would it be ideal in November?
Harry said that they would avoid the imposition of the DEP guidelines. They’ll go with whatever is more restrictive in the Buxton ordinance. They wouldn’t allow the dwelling in the resource protection area or the shed. Jere mentioned that any of these ordinances could be amended by town meeting or secret ballot at any time. Any amendment to the shoreland would have to go through the Commissioner, Caroline stated.
Bill C. asked if we could make an amendment at any time? Once their maps are in print and in law, is it going to be more difficult for us? Harry says that we know for a fact that we can go back and change things. Bill thinks it should be done before the State imposes this on us. Is there enough time to get it right? Jere says that the map is as good as the amount of money you want to pay soil scientists, wetland delineators, etc. Bill says that if we repealed this map, would they know the difference? Are they aware of what the Town has approved. Harry stated that the DEP approved the version that went before the voters. Jere says they haven’t done any assessments in town. Bill says that none of the forested
wetlands would be included if not included in the Town’s ordinance.
Brent mentions that in the Charter any ordinances that are voted on by secret ballot can only be changed by secret ballot. Jere clarified that if this map is approved by secret ballot, it could only be amended by secret ballot. Harry says that historically these things are only done at town meeting.
Brent says that SMRPC took it upon themselves to make changes in this map. Can they be asked to fix this at their expense? Harry asked this question and didn’t get a satisfactory answer. Caroline said that J.T. Lockman sent a letter asking a number of questions of DEP about the requirements they’d have. SMRPC is going by the ‘94 version of the maps. Caroline mentions an ’08 document she’d have to look at. Brent asked if an ordinance by rule would happen in October. Jere says that they don’t know. Mike Morse has December, but it is not set in stone. It might be only a few months that we’d have the ordinance by rule before the town meeting.
Harry says that the issue for verification: Can we just take the DEP’s minimum guidelines as written and adopt those? (Harry thinks our ordinance would have to be changed.) Mike Morse says that Buxton requires forested wetlands. Harry hasn’t found forested wetlands in the ordinance. SMRPC is saying that DEP required what they’ve done, but DEP is saying they didn’t.
Brent mentioned a question at the last workshop about sending something back to a vote in less than a year. Jere says that if the Planning Board makes a decision on an application, the applicant has to wait one year before resubmitting. The question about whether it has to be revised before it can be sent back was raised.
Scott read 7.3. Harry clarified that this is related to petitions. Brent asked for a legal opinion on this. Caroline has a letter from William Plouffe. Harry said the question was asked about the zoning map. Bill talks about a unanimous vote of the Board. It was not something done by petition. David A mentions being literal using the word “petition.” Any issue coming up for vote would be considered a petition. Harry says that the ordinance requires a unanimous vote of the Board before it can be brought to a special town meeting. David A says it would still go to the Selectmen for approval.
Harry asked if Rep. Hunt is here. Rob introduced himself. He says that he believes the general consensus is that people would like to revert to the minimum standards for shoreland zoning. He thinks the Board has heard a lot of info from concerned property owners and will take this under consideration. The Town’s ordinances are more restrictive.
Harry says that if he asks if people are in favor of clean air and fresh water, etc. that they would say they are. In order to do this, they might have to place more restrictions on land use. If people are asked if they are willing to restrict their land use somewhat, then things change. Caroline talked about what she does on her property impacting her neighbor. People with significant acreage can still build but would have to cluster. Bill C says that if it comes up to a vote, a majority might say they want clean air and trees.
Jere said that he knows things are really tight in Augusta, but he would think that DEP should fund an additional couple of positions for people to go out and investigate things for landowners. Rob says that the realities are that $12 million had to be cut and tough decisions had to be made. He’s hearing that you want him to go up there and get more funding for DEP. Harry commented on the State passing a mandate down. Rob says there isn’t anything he can do right now. Rob says it is up to the townspeople to make sure their representative does what they want in Augusta. He believes it is totally unfair to have the onus on the property owner.
Jerome Williams says that the DEP in their newsletter says they have 40-50 little towns with these mandated ordinances and a list of towns who haven’t submitted yet. He says they’re swamped up there now. He says there is no hurry for Buxton to deal with this, and they can take some time on this.
Cliff Thomas mentions the notices of rule making in the newspaper giving the impact on municipalities or counties; it doesn’t mention the impact on the individual landowners. He thinks the individual landowner needs to be taken into consideration when these rules are made up. He mentions the State robbing the employees’ retirement fund; the constitution is amended to prevent this. This land may be people’s retirement; and when this land goes away, a person’s retirement goes away. He wants the same kind of thoughtfulness out of Augusta. He thinks it would be a good thing to forget about the shoreland zoning map for a couple of weeks and concentrate on Buxton’s zoning ordinance Perhaps another workshop or two could address this. Maybe
a special town meeting could be held to vote on this stuff before looking at the State’s mandated shoreland zoning stuff.
Jere doesn’t see a big rush to get this on the ballot in November. Harry mentioned getting it on secret ballot would forever tie this issue to secret ballot. Board members thinks they should continue the process. Caroline says that ordinance changes need to be done, also. She thinks they could be done in the next two weeks. She’ll send the last version to Krystal. Harry says he will be in contact with Mike Morse tomorrow. Caroline would like a Q & A version to have on the website.
Bill asked if Mike Morse or someone from the State could come to a meeting. They’ve declined. They’re willing to work with the Code Enforcement Officer or the Selectmen. Perhaps the CEO could attend the next workshop. Harry talked about going back to changing some ordinances. Jere says that one of the things learned is that they needed to make sure more people were involved. What they’ve learned is that they want to involve all of the stakeholders as early as possible. Meetings are open to the public, e-mail comments may be submitted any time, and agendas are available on the website.
Bill C thinks a general notice should be sent to everyone in town when ordinances are going to be changed. Board members talked about the cost.
Jere encouraged people to call DEP and see if someone can come out. Who is credible to them?
Linda Sanborn, a rep from Buxton and Gorham, spoke about speaking to John MacLain. He says the sheer number of properties makes it prohibitive for him to come out. He’s our “on the ground” guy. If someone wishes to develop on this property, that changes things. Harry says there are about eight properties being disputed. Bill says you have to clarify who’s being affected. Jere says they’re going to push forward to digitize the town maps in Buxton. The Planning Board may ask for some money to start the process of digitizing tax maps.
Scott spoke about aerial photography to create a shoreland zoning map. He thinks it is very important to walk across property because an aerial photo will show different things depending upon when it is taken. Aerial photos cannot be relied upon wholly. He understands landowner concerns about having someone look at their land on the ground.
Linda Sanborn said that Mr. MacLain says he has been out to look at a lot of properties. He says that very rarely do they come up with a different result. He says there are a lot of people who can do that privately. Harry says the expense is something they’re trying to avoid. Since the State and DEP are mandating this, they should take responsibility. David A says the big question then is will the State accept a credible delineation that a landowner has paid for. Bill says that if they found out exactly how many people are affected, it may not be as much of a problem. Caroline asked Linda if Mr. MacLain visited the properties after folks already investigated their properties. She is not sure about that.
Janice Grant had the DEP come out and look at their property. From the Town’s map, they would have had a 300’ setback. Harry clarified the zone around it. John MacLain sent her a letter saying it is only 75’. Her land’s connected to the same issues as the Havu’s and Cliff Thomas. Caroline asked when they did the field determination. It was two weeks after the town meeting. Her letter is dated July 6, 2010. She says they’re calling their land a “wet meadow.” There would only be a 75’ setback. Jere asked if she understood the difference between the zone and the setback. He explained the zones. The shoreland zone overlays all of the other zones. From the normal high water mark, you have to be 75 feet
for a structure to be built, Caroline clarified. If Fred knows which parcels are affected, perhaps he can have someone come out to evaluate them all at one time.
Cliff had a site visit from John MacLain. He looked at an area that was not on this map. He says a little spring affects his land. He mentioned a “hydrological connection.” He’s going to try and have him back out in November.
Jean Harmon mentioned that they have only until next Monday to submit something for the November ballot. She knows this is a complex issue. Her personal opinion about the town paying for a wetland delineation is that if they did it for one, they’d have to do it for others. She thinks this might come up in the future. She would think very carefully about this as far as future repercussions. It is unfortunate that the burden for proving land is not a wetland comes to the property owner. She thinks communication has improved. She talked about people coming to the podium so that everyone at home can hear what is said. She mentioned correct addresses needing to be updated for the people whom post cards were returned. She
thanked the Board for all of their hard work.
Jere asked if there’s any remedy for a property owner to seek a reassessment of their property that has been devalued. Jean says that there is an appeal form that certainly would be looked at. Jere gave an example. Each individual person would have to come to the Selectmen with their concerns. Harry clarified that there wouldn’t be a cost to that.
Caroline thought that they could address this again in two weeks if they could get their questions answered.
None this evening.
Approval of Minutes: August 23, 2010
Didn’t receive minutes.
Approval of Bills
Boardsmanship workshop - two in November - Caroline will send an e-mail to Krystal. David A asked about fees. MMA one has a charge and the SMRPC does not. It looks like three people are interested. They’d want to send it in on a PO so he could pay it with one check. Scott would like to attend both of them. David A can look up the MMA material. Caroline thinks it is in Saco. Scott will give David his e-mail so David will be able to let everyone know.
Jere asked if they wanted to have a workshop on the 27th.
Jere motioned, Harry seconded, that the Board hold a workshop at 7 p.m. on September 27 to discuss shoreland zoning and zoning ordinance revisions. Six voted in favor.
David A got a memo today regarding the Hanson School. He had some questions about a walk through on Saturday, September 18, at 10 a.m.
Cliff referred to a letter giving some dates when someone could go out to look at properties regarding the flood zones. For FEMA, Fred can go out and take elevations; and FEMA would accept his elevations. David S mentioned that he did this for Bonny Eagle Pond and got the elevation changed.
Motioned by Jere, seconded by David S, to adjourn the meeting at 8:55 p.m. Six voted in favor.
Approval Date: __10/25/10__
Harry Kavouksorian, Chairman Signature Date