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Town Seal
Planning Board Minutes 09/23/2013
Town of Buxton Planning Board

September 23, 2013

Recorded by Hilda Lynch

Board Members Present:  Jeremiah Ross, III; Keith Emery, Christopher Carroll, Cliff Thomas and Lawrence Curtis

Absent:  None    

Others Present:  Henry Huntley, Andy Morrell (BH2M), Daniel & Roberta Aceto, Fred Farnham, Jack Chase, Robert A. Yarumian II

Chairman Keith Emery called the September, 2013, meeting of the Buxton Planning Board together at 7 p.m.

Pledge of Allegiance

Public Hearing continued for Daniel & Roberta Aceto

        Andy Morrell reminded the Board of the starting of the public hearing on 9/9/13.  The applicant has decided to move the parking to the left side of the building per 10.7.B.5 of the town ordinance.  The second item was access to the site.  They've eliminated the proposed access, and all of the traffic will use the same access per 10.7.E of the town ordinance.  Andy provided a second letter to the Board.  He added a rock barrier along the Atkinson Rd. as discussed at several meetings.  They'd like to continue the hearing and move forward.
        Cliff referenced an application.  It appears that the building is on the wrong lot.  The decision may have the wrong lot # on it.  Andy says he's sure that is it because Mr. Aceto only owned the lot he has his building on then.  Cliff asked how they could correct this because it trickles down to the existing application.  He thinks that is where things have gotten confused.  Since he's showing a proposed building for the future, does he have to come back to the Planning Board.  Keith says "no."  They clarified that he's here this evening to get approval of the new lot.  Jere says he needs a Conditional Use Permit because of the use change.  Cliff doesn't find an automobile garage in the list since that's already approved for this location.  Keith says that is only if the building is less than 500 sq. ft. and mentioned the disposal of waste oil and other issues.  Cliff doesn't know which is the best way to go.  
        Keith says the applicant had to come before the Board because he has another lot that will become part of the original lot, so wants to expand the use onto the new parcel.  In the future, they'd like to add this additional use.  The application says they want to use the lot for the same things as the older lot.  They may have to come back for a future use on the newer lot.  If the property is sold, the use goes with the property, Jere says.  If the use changes, he would have to come back before the Board for a Conditional Use Permit.  
        Andy clarified that anyone buying the lot would have to come before the Board if they wanted to change the use of the potential building.
        Cliff said that somewhere it says that loading and unloading docks could not be facing the road.  Should they know where these would be?  Jere says they would have to be on the side or back of the building.  Some other examples were mentioned, such as, NAPA and TruChoice.  Cliff cites an ordinance regarding a building on two streets/roads.  Jere says the front of the building is on Rt. 202.  Cliff says he guesses if the others are OK with the place for loading and unloading being on Atkinson Rd., he is all right with it.  
        Andy mentions Elevation 161.25 - deliveries will come up to a slide-up door.  Any sliding doors would be on the rear or side of this facility.
        Keith checks on the lot number for the existing facility.  The application lists Lot 20A-35 as the lot.  Both lots have the same number.  Andy says the new Lot is 20A-35A.
        Larry asks about the depiction of the parking area.  He mentions the handicapped space is listed as No. 6.  Larry wants to know if the State has any requirements regarding the space between the handicapped spot and the building.  Andy says it is within the guidelines.  Since this is just a "potential" building, this may change.  
        Fred had no comments.  No abutters or members of the general public appeared.

       Motioned by Jere, seconded by Larry, to close the public hearing.  Five voted in favor.

        Keith asked about conditions - anything other than the standard ones?  Jere would like to see #5 be a condition dealing with the site location law for the DEP permit being completed and the Code Enforcement Officer be notified in writing before a building permit is issued for the proposed building.  Chris clarified that he's only asking that the work be completed and that the Chairman and Code Enforcement Officer be notified.  The pending DEP application must be approved.  
        Keith 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 Article 8.2.B & 10.
        3. That the applicant be in compliance with all applicable provisions of
Section 11. (if applicable)
        4. All outstanding bills paid before the building permit is issued.
        5. Concerning the site location law, the DEP permit be completed; and the CEO be notified in writing
before a building permit is issued for the proposed building.
        6.  The pending DEP application must be approved.  

        Jere motioned,  seconded by Chris, that based on previous discussions, we find the application to be in compliance with all applicable provisions of Articles 8.2.B,  and 10.   All voted in favor.
       Jere motioned, seconded by Chris, that the applicant be in compliance with all applicable provisions of Artcle 11.  Five voted in favor.
       Jere motioned, seconded by Chris, to approve the application with the conditions stated and from previous meetings.  Five voted in favor.

Jack & Leigh Chase or Memory Lane, LLC, is requesting a revision to certain boundary lines to Chases's Places Subdivision, a six-lot subdivision located on Memory Lane; Tax Map 7, Lots 49-5 through 49-10.  It was previously approved September 8, 2003, and revised March 28, 2011.

        Butch Yarumian spoke for Jack Chase and Memory Lane, LLC.  They're here for approval of a change.  Lots 1 - 5 have frontage on Memory Lane.  There are buildings on all lots.  As an amendment to a subdivision - 13.7 is referenced, he stated a number of reasons why they want to re-arrange these lots.  In 2003, a fire tank and dry hydrant were built in a slightly different location than approved.  The Fire Dept. wanted the dry hydrant to be on Flaggy Meadow Road.  There was an easement designed that needs to be re-arranged.  The driveway for Lot 6 went into the Open Space.  They're looking for re-arrangement of the boundaries.  Lots 1 - 5 could have more buildable area so they could have additions added to the buildings.  Lot 6 has a driveway that goes through an existing 15-foot-wide right of way.  They were asked to have 100 feet of road frontage onto Memory Lane.  They would like to change the ownership of the Open Space - 1/6 interest by all of the lots.  They want Lot 6 not to have any interest in the Open Space because technically Lot 6 is a residential lot (120,000 sq. ft.).  It was not intended to be part of a cluster development.  In the scheme of the development, it was not a clustered lot - not reduced to a smaller size.  In the density calculations, Lot 6 was separated out.  Originally, Lot 6 was to have access through the 15-foot right of way.  It was historically the only access to this land.  Jack bought a lot for access to the Flaggy Meadow Rd.  
        SMRPC reviewed the application and wrote a review of the plan, according to Butch.  They said it needed to have proper road frontage; and at the last moment, they re-arranged and had Lot 6 have 100 ft. of road frontage.  During that time period, they accepted what was going on.  They don't want Lot 6 to have frontage onto Memory Lane - it doesn't need it and it's not a part of the subdivision.  The new owners would like to use this frontage for landscaping and part of the open space.  There are two lots in the back that have only 10 ft. of frontage on Flaggy Meadow Rd.  He spoke about a subdivision approved in 1998 - Common Way, which is a mirror image of what they are doing here.  Lot 1 had 31 ft. of frontage, a minimal residential lot and there were four clustered lots.  Lot 6 was taken out of the net residential calculations and was not part of the cluster.
        Chris asks if the subdivision had been created without the larger lot in the calculations?  Butch says if you look at the density calculations, they called it a residential lot.  It was taken out to give the number of clustered lots they could have.  Chris asked if there is a residence on Lot 6?  Butch mentioned it was built after the subdivision was done.  They could have gotten a permit for Lot 6 with the 15-foot right-of-way access.  Chris says that Butch mentioned that the road has been built into the common area.  Butch showed on the map what was done.  Yes, the driveway was built into the common space.  Chris asked why they would do that?  Butch says they re-arranged the lots - took away from some area and added to others.  The amount of space did not change.  Chris asked where the house was built.  Butch says it was right on the setback line.  It wasn't an encroachment on the setback but was very close.  
        Chris says the septic fields are not located on the map.  Does this matter with the change of lot dimensions?  Butch says all of the septic fields along with the area that was reserved are still within the lots.  He illustrated the changes to Lot 4 and 5.  Lot 2 got a little extra space.  The individual septic systems are directly behind the duplexes.  Butch says he's sure they're all still within the lots.
        Keith says that Lot 6 is within the subdivision.  The extra road frontage was put in to meet the Town ordinance.  It brought that lot into compliance.  That's the main reason why SMRPC brought this out to them.  An error was caught with this one, and the lot was straightened out.
        Butch says that the need for Lot 6 to have that road frontage is not needed.  Keith believes it needs to stay, from his interpretation.  Jere says he thinks they could seek legal counsel on this one.
        Jere says that on the amended plan and original plan, they kept the same net calculation for residential density?  Butch says, "Yes."  Jere asks about drainage and type of soil for the expansion.  Butch believes that there isn't the type of soils that they have to deduct or it would have been on the original plan.  On the density calculations, it states "all well drained soils," Butch says.  Jere would like to see that in writing.  Butch says it was confirmed in the prior plans.  Jere would be all right with seeing that.  Jere says the changes have to stay the same for the density calculations.  
        Butch asked if they saw how Lot 6 was taken out of the cluster subdivision calculations?  Jere says it falls under the density calculations.  Butch says it was taken out of it.  He says they have a 5-lot cluster subdivision and a 1- conventional lot.  Jere says that he believes they should seek legal counsel.  Jere asks when they created Lot 6?  Jack says that Lot 6 was a legal lot.  Keith says they created 5 clustered lots and 1 full-sized lot.  
        Keith says that Lot 6's road frontage would be Memory Lane.
        Jere asks how this applies to the cluster provisions in the ordinance?  Can this be legally done?  Butch asks if they have people come back for revisions.  Jere says that happens very infrequently and only minor changes.  Jere believes they would need to be in compliance with the cluster section of the ordinance, rather than the regular subdivision section.  
        Butch questioned something Keith was saying.  Jere asked if there was any homeowners' association?  No, there isn't; and there was none proposed, Butch says.  Now that Mr. Chase has sold the property, everyone who owns a lot has an interest in the common space.  
        Butch says that Memory Lane is a town road now.  Keith asked about Jack selling off all of these lots and who is presenting this.  Butch says two owners filled out the application.  Does the Lot 6 deed have an interest in the common space?  Butch says they do.  
        Larry asked if this subdivision was presented as a 5 or 6-lot subdivision in 2003?  Butch refers to the map.  It was presented as a 6-lot subdivision - five clustered lots and one residential lot.  
        Chris asked if this was the plan that SMRPC looked at and wrote the letter?  Butch says this is what was approved.  The third pullout map was brought up as a final plan, which shows Lot 6 as not having any frontage on Memory Lane.  In his opinion, it doesn't make sense as the land was not needed.  
        Keith originally mentioned that the lot needed the 100 ft.  Jack Chase proposed the open space.  Butch says that in 1998, they might have set a precedent.  He says nothing changed in the ordinance during that time.  There was some back and forth between Keith and Butch.  Is making a mistake and setting a precedent different?  Butch asks.  Chris offered some clarification.
        Cliff says that if you take the 100 ft. away from Memory Lane and going back to 50 feet, aren't you making this an illegal lot?  Butch says this 100 feet is not being used.   Is there a difference in the way this property could be conveyed, Chris asks?  If this were approved, would this change how the property would be conveyed to another person?  Would it change the dynamic of selling the property?  This 100 feet is land the owners of Lots 1-5 would like to use as open space.  What's the nature of the easement as a driveway? Chris asks.  Butch says it's a dirt area.  Jere says that between Lots 1 and 5, there is a small sliver of land.  Why wouldn't he connect those?  This piece is left to walk through to the common space.  Butch says there's no space for a deck or extra den or something like that on Lots 1-5.  Lot 3 wouldn't change because they couldn't make it any bigger.  
        Butch asks if they don't like where Lot 6 is and they put it back to 100 ft. of frontage on to Memory Lane, is that the only issue?  Jere thinks they should hear from Town Counsel.  Butch asks if there is a need to have Fred offer input?  
        Fred will narrow it down to the single lot with minimum road frontage.  He started looking at the tax map.  There are a number of nonconforming lots that have no frontage other than a right of way.  It is not something unusual.  If you look at this as Lot 6 being the original parcel, it's only access was the 15-foot right of way.  Years later, Lot 6 decided to sell the rest of the land and a new access was created.  Fred will try to submit a list to the Board of other examples in Town.  
        Jere asks if Jack had to buy the lot from his mother in order to get the frontage to build on the lot.  Butch said that what they brought from 1998 would have been acceptable.  They could have created Lot 6 first.  What they thought they could do from the past, they found wasn't acceptable.  
        Keith asks about the frontage of one of the lots.  It was Lot 1.  Lot 1 has 31 ft. of frontage on the Hurlin Smith Rd.  Keith summarized that they'll contact the Town attorney for a legal opinion.  
        Jere asked if he has a letter from both parties that they approve of what is being proposed.  Who's taking out the application?  Butch says he is acting as agent for both owners.  Jere would like a letter from Mr. Chase saying this is okay.  
        Jack says there was an original intent to have only five interests in the open space.  Lot 6 doesn't need any interest because it wasn't reduced in size.  He doesn't need to make any decisions on what is done with the open space.  On the original application, Butch refers to the open space - change from Lots 1 - 5 and taking out Lot 6.  There's some info on what can be done in this open space.  Jere says there are other questions for legal counsel - whether a lot can opt out of the open space.   Can Lot 6 be taken out of the cluster?
        Jack says there wasn't any intention for Lot 6 to be part of the cluster.  Keith reiterated that Lots 1-5 were clustered and Lot 6 was a separate residential lot.  If they'd kept this land a part of the cluster, they might have gotten a couple of other lots.
        Cliff asked about the utilities as part of the right of way.  Butch says they have already been constructed and are in use.
        The board has asked Krystal to contact town counsel with the following questions: Can road frontage be taken from Lot 6 and keep it a legal lot?  Can Lot 6 opt out of the common space due to it having the minimum lot size for the zone?  How does this affect the homeowners' association as there are now two owners?  There has to be some mechanism for the owners to make decisions about the common space.
        Jere says that the owner can maintain ownership until the majority of the lots are sold.  The open space is owned by Memory Lane, LLC, at the moment.  Jere cites ordinances regarding submission of homeowners' docs to the Planning Board.
        Someone will get back to Butch when they've heard from Town Counsel.           

CEO Report - None this evening

Approval of Minutes:
        September 9, 2013
       Motioned by Larry, seconded by Chris, to approve the minutes as amended.  Five voted in favor.

Approval of Bills:
        Portland Press Herald in the amount of $27.20 for the Aceto public hearing.

       Motioned by Larry, seconded by Jere, to approve payment of the above.  Five voted in favor.

        SMPDC Newsletter - Vol. 1, Issue 4
        Buxton-Hollis Historical Society Newsletter - Autumn, 2013
        "Maine Townsman"
        Sustained Southern Maine - climate change discussion - September 17 from 3 - 5 p.m.

Other Business:
        Review ordinance amendments if any.  Cliff suggested some they look at:
                10.7.B - waivers they'd like to do on some projects
                10.7.B.5 - reference to parking in some of these spaces - all employee parking and loading in the back of the building
                13.5.Q - under cluster subdivision - it would be good to look at and to put under road acceptance in Section 12

Attendees may address the Board on the evening's business.

       Motioned by Cliff, seconded by Larry, to adjourn the meeting at p.m.  Five voted in favor.

Approval Date:    ___________

________________________                                ________________
Keith Emery, Chair                                              Signature Date

Town of Buxton
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