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SHAPLEIGH PLANNING BOARD

MINUTES

Tuesday, June 26, 2018

Members in attendance: Roger Allaire (Chairman), Madge Baker, Roland Legere, Steve Foglio, Alternate Ann Harris, as well as Barbara Felong (Secretary). Maggie Moody was unable to attend.

Alternate Ann Harris sat in as a regular member this evening due to the absence of Maggie.

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Minutes are not verbatim, unless in quotes “”

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Public Hearing Began at 7:01 p.m.

Amendment to a Subdivision ~ Sandy Point – Creating Road Frontage for Lot 4 (which was not completed by the original developer) – Map 12, Lot 22-4 (Knob Hill) Ted Theriault, Applicant

Mr. Theriault was present for the review of the application.

Roger A. asked Mr. Theriault to explain to the audience what he intended to do. Mr. Theriault stated that he was planning to build a road to get to a piece of property he wanted to build a house on. He stated that it was in a subdivision, so he had to amend the subdivision to incorporate the right-of-way. He was hoping for approval this evening from the Planning Board.

Roger A. asked if there were any questions for Mr. Theriault?

Citizen – We own the abutting property, this is on the other side coming in from the Newfield Road instead of coming in on our little road. It isn’t going to affect our house at all. There were people there before. I don’t know how they got away with it but they brought in a trailer and set up housekeeping and grew all kinds of pot.

Citizen – That was our last summer, it is not quite as fragrant this summer.

Mr. Theriault – I won’t grow pot there, you will be all set.

Citizen – Where are you planning on putting the road?

Mr. Theriault – If you come off Newfield Road, a little single cemetery, that is actually a town road and the guy uses it for his driveway. That is actually Archer Street, because it was never developed, it was only supposed to be developed if in fact they did more subdivision on the right side of the road. It never happened, I guess the recent owner died, so it never got built to the spec. In the original subdivision plan they mentioned that access to my lot was to be from the Newfield Road but because the road wasn’t built, the lot didn’t have any road frontage. So to make it a legal lot, I have to build Archer then build a road in to the lot to create the required road frontage.

Citizen – So you are going to be coming through Archer?

Mr. Theriault – Yup.

Citizen – Which is now an ATV road.

Mr. Theriault – Correct, it is still probably going to be an ATV road.

Madge B. – I would call it an ATV road.

Citizen – Someone is stealing my wood, maybe that is how it is happening.

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Shapleigh Planning Board Minutes – 6/26/18 Page 2 of 27

Mr. Theriault – I am only going to upgrade the road, so we can plow past the driveway but not any further. I am building at the top to capture some of the Silver Lake view. We won’t be close to the property line on the left.

Roger A. asked if there were any other questions? There were none.

The public hearing closed at 7:05 p.m.

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The minutes from Wednesday, June 13, 2018 were accepted as read.

The planning board meeting started at 7:30 p.m.

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Conditional Use Permit – Home Occupation / Medical Marijuana Caregiver – Map 34, Lot 3 (92 Cedar Drive) – Diane Bragdon, Applicant & Owner

Diane Bragdon was present for the review of her application.

Along with the application, provided was a sketch plan which depicted the structures on site, all located beyond the 100 foot setback to the high water mark; the location of the well and leachfield; proof of ownership by listing deed reference Book 9769, Page 303, and it noted the acreage of the lot is .51 acres.

In addition, Ms. Bragdon listed why her home occupation would meet the Shapleigh performance standards, the fact the Comprehensive Plan encourages home based businesses, and the detailed description of the project is as follows:

As a Medical Marijuana Caregiver, registered with Maine DHHS, I will be abiding by all State laws.

The product will be in a locked, enclosed, in a secure existing building on the property.

This is a house call service only. Patients are not allowed on the premises.

There will be no changes made to the property. Existing buildings and vegetation will not be disturbed.

The detailed description of the project on the application page reads: Home Occupation (See Attached)

Ms. Bragdon provided the board with a copy of the State letter of approval for a Caregivers-Cultivator Growing Rights card. The letter provided the website where the rules, and statute are provided, that being: www.mainepublichealth.gov/mmm Also provided was a copy of her Maine Driver’s License dated 4/12/18, a copy of her Individual Caregiver card dated 5/9/2018 and MMMP Designation card, expiration date 4/18/2019.

Barbara F. provided members with a copy of the Medical Use of Marijuana Program Caregiver Application, regulated by the State of Maine, Dept. of Health and Human Services, Division of Licensing and Regulatory Services. She also provided the information from the Rules Governing the Maine Medical Use of Marijuana Program, 10-144 CMR Chapter 122, Effective Date: September 17, 2013, specifically Section 5: Primary Caregiver & Primary Caregiver’s Authorized Conduct.

Ms. Bragdon also provided additional information after questions were posed at the public hearing. The information on file in part is as follows:

Shapleigh Planning Board Minutes – 6/26/18 Page 3 of 27

Security: I have security cameras and an alarm system. The business will be run strictly as a delivery service to patients.

Please refer to Title 22: Health and Welfare Chapter 558-C: Maine Medical Use of Marijuana Act, which discusses access to the facility:

B. A primary caregiver who has been designated by a patient to cultivate marijuana for the patient’s medical use must keep all plants in an enclosed, locked facility unless the plants are being transported because the primary caregiver is moving or taking the plants to the primary caregiver’s own property in order to cultivate them. The primary caregiver shall use a numerical identification system to enable the primary caregiver to identify marijuana plants cultivated for a patient. Access to the cultivation facility is limited to the primary caregiver, except that an elected official invited by the primary caregiver for the purpose of providing education to the elected official on cultivation by the primary caregiver, emergency services personnel, an employee of a marijuana testing facility or a person who needs to gain access to the cultivation facility in order to perform repairs or maintenance or to do construction may access the cultivation facility to provide those professional services while under the direct supervision of the primary caregiver.

Odor: I am using a charcoal filtration system. There have been no odor concerns reported to the Sheriff’s Department, filed with the Town, nor has anyone approached me about the odor. No complaints of odor occurred until the application was sent to neighbors and added to the agenda.

Quality: I am not changing the property. There will be no indication of a home occupation or variation from the character of the home. The quality of lake life will remain as is. Without the Public Hearing residents would not be aware of my request.

Roger A. asked Ms. Bragdon to let the audience know what her intentions are.

Ms. Bragdon stated she applied for a conditional use permit as a Medical Marijuana Caregiver. The State has approved and permitted my business as a Medical Marijuana Caregiver. I have met all of the criteria for a Conditional Use Permit. I have met all the standards for a Home Occupation and at this point I would like to have it approved.

Roger A. asked if there were any questions?

Citizen – Can you be more specific about what a Maine Medical Caregiver (MMC) does, what do you do?

Ms. Bragdon – A MMC grows the plants for edible cannabis and delivers it to patients, so patients will not come onto the property. A lot of these patients can’t even drive, at least that is what I have heard from other caregivers. I do not know that yet, as I am waiting for my permit. I can have up to five patients, grow for them and deliver to their home.

Citizen – Is this outside growing?

Ms. Bragdon – No indoor, enclosed in a garage and in tents.

Citizen – So in a garage and in tents, everything is inside the garage.

Ms. Bragdon – Yes.

Citizen – Will it impact traffic at all?

Ms. Bragdon – No, no one is allowed onto the property. No patients are allowed.

Citizen – Will you be able to expand over time?

Ms. Bragdon – No.

Citizen – Six plants per patient, five patients.

Ms. Bragdon – Plus myself, for 36 mature plants. Plus you can have seedlings going until they mature.

Citizen – Will there be any external changes to the property?

Ms. Bragdon – No.

Shapleigh Planning Board Minutes – 6/26/18 Page 4 of 27

Citizen – Any visibility?

Ms. Bragdon – No.

Citizen – Just smell, is there smell?

Ms. Bragdon – No.

Citizen – Is this natural lighting?

Ms. Bragdon – No, we have LED lighting.

Citizen – Is there going to be signage?

Ms. Bragdon – No. I am allowed a sign but I am choosing not to.

Citizen – What about security, is this a possible invitation for criminal activity, knowing there are 36 pot plants?

Ms. Bragdon – We have a security system, we have cameras and security on the doors. The camera’s record for 70 days.

Citizen – What about employees?

Ms. Bragdon – So I do not have employees at this time. The State of Maine only allows for one employee.

Citizen – On your application it said you would have two.

Ms. Bragdon – All I did was list the criteria, which was a mistake on my part, I listed the performance standards for a Home Occupation and that was a standard. It reads ‘Not more than two persons outside the family shall be employed in the home occupation’ (§105-40.B). So in my application I listed all five points of the performance standard. So that wasn’t clear.

Citizen – So back to the odors. I have smelled it, it does not belong in the Town of Shapleigh.

Ms. Bragdon – When have you smelled it?

Citizen – I can smell it at night. My wife has smelled it during the evening. I don’t know what to tell you.

Ms. Bragdon – We have had people there, we have had board members there, and they couldn’t smell it.

Citizen – Then you are doing something different. What do you want me to say?

Roger A. – All other questions will be directed through the Chairman.

Citizen – I am sorry sir.

Citizen – It seems like every night you turn on the local news and other towns are dealing with the same issue. We are on the leading edge of this whole thing. When I was listening to the spiel on the town halls dealing with the issue, what they are all saying is the local communities have a lot more say than what they think they have on this medical marijuana issue and we don’t seem to think we have any say. Because the State says it’s ok, we think we don’t have any choice. We think if it meets the criteria for a home operated business than we have to grant the permit, but it doesn’t seem that is the case according to what I am seeing on the news.

Roger A. – At the present time, the legislature did just pass, according to the House and the Senate, did pass a law stating that medical marijuana and recreational marijuana are going to be lumped into one, but as of today it has not been done. LePage hasn’t signed it yet. So at this time, medical marijuana is still the State.

Madge B. – We review it as a use, but it is a Conditional Use here, and normally a Conditional Use means it’s a use that our Ordinance allows with conditions. If our Ordinance said it wasn’t allowed, it would be a different case, but it doesn’t say that.

Citizen – The Townspeople took a vote at the last Town Meeting prohibiting recreational marijuana in the Town. We are on the cusp right now, awaiting LePage’s signature for putting medical and recreational together, then it is a real clear jump from there, why don’t we table this until LePage has decided. If he decides not to lump them together then review it then. But if he decides to lump them together, then we will be going against the will of the Townspeople of Shapleigh by granting this permit.

Roger A. – The only way to get that done is by moratorium.

Citizen – I don’t understand.

Shapleigh Planning Board Minutes – 6/26/18 Page 5 of 27

Roger A. – This would be something that would go before the Townspeople, that medical marijuana as well as recreational to be held up until the legislature decides what they are going to pass for laws. At this time, we have an application before us, we have to act on it. We can’t take and postpone it, we have to act.

Citizen – If they do lump it together, are you able to revisit the issue and say the Townspeople voted no on the whole thing.

Roger A. – Not right now, this is grandfathered.

Citizen – Would this medical marijuana be done by prescription only?

Roger A – Under medical marijuana there are two inspectors to oversee the whole state. At present, unless they have a complaint, they are not going to act.

Citizen – So at the moment, this marijuana is going to be grown for people with prescriptions by a medical provider only.

Roger A. – Yes, it is the only way.

Citizen – Is there a diagnosis or is it any diagnosis?

Roger A. – It depends on the doctor, they sign that the person needs to have marijuana.

Citizen – My concern is we start with seeing-eye dogs and now we have people bringing ostridge’s on airplanes. Things get abused. Is this going to stay a small business or is it going to get out of control?

Citizen – There are only two inspectors in the State of Maine, so take it from there.

Madge B. – This particular business cannot expand. The one in front of us. But is medical marijuana going to, yes I think as there are increasing numbers of people who want to use it. And you may have read that the Federal Government just approved a marijuana drug for epilepsy and so you may also see more and more marijuana based drugs approved for use.

Citizen – I just wonder about the ability to control expansion in a reasonable manner.

Madge B. & Roger A. – We can address the expansion and control it in our town.

Citizen – But what about the property?

Citizen – The fact that there is nothing that prohibits the people from driving to this facility, I would think this would require the Planning Board to have to provide for parking, distances and all the things required of a business that people have the ability to drive to. Whether Diane says no one will drive to it, that is just what she is saying. But because people can drive to it, would it make sense that you would require parking spaces and look at site distances that any other home business would require.

Steve F. – I think that we just prohibit people from the business.

Several board members agreed it would be a condition of approval.

Ms. Bragdon – I gave Barbara F. a copy of Title 22 of the Maine Medical Use of Marijuana Act. She read the information provided (see above). This lists the only people who can go into the growing facility.

Citizen – The only people that can go into the actual growing facility, but we heard it at the last meeting that people can drive to the facility and pick up their marijuana. To me it seems they can drive to the property, whether it is the intent to allow that or not, we have to take the position that it could be the intent, so she should have to provide the parking like other businesses that someone would drive to.

Steve F. – Or prohibit that activity as a condition of the conditional use.

Roger A. – There could be a condition that no one could pick up the product.

Citizen – There is traffic there now, people are driving there now and driving away.

Ms. Bragdon – We have had no patients there, just so you know.

Citizen – Is this agricultural?

Roger A. – No, this is not agricultural in the Zoning Ordinance. Roger stated that the board received a letter from Bourque and Clegg at 5:30 this evening addressing how the board is to review the application. Roger A. read the letter dated June 26, 2018 from Bradley C. Morin. It read in part as follows:

Shapleigh Planning Board Minutes – 6/26/18 Page 6 of 27

I am writing to follow up on the question of how the Board should review the pending application for a medical marijuana growing operation inside a residential garage.

First, the Planning Board needs to make findings of fact regarding the type of use. I previously looked at this issue to determine whether the use qualified as “agriculture” or a “home occupation” under the Shapleigh Zoning Ordinance. At first glance, the proposed use would seem to fit under the definition of “agriculture”. My reasoning is based on the fact that agriculture is a very specific use, including the production or keeping of plants for sale.

I would place this use in the category of agriculture, except we must consider footnote 5 of your land use table. This footnote states “marijuana is neither considered an agricultural crop nor commercial gardening. Marijuana is not considered a seasonal produce or plant. Conduct pursuant to the Maine Medical Use of Marijuana Act, 22 M.R.S.A. §558-C requires a conditional use permit”. This footnote suggests that the drafters of the ordinance did not intend for marijuana to be reviewed under the definition of “agriculture”. At the same time, it was not intended to be viewed as “commercial”. With this particular application, the closest category appears to be a home occupation.

I was initially hesitant to call marijuana growing a home occupation, since the definition refers to activities that are “customarily” carried on within dwelling units. Production of medical marijuana is certainly not a traditional activity in dwelling units, particularly since many communities in Maine are seeing these operations proliferating warehouses and converted mills. On the other hand, I understand that the State of Maine has been approving these operations in homes and garages (and has approved this particular applicant’s proposed use). Under those circumstances, the Board could make a finding that the use is customarily carried on within a dwelling or accessory structure (relying on the fact that the State of Maine is approving such activities in residential structures).1

I note that both home occupation and agriculture are listed as allowed uses within the shoreline district (with a conditional use permit). Furthermore, the language of footnote 5 states that medical marijuana requires a conditional use permit. This suggests that the use is allowed with conditions. Footnote 5 certainly does not suggest that medical marijuana is prohibited. Based on the evidence presented, the Board could make a finding that the use is allowed within the Shoreland district with a conditional use permit, under the heading of home occupation.2

1Any interpretation of “customary” is going to be somewhat subjective. There is no doubt that legal marijuana is a relatively new phenomenon. However, who is to say that the State is not creating a new “customary” occupation by allowing this in private homes? In the end, this is a factual question for the Planning Board to decide.

2I would also point out that the land use table includes a category for ‘uses similar to conditional uses”. Those “similar” uses are allowed with their own conditional use permit. Conceivably, this application could be viewed as being similar to either home occupation or agriculture. However, I do not feel it will be necessary for the Planning Board to reach that conclusion if they found sufficient facts to categorize the use as “home occupation”.

Roger A. asked if there were any other questions? Steve F. asked Roger to read the definition of Home Occupations. It read as follows:

Home Occupation: An occupation or profession which is customarily carried on in a dwelling unit or in a building or other structure accessory to a dwelling unit; carried on by a member of the family residing in the dwelling unit; clearly incidental and secondary to the use of the dwelling unit for

Shapleigh Planning Board Minutes – 6/26/18 Page 7 of 27

residential purposes. Real estate offices and resale of purchased merchandise will not be considered as home occupations.

Roger A. then read the ordinance §105-40. Home Occupations.

A. Home occupations shall be carried on wholly within the principal building or within a building or other structure accessory to it.

B. Not more than two persons outside the family shall be employed in the home occupation.

C. There shall be no exterior display, no exterior sign (except as permitted by the provisions of this chapter), no exterior storage of materials and no other exterior indication of the home occupation or variation from the residential character of the principal building.

D. No nuisance, heavy traffic, waste discharge, offensive noise, vibration, smoke, dust, odors, heat, glare or radiation shall be generated.

E. If existing off-street parking is required to be expanded, it shall be adequately screened from the road and adjacent lots (for example, with a dense screen of evergreens) and shall not be located between the house and the road.

Citizen – The letter that you read said that you ‘could’ approve this, it doesn’t say that you have to.

Roger A. – That’s true, we have to meet all the other conditions.

Citizen – Those conditions are for a home occupation. Are there more specific restrictions because you are on the lake. Property values, everyone is paying a lot of money to have a place on the lake. How is that possible to have an occupation on the lake?

Roger A. – The Planning Board can never look at money. It can’t look at what it costs to do anything. It can’t look at the monetary impact. The Planning Board has no review over that.

Citizen – So this can be anywhere in the whole town.

Roger A. – Provided it meets the ordinance, the criteria in the ordinance.

Citizen – So what about the part about the odor, the buffer zone with respect to parking. The lot is still only 50 feet wide and the abutters on either side are very close. You did say something about evergreens and buffers.

Roger A. – If there is going to be off-street parking.

Citizen – Right.

Roger A. – If the Planning Board does approve this, they could approve it with a condition that there are no clients on site, so it would be a mute point. Another thing, odors are not allowed to be beyond your lot lines. If the Planning Board did approve the application and odors got beyond the lot lines and people are smelling it, that is a complaint to the CEO. The CEO may have to shut them down if they can’t control it, but it will be very subjective.

Citizen – Does this make a non-conforming lot even more non-conforming?

Roger A. – There are no additions to the lot. (New Structures)

Citizen – From what I hear there is a fair amount of waste disposal that goes with an operation like this. You have to do something with the old plants. Does there need to be a plan in place with how you take care of that?

Roger A. & Madge B. – Yes, there needs to be a plan, the board will look at that.

Citizen – If we go to the CEO, and there is an odor that is outside of the lot, end of the story.

Citizen – What about the use of fertilizer within 100 feet of the water?

Roger A. – It is not allowed on the outside of the building. Inside the structure you have to dispose of the fertilizer away from the water.

Shapleigh Planning Board Minutes – 6/26/18 Page 8 of 27

Citizen – Is there a method for recovering waste water and fertilizer for this operation.

Citizen – If it goes into the septic system that is not good.

Ms. Bragdon – Everything is in pots. Nothing is outside. There is no waste water. And I am growing everything organic, there are no chemicals at all. If somehow anything got outside of the tent in the garage, it would be organic. Also, the garage that it is in is more than 100 feet from the lake.

Roland L. – The question was raised and I am interested in the answer, after the product is harvested, there are remnant stocks, stems, what-have-you, I am assuming you don’t reuse the same potting soil over and over again.

Ms. Bragdon – I do reuse the soil, I have been told it improves with reuse.

Roland L. – Every crop rotation doesn’t require that you dispose of the planting medium and replace it. So forget about that part of it. So get back to the stocks and stems and what-have-you. How are those properly disposed of?

Ms. Bragdon – I will be removing any waste product that I am not using and I can donate it to other caregivers. All of that product, stocks and leaves, they are all ground up and used as edibles, so I can donate that to another caregiver. I know of two caregivers one in North Berwick and one in Lebanon that are willing to take my waste.

Citizen – It very much surprises me that neighbors choose to turn their backs on all the other property owners that are here tonight and proceed with an operation that they know will diminish property values and hurt their neighbors.

Roland L. – When you talk about other neighbors are you referring to us as board members?

Citizen – I am referring to the people that are here voicing strong opposition to this operation. I know there are a couple of people that are supportive.

Roland L. – Right, because there was a gentlemen at the last meeting, who isn’t here this evening.

Citizen – Steve F. is a Realtor, tell me what you think an operation like this is going to do to other lake properties in the area.

Steve F. – From my standpoint looking at this project, if this is an operation that goes on within this woman’s garage, does not influence traffic, has no odor, so if I walked my dog by, I didn’t know what was going on, it isn’t going to impact the neighbor at all. There is actually a statement, there was a neighbor that spoke at the last meeting, he is living next door and he didn’t have a clue she was growing pot to begin with.

Citizen – People are going to have to be aware to get her services. Word gets around and people won’t want to live near it.

Ms. Bragdon – You don’t have to tell anybody what goes on at a neighbor’s house.

Citizen – Word gets around.

Ms. Bragdon – I just want to say I am not taking this lightly. You make it sound like I am Cheech & Chong and smoking with my buddies. I started to research this two years ago because I had friends and relatives that were ill. My friends asked me ‘what are you doing that for, you don’t even smoke’. I am doing it for medical reasons and I can go through lists of medical reasons such as chronic pain, depression, PTSD, social anxiety, cancer, epilepsy and as mentioned today the Federal Government approved a cannabis drug for children who have epilepsy. This is how important this is. The cancer institute is researching it, they are finding it inhibits tumor growth. You make it sound like I am there partying, I am not. I am doing it for medical reasons and I help people. When I started researching this, people started telling me they were taking it for different medical reasons and I had no idea all it could do. Medical marijuana is different from what you would think of with people smoking it from the 70’s. It is a different product, even being used in children.

Citizen – No one is denying the benefit of medical marijuana, what they are questioning is where you grow it. You grow it in an abandoned mill somewhere in a commercial area. Or do you grow it in a beautiful

Shapleigh Planning Board Minutes – 6/26/18 Page 9 of 27

recreational area on a southern Maine lake. We live here year round, you have year round neighbors and we are not arguing about the use of medical marijuana, we are arguing if this is the best place to grow it.

Roger A. asked if there were any other comments? There were none.

Roger A. began to review the Basic Performance Standards.

§105-20. Applicability of standards; prohibited uses.

A. These standards shall apply to all new or expanded uses of land and buildings which are listed as permitted or conditional uses in Article IV of this chapter.

B. Prohibited uses include all uses which would be obnoxious or injurious because of odor, dust, smoke, refuse matter, fumes, noise, vibration or waste material, or which would be dangerous to the health and safety of the community or which would disturb or annoy the community, notwithstanding any other provision of this chapter and applicable state and federal laws and regulations.

C. Plans for the effective control and/or elimination of the same shall be presented to the Planning Board for approval. When the effects of a use are uncertain, the Code Enforcement Office, after prior notification to and at the expense of the applicant, shall employ such independent recognized consultants as necessary to ensure compliance with all requirements of this Code specifically related to the public health, safety and welfare and the abatement of nuisances. The estimated costs of such studies shall be deposited with the Town Clerk prior to their undertaking.

105-21 – Traffic. There will be no traffic to the site, no clients are allowed to pick up their product at the applicants home.

105-22 – Noise. There is no noise generated by this activity.

105-23 – Dust, fumes, vapors and gases. There is no dust, fumes, vapors or gases generated by this activity.

105-24 – Odors. The product is to be grown inside a tent with a charcoal filter, inside a garage. There is no outdoor planting allowed.

105-25 – Glare. Security lighting is allowed. Lights shall be directed so that they do not glare onto neighboring properties.

105-26 – Stormwater runoff. All structures are existing, no changes to be made on site to effect stormwater.

105-27 – Erosion control. All structures are existing, no changes to be made on site to create an erosion control problem.

105-28 – Setbacks and screening. There are no changes being made that would necessitate screening. No new structures or parking area.

105-29 – Explosive materials. There are no explosive materials associated with this business.

105-30 – Water quality. All plants shall be kept in an enclosed structure, nothing added to the outside to affect water quality.

105-31 – Preservation of landscape; landscaping of parking and storage areas. There is no parking required. Clients are not allowed on site.

105-32 - Relation of proposed building to the environment. The buildings on site are in existence, they fit in well with the surrounding area.

105-33 – Refuse disposal. Refuse, which includes plant products not being utilized, will be taken off site by the applicant.

105-34 – Access Control to Route 109. N/A

Shapleigh Planning Board Minutes – 6/26/18 Page 10 of 27

105-40 – Home Occupations.

A. The business will be carried out wholly in an accessory structure to the principal building, the attached garage.

B. Ms. Bragdon is the only employee.

C. The applicant stated there shall be no sign associated with the business.

D. There are no clients allowed on site, there is no waste discharge with this activity, no noise, vibration, smoke, dust or radiation. Odors shall be kept inside the structure, no additional lighting added.

105-43 – Off-street parking and loading. There is no parking required, as clients are not allowed on site.

105-46 – Sanitary provisions. There is an existing State approved Subsurface Wastewater Disposal System in existence; there shall be no fertilizer used outside of the existing structure for the plants. Plants shall be grown indoors only. The structure is greater than 100 feet from the shoreline.

Madge B. asked if a copy of the wastewater permit was on file. It was noted that it is because the property was before the board for a Best Practical Location and the septic design was required at that time.

105-49 – Agriculture. N/A This is reviewed under Home Occupations.

Roland L. stated that in the past when businesses were going to generate some type of waste, whether it be antifreeze or oil, we have asked that the applicant provide the board with a letter from whoever was going to receive that indicating that they would receive it. Could the board ask the same of this applicant? Madge B. said she was going to ask the same thing. She thought the board should because it was important this be addressed.

Madge B. said she had a question about outside lighting. She asked if there was security lighting? Ms. Bragdon stated there was security lighting there now. Madge stated that the light is supposed to shine on the property and not face or glare onto the neighboring properties.

Citizen – The security went off after the last meeting. It went off for quite a while. It is quite loud and it is quite bright. It goes into abutting neighbors windows and it took awhile for them to turn it off. I don’t know what set it off.

Citizen – It wakes everybody up.

Citizen – Noise travels easily across the water. You can hear somebody whisper on the other side of the cove. I was wondering what your thoughts were, as to what to do about that.

Ann H. – There is a decibel that has a time limit to it.

Citizen – This was eleven o’clock at night.

Steve F. – The ordinance is addressing normal operations, not security. It is supposed to be loud.

Ann H. – It isn’t like a lawnmower this is a security system which is supposed to alert people something is going on.

Citizen – Weren’t you just saying something about a light not going beyond the property?

Ann H. – Like a normal high pressure sodium light that normally comes on at night. It’s not about a security system, that is supposed to be loud and shine.

Citizen – What we are asking, is this going to be a regular thing? That is excessive in every way.

Steve F. – Does it happen often?

Citizen – It has happened a few times, yes.

Citizen – Occasionally.

Ann H. – I think at the last meeting Diane said she accidently set it off a few times.

Ms. Bragdon – I can’t remember the last time.

Citizen – It was after the last meeting.

Shapleigh Planning Board Minutes – 6/26/18 Page 11 of 27

Ms. Bragdon – Prior to that it was probably last summer. But yes, I have set it off accidently and it takes some time to shut it off because I have to call the security company for them to shut it off. I can’t say it will never happen again.

Ann H. – I guess if it happens alot it would be something for the Code Enforcement Officer to deal with. Is this your permanent home?

Ms. Bragdon – Yes.

Ann H. – There is something in the Shapleigh ordinance that says ‘that would destroy or annoy the community’. So I think you would probably, not that it is dangerous, like the part before that states, but there is a part that speaks of destroy or annoy. I think we should address this somehow. I am one of the newest people on the board. I’m not sure how to address that, because there is annoyance in the community, so how do we do that?

Roger A. – Due to the fact this is an alarm system that goes off, it is not a noise that is going to be generated by the business, it is the same as having a fire alarm in your house. It is exceptionally loud until it is secured. It is something that you will have to deal with.

Mr. Reeves (accompanied Ms. Bragdon) – The security system has always been there. It is not like it was put there for the business. It has been there for at least six years.

Roger A. – If it gets to be a nuisance it may have to be changed.

Citizen – Is the section you just read dealing with just noise.

Roger A. – Noise in general.

Ann H. – I was reading about prohibited use, that section.

Citizen – There is a high level of annoyance.

Ann H. – I don’t know how the board deals with this, I am open to suggestions.

Steve F. – It says ‘Prohibited uses include all uses that would be obnoxious or injurious because of odor’, and then it goes on, I supposed we could debate that.

Citizen – Could you read it aloud once more so we can respond to it?

Roger A. – 105-20. Applicability of Standards; prohibited uses. Section B. Prohibited uses include all uses which would be obnoxious or injurious because of odor, dust, smoke, refuse matter, fumes, noise, vibration or waste material, or which would be dangerous to the health and safety of the community or which would disturb or annoy the community, notwithstanding any other provision of this chapter and applicable state and federal laws and regulations.

Citizen – It is my understanding, you just said with all the noise and this, that, and the other, or any operation that would be annoying to the community; it doesn’t tie those two together but it is an operation that is annoying to the community. This is pretty annoying.

Ms. Bragdon – I think there has to be a reason why it is annoying. You can’t just say it is annoying. I’ve talked to several neighbors, who are not here today, but they said they do not care about this.

Citizen – Well you had one here but there is a fair amount of people that are annoyed.

Madge B. – We have also had it is writing from someone that they were fine with it.

Madge B. – The other thing I would say is, what you are reading is ‘Prohibited’ uses. The ordinance does prohibit some uses in some districts. But this is ‘not’ a prohibited use, so we can’t apply that section for this use. This is a ‘conditional use’.

Citizen – Isn’t a prohibited use anything that is obnoxious or injurious?

Madge B. – Our Zoning Ordinance has permitted uses, conditional uses and prohibited uses, and that’s what you find in the Land Use Table. So in the Land Use Table there are prohibited uses. They don’t prohibited it because they create a noise or whatever.

Citizen – That section says because it is annoying to the community.

Madge B. – That is probably why it may be prohibited here (the Land Use Table). This isn’t a prohibited use. I’m sorry.

Shapleigh Planning Board Minutes – 6/26/18 Page 12 of 27

Roger A. read §105-73.A Conditional use permits, Authorization.

The Planning Board is hereby authorized to hear and decide upon applications for conditional use permits in accordance with state law and the provisions of this chapter. The Board shall approve, approve with modifications or conditions or disapprove an application for a conditional use permit. No conditional use permit shall be authorized unless specific provision for such conditional use is made in this chapter.

Roger A. stated the board met with the applicant, held a public hearing and notified abutters within 500 feet of the property. The Code Enforcement Officer attended all meetings. A decision will be made within 40 days of the public hearing. The Conditional Use shall expire if work or changed involved isn’t started within two years of the date the conditional use was authorized.

Roger A. then reviewed §105-73.G ‘Standards applicable to conditional uses’ and made findings of fact.

Standards applicable to conditional uses. It shall be the responsibility of the applicant to demonstrate that the proposed use meets all of the following criteria. The Board shall approve the application unless it makes written findings that one or more of these criteria have not been met.

1) The use will not have an adverse impact on spawning grounds, fish, aquatic life, birds or other wildlife habitat. Roger A. stated, it will not. The business will be held inside a structure, there is no outdoor activity associated with the business.

2) The use will conserve shore cover and visual, as well as actual, access to water bodies. Roger A. stated this is not applicable, nothing is taking place outside.

3) The use is consistent with the Comprehensive Plan. Roger A. stated it is, the Comp Plan wants home based businesses in the Town.

4) Traffic access to the site is safe. Roger A. stated there is no traffic coming to the site, this is a delivery based business; product to be delivered by the applicant and it will be a condition of the permit.

5) The site design is in conformance with all municipal flood hazard protection regulations. Roger A. stated it is, the structure is in existence, permitted by the Town and is not in the flood zone.

6) Adequate provision for the disposal of all wastewater and solid waste has been made. Roger A. stated the board will require information regarding plant waste. There is an existing State approved Subsurface Wastewater Disposal System. The plan is on file, Site Evaluator is Bruce L. Pohepek, License #101, plan dated 11/20/2009.

7) Adequate provision for the transportation, storage and disposal of any hazardous materials has been made. Roger A. stated that there is none generated by this activity.

8) A stormwater drainage system capable of handling fifty-year storm without adverse impact on adjacent properties has been designed. Roger A. stated the house is in existence and no changes are being made to the property. The house location was approved by the Planning Board 4/13/2010.

9) Adequate provisions to control soil erosion and sedimentation have been made. Roger A. stated there are no changes being made to the exterior of the existing structure.

10) There is adequate water supply to meet the demands of the proposed use and for fire protection purposes. Roger A. stated this location is next to the lake, so there is.

11) The provisions for buffer strips and on-site landscaping provide adequate protection to neighboring properties from detrimental features of the development, such as noise, glare, fumes, dust, odors and the like. Roger A. stated there are no major changes being made to the existing vegetation. There shall be no additional lighting added, no odors produced with the use of a filtration system, no fumes or dust is created by this activity. The only noise is from the required security system which is temporary.

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12) All performance standards in this chapter applicable to the proposed use will be met. Roger A. stated they shall with conditions.

Roger A. then reviewed Section H. Conditions attached to conditional uses.

(1) Upon consideration of the factors listed above, the Planning Board may attach such conditions, in additional to those required in this chapter, that it finds necessary to further the purposes of this chapter. Violation of any of these conditions shall be a violation of this chapter. Such conditions may include but are not limited to:

a) Specification for type of vegetation, increased setbacks and yards. – N/A No changes to the existing structures or vegetation.

b) Specified sewage disposal and water supply facilities. Existing State approved sewage disposal system on site. Water supply facility – N/A

c) Landscaping and planting screens. – N/A No outside storage.

d) Period of operation. – None needed, no clients shall come to the site.

e) Operational controls. N/A State oversight.

f) Professional inspection and maintenance. N/A State oversight.

g) Sureties. – N/A

h) Deed restrictions. – N/A

i) Restrictive covenants. – N/A

j) Locations of piers, docks, parking and signs. – N/A

k) Type of construction. – N/A

l) Any other conditions necessary to fulfill the purposes of this chapter.

(2) In evaluating each application, the Board may request the assistance of the County Soil and Water Conservation District, a state or federal agency or consultant which can provide technical assistance.

Madge B. stated the conditions of the permit are:

1) No patients / clients shall come to the site to pick up the marijuana product.

2) The business cannot operate until the Planning Board has a letter from the person who will accept the marijuana waste which includes stems / stalks and leaves.

3) There shall be no signage allowed.

Steve F. stated his only concern, due to the close location of the neighboring lots, was adequate fire protection. Ann H. asked Ms. Bragdon if she had a fire extinguisher in the garage. Ms. Bragdon stated that there was. Mr. Reeves stated that there were also heat and fire sensors in the garage. Madge B. asked what would cause a fire? Ann H. thought perhaps the lighting. Ms. Bragdon was asked about lighting and she stated she was using LED (which does not produce excessive heat). Madge believed there was no special electrical required. Ann stated correct, because they were using the tents with the LED lights in them. Madge didn’t think there was a fire danger. Steve said, as Roger was reviewing that was his only question.

Roger A. stated the Conditional Use Permit would be valid for three years, along with the permit from the State, and the CUP goes with the person and not the property. Roger thought that every three years Ms. Bragdon should have to renew the permit. Madge B. stated the reason she is conditioned is because if she doesn’t get her State permit, the board won’t issue additional approvals. Ms. Bragdon stated that her license was a yearly State approval. Madge did not think the board should have to revisit it every year. She thought based on this, a better condition would be that she submits a copy of the State license every year upon renewal. The board agreed this would work best.

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Roger A. stated the last condition would be:

4) A copy of a valid Maine State Medical Marijuana Caregiver license shall be submitted to the Planning Board yearly in order for the Conditional Use Permit to remain valid.

Madge B. made the motion to approve the Conditional Use Permit for a Home Occupation as a Medical Marijuana Caregiver for Diane Bragdon, on Map 34, Lot 3 (92 Cedar Drive) with the above stated four conditions. Roland L. 2nd the motion. All members were in favor. By a vote of 5 – 0, the vote was unanimous.

Nothing further was discussed.

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The Findings of Facts

1. The owner of Shapleigh Tax Map 34, Lot 3 (92 Cedar Drive), is Diane Bragdon of 92 Cedar Drive, Shapleigh, Maine 04076

2. The property is located in the Shoreland District and according to the assessor, the property contains .59 acres.

3. The applicant is before the board for a Conditional Use Permit to have a home occupation as a Medical Marijuana Caregiver for up to five patients, as allowed and licensed by the State of Maine Dept. of Health and Human Services.

4. The detailed description of the application is as follows:

As a Medical Marijuana Caregiver, registered with Maine DHHS, I will be abiding by all State laws.

The product will be in a locked, enclosed, secure existing building on the property.

This is a house call service only. Patients are not allowed on the premises.

There will be no changes made to the property. Existing buildings and vegetation will not be disturbed.

5. Received was a sketch plan which depicted the structures on site, all located beyond the 100 foot setback to the high water mark; the location of the well and leachfield; proof of ownership by listing deed reference Book 9769, Page 303.

6. Received was a copy of the State letter of approval for a Caregivers-Cultivator Growing Rights card. The letter provided the website where the rules, and statute are provided, that being: www.mainepublichealth.gov/mmm Also provided was a copy of Ms. Bragdon’s Maine Driver’s License dated 4/12/18, a copy of her Individual Caregiver card dated 5/9/2018 and MMMP Designation card, expiration date 4/18/2019.

7. Received was a copy of the Medical Use of Marijuana Program Caregiver Application, regulated by the State of Maine, Dept. of Health and Human Services, Division of Licensing and Regulatory Services. Also provided was the information from the Rules Governing the Maine Medical Use of Marijuana Program, 10-144 CMR Chapter 122, Effective Date: September 17, 2013, specifically Section 5: Primary Caregiver & Primary Caregiver’s Authorized Conduct.

8. Received was a letter from Town Attorney Bradley Morin, dated June 26, 2018 rendering a legal opinion as to whether or not this conditional use should be reviewed as a home occupation or agricultural use. It was his opinion, based on how the Shapleigh Zoning Ordinance is written that ‘Based on evidence

Shapleigh Planning Board Minutes – 6/26/18 Page 15 of 27

presented, the Board could make a finding that the use is allowed within the shoreland district with a conditional use permit, under the heading of home occupation’.

9. The board reviewed the Basic Performance Standards and the board concurred the application met all the standards imposed.

10. The board specifically reviewed Zoning Ordinance §105-40 Home Occupations, and §105-73 Conditional Uses and concurred the application and information as presented met the performance standards in these chapters with conditions.

11. A notice was mailed to all abutters within 500 feet of the property on May 23, 2018. Meetings were held on May 22, 2018, June 13, 2018 and June 26, 2018. A site inspection and Public Hearing were held on June 13, 2018.

12. The Planning Board unanimously agreed to approve the Conditional Use Permit to allow a home occupation as a State licensed Medical Marijuana Caregiver for up to five patients, to be located on Map 34, Lot 3, per the information provided with conditions.

13. The conditions of approval are:

1) No patients / clients shall come to the site to pick up the marijuana product.

2) The business cannot operate until the Planning Board has a letter from the person who will accept the marijuana waste which includes stems / stalks and leaves.

3) There shall be no signage allowed.

4) A copy of a valid Maine State Medical Marijuana Caregiver license shall be submitted to the Planning Board yearly in order for the Conditional Use Permit to remain valid.

Motion:

After careful consideration and a review of all material presented to the Board, including the review of the Zoning Ordinance ‘Basic Performance Standards’, §105-40 ‘Home Occupations’ and §105-73, ‘Conditional Uses, a motion was made on Tuesday, June 26, 2018, to approve the Conditional Use Permit to have a home occupation as a Maine State licensed Medical Marijuana Caregiver, to be located on Map 34, Lot 3, per the information provided with four conditions.

Vote:

By a unanimous vote of 5 – 0, the motion to approve the Conditional Use Permit to have a home occupation as a Maine State licensed Medical Marijuana Caregiver, to be located on Map 34, Lot 3, per the information provided with four conditions, was accepted.

Decision:

The Conditional Use Permit to have a home occupation as a Maine State licensed Medical Marijuana Caregiver, to be located on Map 34, Lot 3, per the information provided with four conditions was approved.

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Best Possible Location – New Foundation & Addition in Shoreland District – Map 36, Lot 35 (141 Indian Village Road) – William Neville, Applicant (Contractor); David Lemaire, Property Owner

Mr. Neville was present for the review of the application.

The applicant provided, along with the application, a plan depicting the existing structures on site which include the living quarters and existing deck(s), along with the location of the leachfield. The plan depicted the distance to the lot lines as 29’ to Lot 34 and 33’ to Lot 36, 55’ to the rear setback and 19’ 4” to Indian

Village Road. A second sketch shows the structure nearest to Square Pond as being 218’ 1” keeping it within the Shoreland District but beyond the 100 foot mark to the high water line. Also provided is a floor plan of the existing structure, the proposed mud room, which replaces the side deck, and an addition to the deck that faces Indian Village Road.

The detailed description is as follows: To remove decks, replace the front one to length of house. Add an addition to right side where deck is in place now. Jack home up and pour a walk-out foundation.

Roger A. asked Mr. Neville to let the board know again what he intended to do. Mr. Neville stated that he was putting on a 9’ x 22 foot addition on the side of the existing structure, removing an old deck. He would be jack up the existing camp and putting a foundation under it, and adding to the existing deck on the front of the house, adding a set of stairs off the deck. He said that the existing structure did not meet the setback to the road.

Board members did a site inspection of the property prior to this evenings meeting.

Roger A. began review of §105-4 ‘Nonconformance’ Section D(3) ‘Foundations’. It read as follows: Whenever a new, enlarged, or replacement foundation is constructed under a nonconforming structure, the structure and the new foundation must be placed such that the setback requirement is met to the greatest practical extent as determined by the Planning Board, basing its decision on the criteria specified in Subsection D(7), Relocation, below. Roger then read Section (7) ‘Relocation’ which includes the necessity of a revegetation plan for all disturbed areas. Roger noted the structure is greater than 100 feet beyond the high water mark, so tree replacement is not an issue.

Roger A. said that he believed the building could be moved back to meet the requirements in the ordinance, based on what he saw at the site visit. Roger was speaking about meeting the distance requirement to the road. Ann H. wondered if the septic would be a hindrance? Roland L. thought it would have to go back and to the side, so as not to affect the septic system. Mr. Neville believed he could move it back without affecting the septic system. He thought the homeowners would not be averse to moving the house back somewhat, especially since the footprint that they were requesting wasn’t being changed. He said he could move it back 10 or 15 feet without issue.

The board agreed that if the house were to be moved back, there would be a revegetation plan required. Ann H. asked how far back the structure could be moved without affecting the septic system? Mr. Neville did not feel the septic would be affected regardless of how far back he moved. Mr. Neville stated that the tank can be greater than 10 feet from the house but not any closer than 5. He did not see the septic system as an issue.

Steve F. asked what it was the structure can’t meet? Roger A. stated it currently cannot meet the road setback, it is only a little over 19 feet from the road. Mr. Neville said he would do whatever the board requests, but he also thought that perhaps there could be a compromise of 15 feet. Ann thought there may be a way to make the entire structure conforming. Roland L. asked where the driveway would be? Mr. Neville stated the driveway was where the board parked this evening. The Small side (neighbor).

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Roland L. didn’t think the applicants request not to go way back was a bad thing. He felt it would balance the home on the lot and would not have as extensive need for revegetation on the lot. Roger A. thought by putting it back to meet the road standard they could put the foundation in and then pick up the structure and put it on the foundation, and as they do that clean up the front. He did not feel there would need to be additional work. He believed it would be easier to do it this way. Mr. Neville agreed with respect to moving a house, but he noted that the homeowner didn’t want to go back that far. Roger said that the reason they are here is for best practical location, so this is the reason the board is looking at this. Madge B. agreed that the

board would like it back from the road. Roland noted there wasn’t a lot of traffic on this road. He knew it had to be done, so he supported the boards view.

Mr. Neville asked, that because moving it back brought it back beyond the 250 feet, could he put on a larger addition? Madge B. stated that was correct. Roger agreed as long as he met setbacks. Ann H. said she would like to see it as conforming as possible. Mr. Neville stated that he only had to meet the 50 feet from the road, after that it would not matter where he put it on the lot.

Steve F. said the existing sketch shows the building 19.4 feet from what? Mr. Neville stated it was from the edge of the road. Madge B. asked how far it should go back? Madge asked how far the owner wanted to go back? Mr. Neville stated, “As least as possible.” Madge said, “Ok”. Ann asked how many feet it needed to go back to make it conforming? Madge said, “Quite a ways to make it conforming”. Mr. Neville stated about 28 feet from the side of the road. Madge said it probably won’t get conforming, as she was concerned with the rear. Roger A. noted that the lot behind this lot was owned by the applicants as well. Members looked at the Town maps and they show both lots combined.

Steve F. stated that often the board is looking at a lot with much tighter constraints. Roger A. agreed and noted that often there are slopes the board has to consider as well. Mr. Neville agreed. Roger thought his opinion was that it makes sense to move it back and then they have more options for the structure. Mr. Neville did not disagree. Ann H. thought the structure should be made to be more conforming. Madge thought it would maximize their investment, giving them more options in the future.

Madge B. agreed that the board should propose to move it back, as it would be the best possible location. She said if the owner really objects they can come back and discuss it. Steve F. stated that if the board was going to make them move 50 feet back from the edge of the road, someone with an instrument should determine the location, so there will be no issue later on. He said they have to have the foundation set by a surveyor anyway. Madge agreed. Mr. Neville was concerned with the added cost of a surveyor. Roger A. said it didn’t matter if the board only moved it 2 feet, a surveyor would be required. Roger was referring to Section 105-4.D(7)(c) which states: All approved plans shall require confirmation in writing by a licensed surveyor that the placement of the structure is correct per the specifications approved by the Planning Board. Madge added that it was not a full survey, it is a foundation certification. Joe Stanley of LinePro was in the audience and agreed. Madge said this person will make certain the foundation is 50 feet from the edge of the road.

Steve F. wanted to be sure it was noted that the structure would not meet the 75 feet from the road centerline and that the board will be fine with it. The board members agreed.

Ann H. made the motion to approve the Best Possible Location to replace the existing foundation, add a 9’ x 22’ addition and extend front deck on Map 36, Lot 35, moving the structure back 50 feet from the edge of the road, per the plans presented with conditions. Madge B. 2nd the motion. All members were in favor. By a vote of 5 – 0, the vote was unanimous.

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The conditions of the permit are:

1) The structure shall be placed 50 feet from the edge of the road to meet the road setback, but does not have to meet the 75 feet from the centerline to be in compliance.

2) The foundation location shall be determined by a licensed surveyor to be correct per the specifications approved by the Planning Board.

3) Per Shapleigh Zoning Ordinance §105-3, no work shall begin without a building permit through the Code Enforcement Office.

Nothing further was discussed.

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The Findings of Fact

1. The owner of Shapleigh Tax Map 36, Lot 35 (141 Indian Village Road), is David Lemaire, mailing address of 38 Andrews Street, Manchester, NH 03104.

2. The property is located in the Shoreland District and according to the assessor contains 0.51 acres.

3. The applicant is before the board for a best possible location to add a new foundation, room addition and addition to existing deck.

4. The application detailed description is as follows: To remove decks, replace the front one to length of house. Add an addition to right side where deck is in place now. Jack home up and pour a walk-out foundation.

5. Received was a plan depicting the existing structures on site which included the living quarters and existing deck(s), along with the location of the leachfield. The plan depicted the distance to the lot lines as 29’ to Lot 34 and 33’ to Lot 36, 55’ to the rear setback and 19’ 4” to Indian Village Road. A second sketch shows the structure nearest to Square Pond as being 218’ 1” keeping it within the Shoreland District but beyond the 100 foot mark to the high water line.

6. Received was a floor plan of the existing structure, the proposed mud room, which replaces the side deck, and an addition to the deck that faces Indian Village Road, adding a stairway.

7. The board reviewed Zoning Ordinance §105-4, ‘Nonconformance’, and concurred the application and

information as presented met the standards applicable in this chapter.

8. A notice was mailed to all abutters within 500 feet of the property on June 14, 2018. Meetings were held on June 13, 2018, and June 26, 2018. A site inspection was conducted on June 26, 2018.

9. The Planning Board unanimously agreed to approve the Best Possible Location to replace the existing foundation, allow for the 9’ x 22’ addition and extend front deck on Map 36, Lot 35, per the site plan received with a revision made by the Planning Board, moving the structure back 50 feet from the side of the road.

10. The conditions of the approval are as follows:

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1) The structure shall be placed 50 feet from the edge of the road to meet the road setback, but does not have to meet the 75 foot requirement from the centerline to be in compliance.

2) The foundation location shall be determined by a licensed surveyor to be correct per the specifications approved by the Planning Board.

3) Per Shapleigh Zoning Ordinance §105-3, no work shall begin without a building permit through the Code Enforcement Office.

Motion:

After careful consideration and a review of all material presented to the Board, including the review of Zoning Ordinance §105-4, ‘Nonconformance’, a motion was made to approve the Best Possible Location to replace the existing foundation, allow for the 9’ x 22’ addition, and extend the front deck on Map 36, Lot 35, per the site plan received with a revision on June 26, 2018 made by the board, moving the structure back 50 feet from the side of the road, with conditions.

Vote:

By a unanimous vote of 5 – 0, the motion to approve the Best Possible Location application to replace the existing foundation, allow for the 9’ x 22’ addition, and extend the front deck on Map 36, Lot 35, per the site plan received with a revision on June 26, 2018 made by the board, moving the structure back 50 feet from the side of the road with conditions, was accepted.

Decision:

The Best Possible Location application to replace the existing foundation, allow for the 9’ x 22’ addition and extend the front deck on Map 36, Lot 35, per the site plan received with a revision on June 26, 2018 made by the board, moving the structure back 50 feet from the side of the road with conditions, was approved.

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Construction of a Private Way – Map 1, Lot 4 (428 Grant Road) – LinePro Land Surveying, LLC, Applicant; Allen White, Property Owner

Joe Stanley of LinePro was present to review the application. Mr. White was also in attendance. Members did a site visit before this evenings meeting.

Along with the application, received was a copy of the GIS picture, with an overlay of the existing lots 4 and 4A, the proposed new lot to be accessed by the right-of-way, and the location of the proposed ROW. Also received, a plan drafted by Joseph Stanley, PLS #2453, dated June 4, 2018, entitled ‘Plan of Private Way for Allen White, 42 Grant Road, Shapleigh, ME 04076, Of Property Located On Grant Road In Shapleigh, Maine’. The plan depicts the new private way, the location of a turn-around, the road & ditch section, location of an existing culvert, 2 foot contour lines along the roadway showing topography, the location of the 50 foot ROW and 16 foot travel way.

Plan Note 6 states: The Town of Shapleigh will not be responsible for the maintenance, repair, or plowing of the private way, and further lot divisions utilizing the private way are prohibited without prior approval of the Shapleigh Planning Board. The private way is to provide access to two lots, a maintenance agreement shall be required by the Planning Board and recorded in the York County Registry of Deeds. The maintenance agreement shall specify the rights and responsibilities of each lot owner with respect to the maintenance, repair and plowing of the private way.

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In addition, provided is what is entitled Exhibit A ‘Road & Drainage Maintenance Agreement’.

Members began by looking at § 105-60.1 ‘Private ways’, Madge read Section E(1) which is as follows: One turnout to provide space for two vehicles to pass shall be provided for every 500 feet of private way. It was noted that in this case the applicant was asking to have the turnaround at about 250 feet in, in an existing location that can meet the criteria for the size of the turnaround. It was noted by Mr. Stanley that the roadway would be used by two houses up to this point, then only one house at the end of the road.

Mr. Stanley began by stating they were proposing a private way for one additional house lot on an existing driveway for a home at the rear of the property. He stated it was a well-built road. He said the applicant was looking for the Town to approve approximately 500 feet of private way, so the new lot will have the required road frontage for a lot. He stated that in most areas on the existing road there was 16 feet of travel way, but noted there were a few areas that needed to have a foot or two added to meet the standard in the ordinance. He said there were existing watercourses and ditching in existence, along with a culvert.

Mr. Stanley stated that he did look at it after a recent rain event and did not see any sediment that had moved. He felt because this road had been used for years, it was well established and it appears it is not affected by stormwater. Mr. Stanley addressed Steve F., who was unable to attend the last meeting, that typically he places the turnaround 500 feet in but in this instance they wanted to use an existing area to turn around, rather than disrupt an area up the road. He felt overall this was a straight forward plan.

Steve F. said he didn’t have any questions. Madge B. said it was an impressive road. There were no signs of erosion, she felt it was well built.

Roger A. stated that he wanted to bring up Section H, which read as follows: After a private way has been approved by the Planning Board to provide access to a lot or lots, no further lots shall be created which are to be provided access by means of the private way without the prior approval of the use of the private way for access to such lots by the Planning Board. Mr. Stanley reminded the board that this was stated in Note 6 on the Private Way plan.

Roger A. asked if there were any other questions? There were none.

Steve F. made the motion to approve the Private Way Plan drafted by Joseph Stanley, PLS #2453, entitled ‘Plan of Private Way for Allen White, 42 Grant Road, Shapleigh, ME 04076’. Ann H. 2nd the motion. All members were in favor. By a vote of 5 – 0, the vote was unanimous.

Roger A. stated that the plan had to be recorded within 90 days of approval at the York County Registry of Deeds or the plan will become null and void.

Nothing further was discussed.

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The Findings of Facts

1. The current owner of Shapleigh Tax Map 1, Lot 4 is Norman White Inc., of 28 Grant Road, Shapleigh, Maine 04076. The right-of-way is located on a portion of Lot 4. The lot to be served shall be owned by Alan White, currently of 42 Grant Road, Shapleigh, Maine 04076.

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2. The property, Tax Map 1, Lot 4, is located in the General Purpose District and according to the Assessor’s Office contains 141.5 Acres.

3. Received was a copy of the GIS picture, with an overlay of the existing lots 4 and 4A, the proposed new lot to be accessed by the Private Way and the location of the proposed Private Way.

4. Received was a plan drafted by Joseph Stanley, PLS #2453, dated June 4, 2018, entitled ‘Plan of Private Way for Allen White, 42 Grant Road, Shapleigh, ME 04076, Of Property Located On Grant Road In Shapleigh, Maine’. The plan depicts the new private way, the location of a turn-around, the road & ditch

section, location of existing culvert, 2 foot contour lines along the roadway showing topography, the location of the 50 foot right-of-way and 16 foot travel way.

5. Private Way Note 6 states:

The Town of Shapleigh will not be responsible for the maintenance, repair, or plowing of the private way and further lot divisions utilizing the private way are prohibited without prior approval of the Shapleigh Planning Board. The private way is to provide access to two lots, a maintenance agreement shall be required by the Planning Board and recorded in the York County Registry of Deeds. The maintenance

agreement shall specify the rights and responsibilities of each lot owner with respect to the maintenance, repair and plowing of the private way.

6. Received is what is entitled Exhibit A ‘Road & Drainage Maintenance Agreement’.

7. A notice to abutters within 500 feet of the property was mailed on Wednesday, June 14, 2018. A site inspection was conducted on Tuesday, June 26, 2018, prior to the planning board meeting. Meetings were held on June 13, 2018 and June 26, 2018.

8. After review of Zoning Ordinance §105-60.1 ‘Private Way’s’, the Planning Board unanimously agreed to approve the Construction of a Private Way to access two lots, per the plans drafted by Joseph Stanley, PLS #2453, dated June 4, 2018, entitled ‘Plan of Private Way for Allen White, 42 Grant Road, Shapleigh, ME 04076, Of Property Located On Grant Road In Shapleigh, Maine’, as the private way depicted on the plan met all the requirements in the ordinance.

9. The applicant has 90 days to register the approved plan with the York County Registry of Deeds and return a Mylar copy, with the book and page number, back to the planning board. If a registered copy is not returned to the board, the approved plan shall be null and void.

Motion:

A motion was made on Tuesday, June 26, 2018, to approve the Construction of the Private Way to access two lots, per the plans drafted by Joseph Stanley, PLS #2453, dated June 4, 2018, entitled ‘Plan of Private Way for Allen White, 42 Grant Road, Shapleigh, ME 04076, Of Property Located On Grant Road In Shapleigh, Maine’.

Vote:

By a unanimous vote of 5 – 0, the motion to approve the Construction of the Private Way plan, per the plans drafted by Joseph Stanley, PLS #2453, dated June 4, 2018, entitled ‘Plan of Private Way for Allen White, 42 Grant Road, Shapleigh, ME 04076, Of Property Located On Grant Road In Shapleigh, Maine’, was accepted.

Shapleigh Planning Board Minutes – 6/26/18 Page 22 of 27

Decision:

The Construction of the Private Way plan drafted by Joseph Stanley, PLS #2453, dated June 4, 2018, entitled ‘Plan of Private Way for Allen White, 42 Grant Road, Shapleigh, ME 04076, Of Property Located On Grant Road In Shapleigh, Maine’, was approved.

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Amendment to a Subdivision – Sandy Point – Create Road Frontage for Map 12, Lot 22-4 (That was not accomplished by the original subdivision applicant) – Ted Theriault, Applicant & Owner

Mr. Theriault was present for the review of the amended subdivision plan.

At the first meeting, provided was a copy of the original approved subdivision named Sandy Point, approval date of 6/1/1991; a copy of the Town Tax Map depicting the proposed division of Lot 4 (the proposed division was removed from the application by the applicant); and a copy of the Warranty Deed transferring ownership of Lot 4 from Angie Will Young of Old Orchard Beach ME & Michael Domorestsky of Alton NH to Theodore W. Theriault & Penny Theriault of Shapleigh ME, Book 17708, Page 279, dated 5/7/18.

Mr. Theriault was originally proposing to divide Lot 4, but after the discussion on May 8th, he felt the cost to do so was cost prohibitive, so he decided to only create access to Lot 4 using the private way standards.

This evening Mr. Theriault provided the board members with a plan entitled ‘Subdivision Amendment Plan of Lot #4 “Sandy Point for Roger Croteau” Approved by the Shapleigh Planning Board 6-11-91’, drafted by David Hughes, PLS #2234 of Livingston-Hughes, Professional Land Surveying Corporation, Kennebunkport, Maine, dated June 14, 2018. The plan depicts the proposed 50’ right-of-way which begins at Archer Street and turns onto Lot 4 for a distance of 200 feet, creating the required 200 feet of road frontage. Also on the plan was a road and ditch section for the private way to be created.

Mr. Theriault noted that he did not have the Mylar with him this evening. He did have a large paper copy. Mr. Theriault asked if the board needed anything else this evening? He believed he created the road as the board requested. Roger A. asked if this was a 50 foot right-of-way. Mr. Theriault stated that it was. He stated that the road would be created to the town’s standards.

Madge B. noted that the neighbors appeared relieved by what was taking place. Mr. Theriault agreed. Roger A. stated that originally the board wanted Archer Street paved and asked them to widen it out where it was possible, which is why Archer is not 50 feet the entire length. Roger said it was because the applicant didn’t own one of the abutting lots. Roger said because it was an ATV trail when it was being reviewed the board had them add some rocks to deal with the washout. Mr. Theriault asked if someone came in and bought the abutting property, the lot that would trigger the paving of Archer per the original plan, would they be required to pave it? Roger stated that they would if they did any division to the property. Roger said because it is on the other side of Archer, it would be reviewed separately.

Roger A. stated he had no issue with the amendment to the subdivision, creating 200 feet of road frontage for Lot 4 off of Archer Street.

Roland L. made the motion to approve the amendment to the subdivision know as Sandy Point, specifically Map 12, Lot 22-4, creating 200 feet of road frontage on Lot 4. Steve F. 2nd the motion. All members were in favor. By a vote of 5 – 0, the vote was unanimous.

Shapleigh Planning Board Minutes – 6/26/18 Page 23 of 27

Board members signed the paper copy presented. Roger A. stated a Mylar needed to be recorded at the York County Registry of Deeds within 90 day of signatures or the amendment would become null and void. Mr. Theriault was also told that the board needed a Mylar copy and two paper copies for the file, once he had it recorded.

Nothing further was discussed.

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The Findings of Fact

  1. The owners of the Map 12, Lot 22-4 are Theodore W. Theriault and Penny Theriault whose mailing address is PO Box 62, Shapleigh, Maine 04076.
  2. The applicant demonstrated a legal interest in the property by Warranty Deed transferring ownership of Lot 4 from Angie Will Young of Old Orchard Beach ME & Michael Domorestsky of Alton NH to Theodore W. Theriault & Penny Theriault of Shapleigh ME, Book 17708, Page 279, dated 5/7/18, as registered at the YCRD.
  3. The subdivision lot affected by the amendment to the subdivision is located at Shapleigh Tax Map 12, Lot 22-4 (Knob Hill), and is both in the General Purpose District and Shoreland District. The ROW will be located in the General Purpose District.
  4. The applicant requests the ability to create 200 feet of road frontage on Lot 22-4 to the Town’s Standards.
  5. Provided was a copy of the original approved subdivision plan named Sandy Point, approval date of 6/1/1991, and a copy of the Town Tax Map depicting Lot 4.
  6. Provided was a final plan entitled ‘Subdivision Amendment Plan of Lot #4 “Sandy Point for Roger Croteau” Approved by the Shapleigh Planning Board 6-11-91’, drafted by David Hughes, PLS #2234 of Livingston-Hughes, Professional Land Surveying Corporation, Kennebunkport, Maine, dated June 14, 2018. The plan depicts the proposed 50’ right-of-way which begins at Archer Street and turns onto Lot 4 for a distance of 200 feet, creating the required 200 feet of road frontage. Also on the plan was a road and ditch section for the private way to be created.
  7. A public hearing was held on June 26, 2018. A notice to abutters within 500 feet of the property was mailed on June 13, 2018 and a site inspection was done on an individual basis. Meetings were held on May 8, 2018, May 22, 2018 and June 26, 2018.

Conclusions

After review of the subdivision file for Sandy Point Subdivision, ‘ARTICLE XI ‘Street and Storm Drainage Design and Construction Standards’ contained within Subdivision of Land Chapter 89, along with the information and amended subdivision plan provided, the board concluded the right-of-way as presented, along with the private way details met the standards in the Town’s Subdivision Ordinance.

Planning Board Action

Based on the above facts and conclusions, on June 26, 2018, the Planning Board voted to approve the application for an amendment to the subdivision known as Final Subdivision Plan of Sandy Point for Roger V. Croteau, Plan Book 203 Page 11, specifically allowing Lot 22-4 to create a 50 foot right-of-way and 200 feet of road frontage within the lot, per the final plan presented, drafted by David Hughes, PLS #2234 of Livingston-Hughes, Professional Land Surveying Corporation, Kennebunkport, Maine, dated June 14, 2018 with the following conditions:

Shapleigh Planning Board Minutes – 6/26/18 Page 24 of 27

1. All conditions from the original subdivision plan known as Final Subdivision Plan of Sandy Point for Roger V. Croteau, Plan Book 203 Page 11, registered at the YCRD, approved by the Planning Board on June 11, 1991, shall remain in effect.

2. Any amendment to the subdivision not recorded at the York County Registry of Deeds within ninety days of the date upon which the plan is approved and signed by the Planning Board shall become null and void, unless an extension is granted by the Board in writing. A copy of the registered Mylar plan to be given to the Planning Board Secretary for proof of registration, along with two paper copies.

3. No changes, erasures, modification, or revisions shall be made in any final plan after approval has been given, unless the revised final plan is first submitted to the Planning Board and the Board approves any modifications.

Decision

On June 26, 2018, the Planning Board voted to approve the application for an amendment to the subdivision known as Final Subdivision Plan of Sandy Point for Roger V. Croteau, Plan Book 203 Page 115, specifically approving a 50 foot right-of-way for a distance of 200 feet on Lot 22-4 to create road frontage per the final plan, entitled ‘Subdivision Amendment Plan of Lot #4 “Sandy Point for Roger Croteau” Approved by the Shapleigh Planning Board 6-11-91’, drafted by David Hughes,

PLS #2234 of Livingston-Hughes, Professional Land Surveying Corporation, Kennebunkport, Maine, dated June 14, 2018. By a vote of 5 – 0, the decision was unanimous.

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14 Lot Major Subdivision (Great Hollow Acres Extension) – Map 10, Lot 6A & 7 (White Pine & Town Farm Road) – Jeffrey Morrison, Property Owner; Jason Vafiades, Representative

Mr. Vafiades was present for the review of the application.

The subdivision application for the 14 lot subdivision, to be known as Great Hollow Acres Extension, contained the following information:

Name of Property Owner and Applicant: Jeffrey W. Morrison, mailing address 20 East Elm Street, Yarmouth, Maine 04096

Name of Authorized Agent: Jason Vafiades, mailing address of 541 US Route One, Suite 21, Freeport, Maine 04032

Name of Surveyor, Engineer or others preparing the plan: Brad Lodge, Middle Branch, LLC,

mailing address of 1A Depot Street, Alfred, Maine 04002 Registration # 2057

Land Information:

Location of Property: YCRD Book 14362, Page 551

Shapleigh Tax Map 10, Lot(s) 6A & 7

Current Zoning: General Purpose District (GP)

None of the property is within 250 of the high-water mark of a water body.

Acreage to be

Developed: 30± Acres

Restrictive

Covenants: Homeowners Documents

Shapleigh Planning Board Minutes – 6/26/18 Page 25 of 27

Part of prior

Subdivision: Yes

No other divisions within 5 years.

Existing Use: Woods, previously used as a gravel pit.

The parcel does not include a waterbody.

The parcel is not within a special flood hazard area.

General Information:

Proposed Name of

Development: Great Hollow Acres Extension

Number of Lots: (14) Fourteen

Date of Construction: Fall of 2018

Date of Completion: Spring of 2019

Infrastructure

Required: No

The property currently has road access.

Estimated Cost of

Improvements: $300,000

Method of Water

Supply: Individual Wells

Method of Sewer

Disposal: Individual Septic Systems

Method of Fire

Protection: Cistern

Streets, Recreation Area(s) and Common Land: To be determined.

Requested Waiver(s): No

Application dated: June 1, 2018

In addition, received from the applicant was a letter to Land Use Secretary Barbara Felong, dated May 1, 2018 from Jason Vafiades of Atlantic Resource Consultants. The letter gave an overview of what the applicant, Jeffrey Morrison, was proposing for Map 10, Lots 6A, which stated in part that the applicant proposed a 14 lot subdivision; extending White Pine Lane into the subject property, as well as creating a new roadway, extending from White Pine Lane to Town Farm Road. The letter stated that they would meet with the Fire Chief, Road Commissioner and as part of the project approval, a Maine Department of Environmental Protection Stormwater Permit would be required. The road would be constructed to Town standards and electric services would be via underground primary power.

The applicant provided a copy of the USGS Map, with an overlay of the location of the project. In addition, a Sketch Plan was received, drafted and designed by Atlantic Resource Consultants, dated February 15, 2018, entitled ‘Tax Map: 10, Lots: 6A & 7, Shapleigh, Maine – Phase I Subdivision, Sketch Plan’. The plan depicted the existing four lots on White Pine Lane, the proposed road extension and 14 lots and areas entitled ‘Open Space’ and ‘Land Reserved for Future Development’. The sketch plan also cited the Net Residential Density Calculations.

Roger A. asked Mr. Vafiades to let the board know what they were proposing. Mr. Vafiades stated he was before the board on behalf of Jeffrey Morrison. He stated that Mr. Morrison has a large amount of acreage off of White Pine Lane, which also has a subdivision known as Great Hollow Acres, which consists of four lots built on a road that is to the town’s standards. He said that Mr. Morrison wants to extend the road in and

Shapleigh Planning Board Minutes – 6/26/18 Page 26 of 27

create 14 lots. He stated it would be private water, private septic systems and underground power. He said there would be a cistern installed for the Fire Department, he believed it would be a 30,000 gallon tank. He thought this would be a standard subdivision, with some land left to reserve for the future. He felt it would be 10 or 15 years before Mr. Morrison developed the reserved land.

Mr. Vafiades stated that the area they are using was in part a gravel pit in the past. He noted that what they are proposing is a little different. He said they would build the roadway out to Town Farm Road, so they will not disturb the homes on White Pine while construction is taking place. He said after the road is built, he may leave it open for residents to use to come out onto Town Farm, or it could be gated and a key given to the fire department, they were open to what the town would want.

Mr. Vafiades stated some open space would be left open. There is a moth habitat, so they will try to leave that area as open as possible. He stated the pine is an indicator of the area the moth lives in. The board knew the area because of a previous subdivision review (the subdivision never was approved, it was pulled by the applicant). Madge B. stated it was Pitch Pine and Scrub Oak. He said they would try to stay away from that area. He said the area they would build had nice sandy soils which would be good for home sites.

Roger A. asked about the size of the lots, and noted the wet area delineated on the plan. He asked if the wet area was deleted from the lot size calculations? Mr. Vafiades stated that it was, there is net area calculations on the plan for the entire area and for individual parcels. He said lot sizes are in excess of 30,000 sf. Roger stated they need to be 80,000 sf. Madge B. and Mr. Vafiades stated it was a cluster subdivision. He said each lot is about an acre in size. He said there was an open space area which includes the amount of area that would be used for traditional sized lots. He added that the board was looking at a sketch plan.

Roger A. asked if the road would be paved? Mr. Vafiades stated, “Yes, to the town standards”. Roland L. asked if there would be sidewalks? Mr. Vafiades was not sure but he thought they would prefer not to have them, because they are not connected to anything. He said it was open for discussion.

Mr. Theriault asked if there would be a minimum house size? Mr. Vafiades said there would be Homeowners Documents but he didn’t think they would be too restrictive.

Roger A. stated that when the initial subdivision (on White Pine) was before the board, the DEP was involved for the stream crossing. Mr. Vafiades was aware of that and he stated they needed a permit from the DEP, because they needed to fill in about 7000 sf of wetlands to access the area they would be developing.

Roland L. said there was also an issue with lighting and the moths. Roger A. agreed but it was in a subdivision on the other side of this property off Route 11. Mr. Vafiades said they were open to discuss this, noting that he assumed lighting would be bad. Roger stated they didn’t want any lighting on the exterior of the house, because it would draw the moths in. Roland agreed there was a lot of discussion on this. Madge B. agreed it was on the other side, in the Pitch Pine, Scrub Oak area. Mr. Vafiades stated that he assumed moths would sense light for quite a distance, so he would try to get an opinion on it. Roger also thought there was a requirement for the other development to burn the area. Roland believed it was because of the limitations for the moth, that they did not pursue the development. Roger agreed.

Roland L. asked if the board was doing a site visit, was there a trail to follow? Mr. Vafiades stated there was not at this time and he planned on having his crew cut a slash line to follow. The board asked when the area might be ready? Mr. Vafiades said he needed some time. The board asked that he get in touch with Barbara when he was ready for the board to view the area, as well as do further plan review.

Shapleigh Planning Board Minutes – 6/26/18 Page 27 of 27

Nothing further was discussed.

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Growth Permits – Map 40, Lot 30A (Granny Kent Pond Road) GP #05-18

Legal lot of record, meeting the requirements for a buildable lot in Shapleigh.

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The Planning Board meeting ended at 9:45 p.m.

Shapleigh Planning Board Minutes – 6/26/18 Page 27 of 27

NOTE: The summer hours are in effect beginning the first meeting in April, the meetings will begin at 7:30 p.m. and public hearings will be held at 7:00 p.m.

The next meeting will be held Tuesday, July 10, 2018 at 7:30 p.m. The Planning Board meets the 2nd and 4th Tuesday of each month unless it falls on a holiday or Election Day. Any scheduled public hearing takes place at 7:00 p.m. prior to the scheduled meeting. Also, should there be a cancellation due to a storm event, holiday or Election, the meeting will typically be held the following Wednesday, also at 7:30 p.m. Please contact the Land Use Secretary if there is a question in scheduling, 207-636-2844, x404.

Respectively submitted,

Barbara Felong,

Land Use Secretary planningboard@shapleigh.net