Town of Buxton Planning Board
September 27, 2010
Recorded by Hilda Lynch
Board Members Present: Scott Havu, Harry Kavouksorian; James Logan; and David Anderson
Board Members Absent: David Savage, Sr.; Jeremiah Ross, III; Caroline Segalla
Others Present: Cheryl Huntley, Dylan Elderkin, Henry Huntley, Penny Booker, J.D. Williams, Brent Havu, Fred Farnham, Anne Williams, Peter G. Grant, Janice Grant, and Todd A. Pendleton
Chairman Harry Kavouksorian called the September 27, 2010, meeting of the Buxton Planning Board together at 7 p.m.
Pledge of Allegiance
Workshop to discuss shoreland zoning and zoning ordinances
Harry stated that the DEP does not require regulation of forested wetlands. When comparing two conflicting viewpoints, they decided that greater than two acres of forested wetland adjacent to a non-forested wetland is required to be regulated. Harry has contacted the Town attorney to see if they have the option of not including forested wetlands, and he has not yet heard from him.
Jim stated that this may be something that is not clear in the law so this is guidance from Mike Morse and J.T. Lockman. He mentioned a publication that Planning Board members have been given in which they could not find the information that they’ve been told. If there’s real frustration on the part of the public, these are laws that have been enacted by the legislature, and it may be that legislators will have to be contacted regarding this. Harry says that DEP doesn’t have the budget to come out and look at these issues, although Jim says they’re mandating the change.
Can the Planning Board go back and accept what the DEP had in mind for Buxton? Harry said that both DEP and SMRPC have looked at the Buxton ordinance and would go with the stricter requirements. They could go with 250’, but this is something that will have to be voted on at Town meeting as the current Buxton ordinance is more strict.
Brent Havu clarified that wooded wetlands have to be zoned as shoreland zoning with two acres or more only if they’re connected with a shoreland zone. Harry gave an example: If you have an 8-acre pond with two acres of forested wetland connected to it, that may be the case. Jim mentioned the publication “Maine DEP Guidelins for Municipal Shoreland Zoning.“ The third paragraph of the Forested Freshwater Wetland handout which refer to the State guidelines says that two-acre forested wetlands are Resource Protection. Brent refers to paragraph 3 which states that this is only if it occurs within a shoreland zone. Brent pointed to a wetland on the Mary Jane Rd which is a forested wetland but doesn’t have an open water body, so thinks there are
areas that shouldn‘t have been included in the first place. Fred stated that someone from DEP came out (John MacLaine), and Fred says there is a wetland body, which triggered the classification. Jim and Fred discussed this. Brent thinks it would have to be a wetland that could stand alone as a shoreland zone. Henry Huntley says this is the same as his property. There is just a stream that runs there, but there is no body of water. He believes this is a forested wetland. The guidelines require only the wetland itself to be Resource Protection and not the area around it. Henry agrees with Brent because there isn’t another water body that the forested wetland attaches to.
Jim thinks the handout could be an amendment to the law they have in the published booklet. This handout originated from J.T. Lockman, so they may want to have this clarified. David A questioned this.
Henry asked if it was necessary to include his land if it is not attached to a shoreland zone. Jim says this is the crux of the matter and mentioned that some towns are misusing the shoreland zoning law to protect wetlands. Henry asked why they couldn’t go back to the minimum. Jim thinks that ultimately the map needs a really close look in order to make it right. Jim thinks the Planning Board needs to be right. Henry wants the maps constructed using the minimum. Jim thinks that’s where they’re heading with J.T. Henry would be okay with that. Harry thinks it might be beneficial to have J.T. come and explain what he’s done and why.
Todd Pendleton lives on Mary Jane Rd. The area on Mary Jane Rd. is all forested - wet but all forest. There is no pond or anything that would classify it as a water body or non-forested wetland. One feels that they’re at odds with SMRPC because they’re applying the broadest interpretation. Todd believes the broadest should only be used if they can justify it. Jim says their view is limited to aerial photography. Todd believes they are trying to snag them. For someone to look at a picture and capture thousands of dollars from people is not right. Jim says that he’s seen this for years; they’re trying to do the best they can with the limited resources they have. Unfortunately, the landowner has to prove that what they’re
saying is incorrect. Jim asked if Fred had any documentation in writing regarding this property on the Mary Jane Rd. If anyone got any of this information, it should be sent to J.T. Lockman.
Janice Grant has a document which she gave to the Planning Board. Jim read from this document about an area of 20,000 sq. ft. of open water, referred to as emergent vegetation, which triggers a wetland of special significance that can lead to it being on a map. Brent clarified that this is one-half acre.
Scott says that when you define a wetland or digitize a water body, the issue of scale comes into play. Depending on how well defined the photo is (the USGS has a large and a small data set). He believes the SMRPC used their small scale data set.
Brent drew a picture to illustrate his point. He illustrates 10 acres of open water and says that they can all agree that this would require shoreland zoning. He illustrates two acres of forested wetland next to a 10-acre body of water and thinks this is what constitutes the whole becoming a shoreland zone. Jim thinks they would regulate only 250’ or 300’ back from the water body. He refers to the Great Ponds Act. Jim says that people get exemptions all the time for modest impacts. What this law is trying to do is keep people from impacting wetlands that are two acres or more within the shoreland zone. Jim says that the 300’ setback from the water body is all that applies. David A asked if this hasn’t changed since 2003?
Brent illustrates two wet acres of trees next to less than ten acres of water. Since the water body is not large enough, then neither would be considered shoreland zone. Harry concludes that the two combined are 10 acres. Jim read from the booklet the Planning Board has on the definition of non-forested wetlands. Brent says he believes that there are a room full of fairly knowledgeable people who are trying to understand a complex issue. He says his wetland is just shy of 30 acres. There is about a half acre that doesn’t have trees - does this little bit of water make the whole thing shoreland zone? Jim says the canopy and soils don’t change in one dry season. Brent drew a 30-acre plot of wet trees. David A thinks this would fall under the State’s wetlands of special significance. Is this how they’re classifying this? Jim says there is now bird habitat maps driving this wetland mapping in places.
Brent said that J.T. Lockman has done our map, and is there anyone else who does this mapping? Yes, the Board members say that there are others, but no one who could do it as reasonably. Would it be worth a little more money to get another opinion?
Scott knows the name of a company (Aerial Survey & Photo) that could do this. Harry asked him to contact them and see what the cost would be.
Jim asked David A about the funding necessary. He thinks they might need to go to the Selectmen for additional funds. David A says that they took every bit of money they had to do the shoreland overlay in addition to $7,000 which was voted on by the Town at the June 15, 2009, meeting.
Harry thinks that they might try to get J.T. to come and clarify things. He has heard conflicting information from Mike Morse and J.T. Lockman. David A says he needs to see Brent’s drawings and answer questions. Harry asked if there is a vantage point where they could video Brent’s property. Brent doesn’t think so. Jim says it is an Inland Fisheries and Wildlife (IF & W) mapped wetland. The map was prepared in 2006 and amended in 2008. Brent says that he went to Inland Fisheries, and they don’t have it mapped out that way. Jim thinks that J.T. probably didn’t have the amended map. Jim read from a document that says that IF & W is reviewing their data. David A clarified what they thought had been done.
Henry says the map comes from Richard Baker. Henry wants to know what they should be working from as a minimum. Jim thinks they need to go back to Mike Morse and get to the bottom of this. Henry asked who is authorized to assess this. Jim says IF & W regulates this. They charge DEP with enforcement. With the definition of forested wetland, Henry says his property should be exempt. With the 2008 map, his property is not on it. Could Buxton construct a map using the 2008 one? Harry thinks they’ll go by the 12/31/08 one. Henry says his property is not on it. He asked Fred if he has any info in the past few weeks that is different? Fred says he has not. Harry asked Henry if he’s suggesting using
the map of 8/18/08. Inland Fisheries is going to say that this has been modified. David asked a question about the moderate and high value rated freshwater wetland notation on the bottom of the map. They mean they have jurisdiction over these wetlands. Jim wondered if Buxton’s ordinance has Resource Protection around streams. Harmon Brook is not in the ordinance. “When in doubt, leave it out,” Henry says. Jim will try to get to the bottom of which of the two maps they should be looking at. He’ll do some follow up.
Brent asked about funding for the next step of this. He asked if SMRPC would redo the map. He thought the answer was that if Buxton would pay for it. Jim says if J.T. Lockman has made a mistake, he’d like him to go back and fix it. David A mentioned that SMRPC did maps and changed colors, and the Planning Board told them they had to go back and change this. They absorbed the cost. Brent thought Harry said they wouldn’t fix it without getting paid. Harry said that if we could show they made a mistake, the onus would be on them. If they don’t agree there are inconsistencies, then we would need funding. David A says the Selectmen would have to put this on an agenda to get additional funding. Jim would caution any
activities by the Board that would “throw the baby out with the bath water” since J.T. and SMRPC has done a great deal of work well for the Town.
Brent says he thinks the Planning Board will make recommendations to the Town meeting and that there will be a subsequent map to go with this. Jim doesn’t think this will be a substantial change. David A says they take our ordinance and the map and combine them. In general, we have a good relationship with SMRPC; and they know Buxton’s material. Jim asked Fred if he could guess how long we’ve had the 300 ft. setback. Fred says it was in the 90s. Jim hasn’t made up his mind if he wants to change from 300 to 250 ft. Brent says the ordinance is like the constitution of the town and thinks that over time things will change.
Todd is just one landowner. He knows the Town has had a relationship with SMRPC, but he isn’t sure he would totally trust this. In this case, there is a third entity that is not accountable to anyone, and he sees that whenever they’ve had a chance to broaden their control, they’ve taken it. Harry says that the question is what mapping did he use and why. Henry feels it is open to interpretation, and J.T. may have gone a little further than was necessary. Todd thinks the common thread is that the other agency behind the curtain is taking the broadest interpretation. It would be helpful to have him specifically address some of the questions that Brent raised. There is such a burdensome amount of regulation placed on Planning Boards. It may be the way it has been done, but there is a level of accountability that needs to happen.
Scott talked about the 250 vs. 300 ft. He thinks agriculture and forestry is very important in this part of the state. He thinks the additional 50 ft. better protects prime agricultural and forest land. Jim says that maybe something should be in the ordinance about this. By not protecting an additional 50 ft. of wetland, you are essentially protecting the agricultural land. He thinks less ordinance goes further in this instance. Harry refers to a note from J.T. of June 14. He’s saying that the 8/18/08 map is the correct one. Henry says that if this is correct, it doesn’t affect his property. Harry thinks he took his guideline from the DEP. Harry gives Henry a document. David A asked Henry if he has
seen another document, which he and Brent look at.
Scott says that both aerial and on the ground work need to be done. Jim asked how he would suggest they do this. Todd thinks the government should be required to prove this.
David A left the meeting a couple of weeks ago disappointed about one statement by Ms. Sanborn. She said that 95 % of the appeals of DEP have been rejected. Whether the Town would have to put out the money or individuals within the Town would, there appears to be little chance of success. He needs to know that there is a chance that money spent has a better than 5% chance of success. They have a chance to challenge the way it was established. If they can key in on this and present reasoning why it should not have been the way it is, he thinks this is the way to go. Harry thinks this is why it is necessary to have J.T. come and talk about how he got to where he is. Harry thinks he should be expected to give clarification. He
wants to have him come and explain how he got where he is.
Henry asked if forested wetlands are fairly easily identifiable. Jim says that it depends on the topography. Some are a lot tougher to interpret than others. Trees need to be 3” or larger in diameter at breast height and over 20’ in height, Jim says. It used to be 5”, and they’ve gone down on the size. Henry asked what he sees on cost on a site. It would probably be 4 - $500 depending on the size of the site. Harry says that is another question he hasn’t been able to get an answer to. What would they accept as evidence? Jim says you start with a biologist. Henry says his property is not on the IF & W map. David A asked Mrs. Grant if she had to pay. No, she didn’t.
Janice Grant said that the map the town has - when John came out, half of the land that they’re saying is wetland, they’re calling it upland which would make it not even a wetland. The north end of the property would not be considered wetland. He was going by the map presented. Peter says he walked their land.
Jim thinks there should be map correction built into the ordinance. Henry asked if this isn’t one of their questions of Mike Morse?
Brent says that one of the things he’s sensing is that they can sort of explain why SMRPC did this, but he would like to see what the ordinance by rule looks like. Half of the wetlands are being disputed. Jim says they use all of the public sources, which is why it would be good to have J.T. Lockman here. Harry says they’ll continue this to another meeting. David A has a 1989 map, which shows Mr. Havu’s property. Henry says that if he can’t get some relief by the Planning Board, then he would like to have someone come out - a wetland delineator. Jim says that there has to be an intact canopy. Harry wants to have J.T. come in to defend what he’s done. Jim says that according to the published data, he believes the wetlands in
dispute have to be included. If they only look at two or three areas, there could be others around town that needed to be looked at. Brent asked if he’s suggesting they should leave them in? Jim says he isn’t. They will address the seven or eight areas. Brent says that at the annual town meeting, Fred pointed to each area specifically. Harry says that the seven or eight new ones that are on there need to be looked at. David A says that if he recalls that it was stated that J.T. found them and now that Mike Morse has seen them he doesn’t want to change them. They were talking about forested vs. non-forested. Brent asked about the forested wetlands in our ordinance. Harry says that forested wetlands only appear in the definitions. Brent says it is hard to come one week and get an explanation (something in our ordinance); and when they come again, they get another explanation. Brent says the only notice he ever
got was for the public hearing. David A says he finds the information very confusing and is glad people are here to help clarify things for him. When Brent got the handout tonight, he didn’t realize this was the explanation from the last meeting. Henry refers to a memo from Michael Morse of 9/17/10. Henry asked if he recalled the discussion about forested wetlands being included if they weren’t specifically excluded in the ordinance.
Brent refers to an e-mail correspondence of 6/14/10 where he asks how badly the defeat was. Brent says that this shouldn’t matter. Harry says that he doesn’t believe SMRPC is beyond reproach, and that the Planning Board wants to understand. Henry asked if it is black and white or is it open to interpretation. Jim says it is possible to get two different answers from the same agency. David A asked about what is happening in other communities? Jim asked if David A got Caroline’s e-mail about Hollis. Henry thinks this is worth exploring further. Jim mentioned that he might contact Peter Gordon. David A thinks they’ve been approved. Brent wonders if they could just choose an area and call it a wetland. Jim says
that J.T. would refer to his maps.
Scott doesn’t think that Mike Morse would necessarily think that 500’ around a wetland would be good. Harry thinks that he would be okay if the Town puts it in their ordinance. Jim says that it would have to meet the science. Scott says that Mike Morse may ask why 300’ since he feels 250’ is adequate. Technically, Jim doesn’t think there is any real reason for Buxton’s ordinance being 300‘.
Brent just got done working on the Town of Buxton Charter. They had a questionnaire at an election. Perhaps it would be prudent to have a questionnaire at an upcoming election. He thinks the Planning Board should do this. Jim thinks that Brent could do this. Would the Planning Board take this as useful information? Jim would encourage it. He also encouraged Brent to run for Planning Board. Jim would wonder about what is the expected outcome he’d want. Jim says he would take it in the spirit it was intended. Jim will try and get information from Mike Morse, and Harry will invite J.T. to come and speak at the next meeting. They will see if he can come on Monday, with Tuesday as the fall back date.
What data will DEP accept for dispute? Are any of J.T.’s additions optional? David A thinks he used a map that was not part of DEP’s mandate, which gave the seven or eight additional parcels. Once Mike Morse saw it, he said he would keep it. In his note, he refers to two sources. Are some of the properties in there because Buxton doesn’t have an exclusion for forested wetlands?
There was some discussion about the next meeting being on the 11th or 12th. There was some feeling that it should stay on Monday unless J.T. couldn’t make it that night.
Approval of Minutes:
August 23, 2010
September 13, 2010
Cannot take a vote without a quorum because Jim wasn’t present at either meeting.
Approval of Bills:
Forested freshwater wetlands
Note from Cliff Thomas
Will copies of the 9/13 meeting be available?
Will there be several microphones?
Forested vs. non-forested issue - clarification if not understanding - by virtue of them not being excluded - topic for ordinance revision
List of other towns already zoned by Maine DEP
Minimum guidelines have been available all along
Request to the Code Office from Normand Berube Builders. Based on inspection, they request to reduce the amount of their letter of credit.
Scott asked about anyone making the Hanson walk through. Hilda stated that Jere and David S attended. All set for four members at MMA conference - Scott, Caroline, Jere and Jim; David will have more info as it gets closer. This will be in Saco.
Motioned by Jim, seconded by Scott, to adjourn the meeting at 8:58 p.m. All voted in favor.
Approval Date: _11/8/10_____
Harry Kavouksorian, Chairman Signature Date