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Shapleigh Planning Board

Minutes

Tuesday, August 27, 2019

Members in attendance: Roger Allaire (Chairman), Steve Foglio (Vice Chairman), Roland Legere, Maggie Moody and Alternate Ann Harris. Code Enforcement Officer Mike Demers was also in attendance. Madge Baker was unable to attend.

Ann H. sat in as a regular member this evening.

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Minutes are not verbatim, unless in quotes “” – If the name of a citizen making a comment was not requested by the Planning Board Chairman, the reference to their name will be known as ‘Citizen’ or ‘Abutter’ depending on whom is speaking.

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The minutes from Tuesday, August 13, 2019 were accepted as read.

The Planning Board meeting started at 7:30 p.m.

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After-the-Fact Conditional Use Permit – Earth Moving in the Shoreland District – Put in a Lawn – Map 16, Lot 31 (66 Cattail Loop) – Lee Mencoboni, Applicant

Mr. Mencoboni was present for the review of the application. Note: Planning Board members did a site inspection prior to this evenings meeting.

Along with the application, provided was a sketch plan which depicted the location of the existing structures, gravel driveway, along with areas shaded in green entitled ‘Proposed New Lawn’ and a notation that stated ‘Removed Shed’ with an arrow pointing to the shed that was removed.

The detailed description of the project is as follows: Planting of a New Lawn

Roger A. opened the review by stating the board did have some correspondence from an abutting property owner. He read the letter to the members and audience, it read in part as follows:

Thank you for your letter about permitting at 66 Cattail Loop. Please understand that our concerns for the Shoreland District are not specific to Cattail Loop, but for all of Mousam Lake.

According to Maine Shoreland Zoning: A Handbook for Shoreland Owners, ‘responsible development’ seeks to conserve shore cover. Many of the camps on Mousam Lake were built before the 1970s and do not have proper setback from the water. They are ‘Non-conforming’. The handbook cautions that we should use the lake with “the aim of reducing non-conformity over time”. (Page 26) The temptation to replace bushes and low plantings with lawn does not follow that guideline.

We refer you to the Buffer Handbook: Guide to Creating Vegetated Buffers for Lakefront Properties. The authors stress the importance of plants within 250 of the water. “Properties without vegetation have no barrier against sediments and pollution”, they said; and define buffer strips as “trees, shrubs, and ground cover that block sediments before they reach the lake”. (Page 4) They continue to say, “Environmental

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professionals highly recommend creating a vegetative buffer as an effective conservation practice (or Best Management Practice – ‘BMP’) for controlling storm water runoff pollution”. Unfortunately, a border of rocks is not a barrier against sediments and pollution. The Handbook describes effective buffers and the role of buffer planning. The Buffer Handbook suggest “Lawns are best used as part of an overall landscape design” that combines open space for outdoor activities, as well as proper plantings to protect the lake. A lawn is not a good buffer alone, partly because it does not stop surface erosion and partly because the use of fertilizers, herbicides, and pesticides are bad for the lake. (Page 5) The Buffer Handbook Plant List contains a wealth of information about choosing effective buffer plans from ground cover to trees. The Maine DEP has created DEP Issue Profile, Rev. 2018, which defines a ‘well distributed stand of trees and other vegetation’. This booklet and the others we have mentioned are available from the Maine DEP in printable form.

We hope that you will require all those who wish to change their landscaping to create and maintain an effective vegetative buffer on their property. Please assist them, when possible, in finding resources to help develop an overall buffer plan. Robert B. & Susan W. Riding

Roger A. asked if there were any comments about the project from the DEP? CEO Demers stated he had no comment from the DEP. Roger asked Mr. Mencoboni if he heard from the DEP? He stated, “I did. I got a call from a lady named Claire yesterday and she gave the go ahead but she said you wouldn’t get it for a few days”. Roger asked Mr. Mencoboni when he submitted the application? He said it was submitted before the last meeting but it came back because there were some things he had to correct. He said he did correct it, and sent it back to the DEP the next day. He believed it was 10 days ago he mailed it back.

Roland L. wanted to know if they were referencing a Permit by Rule application? Mr. Mencoboni said he said he was talking about the DEP paperwork he had to fill out. Roland asked when the DEP said Mr. Mencoboni was going to be hearing from them in a few days, was this in regards to the Permit by Rule? Mr. Mencoboni believed so. Steve F. asked what the lady had concerns about? Mr. Mencoboni said that what she asked him about was did he chew up anything? He said he answered that he did not, he just put loam on top. He said there was something else she asked but he didn’t recall what it was. Mr. Mencoboni said that whatever he answered, along with what was on the sheet, she said it was fine. Roland said that he wasn’t trying to dispute his statement but it appeared to him looking at the area at the site inspection, there were clumps of sod, so something had to be pushed up. Roland said that this was besides the bark mulch that was put down. Mr. Mencoboni said he absolutely did not push up the area, all they did was cover it with the loam. He said he didn’t know what it was Roland was speaking about. Roland asked if anyone else had seen the sod? Roger A. said he didn’t notice, but perhaps when going over the area with the machine, some of the grass was picked up and distributed. Steve F. asked if they installed the silt fence with a skid steer? Mr. Mencoboni stated, “No”.

Roger A. stated that the newly proposed lawn was 6 to 8 inches higher than it was before. He said with the existing silt fence, he did not know how Mr. Mencoboni planned on keeping the erosion from getting into the lake, even if he planted grass. Roger believed there would have to be some kind of a buffer in between the rocks and silt fence, and where the proposed lawn is and the rest of the property. Roger said the rocks can’t be picked up higher. Mr. Mencoboni stated, “I can do that easily”. Ann H. asked if there was a place or somebody with a specific certification, like a landscape place, that can go to his property and do a design that keeps everything from going into the lake? Roger said there was. He said

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Springvale Nurseries can come up with a plan, and there are others. Ann stated that she wanted to be sure that he went to someone that would be qualified, considering what he had gone thru. Roger said, had the contractor doing the work been DEP certified, he may have known to be more careful.

Steve F. said the requirement falls on the landowner, and he felt at this point Mr. Mencoboni was prepared to do what the board requests. Steve said in the past the board has said they would not tell the landowner what the ‘fix’ is. He said unless the board is prepared to do it in this situation, then he felt the board should table the application until such time the applicant can provide them with a plan. Steve said he could produce a picture which shows a green grass lawn, but he felt the board now has an opportunity to make this situation better than it was before.

Ann H. stated she did not feel she was qualified to make a decision, not knowing exactly what plantings would best protect the lake. She would rather have a professional come up with a plan. Maggie M. said the handbook that is mentioned in the letter is a place to start to help in this situation. Ann told Mr. Mencoboni that he could let the board know when he had a plan created on how he would keep erosion from going into the lake, a planting plan. Steve F. believed time was of the essence, so he did not want this delayed any longer than possible.

Ann H. asked if the board needed him to come back with a new plan, or could he come up with something tonight? Steve F. said unless the board can have him this evening modify the plan, he will need to come back. He felt the board was leaning toward having him come back with a new plan. Roger A. agreed. Steve said again that in the past the board has required the applicant to come back with a new landscaping plan. Roger agreed. Steve said in the end it is up to the board. Ann said that she was hearing from the applicant that he did not know what it would take to keep the erosion from going into the lake. Mr. Mencoboni said he was told tonight that he could use four feet of the mulch and then keep the lawn beyond that. He said he could also do plantings if the board would like that. Steve said he had no problem amending the existing plan. Maggie M. believed a combination of mulch and plantings might be the better plan, because there is such a wide area that is exposed.

Mr. Mencoboni asked the board where he would find out what kind of plantings to use. Ann H. said if he spoke with Springvale Nurseries they would help. Roland L. stated that York County Soil and Water Conservation is a better resource for this kind of information. He stated that they were located in Springvale. Ann asked if they would go to the site? Roger A. stated, “Yes, and they will actually do a design”. Ann asked if they would look at the soil, trees, and location, she was not familiar with them? Roger said they would. Steve F. asked if the board was going to review this or were they ok with having the CEO look at the plan? CEO Demers stated, “I would say approve or disapprove the lawn, pending DEP approval and based on the recommendation of the soils expert”.

Roger A. stated that the retaining wall on site was not on the plan presented. Roger said he was referring to the wall noted at the site inspection and that Mr. Mencoboni said would be restabilized with a new wall and wooden deck, which would be smaller than the original. Mr. Mencoboni stated that the plan he provided for the board was an old plan from the former owner, but it was all he could find to show the lawn. Roger said there was concrete piled up on site. Mr. Mencoboni stated it was going to be removed, it was part of an old shed full of ants, so the shed was taken down. Roger wanted to know where the debris would be removed to, noting it could not go to the transfer station. Mr. Mencoboni wasn’t sure where it was going. Roger said the board needed to know. Mr. Mencoboni said he could provide the

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contractors name. Roger said he was responsible, so he needed to know where it was going, and again it could not go to the transfer station.

Steve F. said if the board denies the lawn, that brings the applicant back in two weeks and doesn’t do anything for the site. He felt if it went to the CEO, perhaps it would move forward. Roland L. did not think waiting two more weeks was an issue, there is a silt fence up at this time to mitigate runoff. He would like to see the applicant do some leg work and come up with a plan to present to the board, and have the DEP Permit by Rule. Mr. Mencoboni asked CEO Demers if he received the permit. CEO Demers stated that he usually did, but did not have it at this time.

Roger A. stated that the board could table it in order to get a landscaping plan, along with where the concrete being removed is going to go, and how that area will be addressed. He said also what the size would be for the new deck, as well as the wall. Ann H. asked Mr. Mencoboni if he already had a contractor for the project? Mr. Mencoboni stated that he did. Ann stated that the contractor could come to the next meeting to answer questions if it would be easier. Mr. Mencoboni said it would be. Maggie M. stated that he might want to contact York County Soils because they did a lot around the lake. Roland L. stated again that they were located in Springvale. Roger said behind the Springvale Courthouse in the old Nason Library.

Roland L. asked if there was any recourse for the contractor that deposited the material without certification? Ann H. did not think the Town could do anything. Mr. Mencoboni thought it would have to be in civil court. Roland stated, “I cannot believe in this day and age, with all the attention put on water quality, whether you are from Maine, New Hampshire, Massachusetts, Connecticut, wherever; everyone is concerned with what happens in the water. I can’t believe that as an applicant that you or the contractor didn’t realize the impact that that activity was going to have on that body of water without seeking out some advice or getting approval”. Mr. Mencoboni stated, “It never occurred to me, that just simply putting a lawn in, would be such a disruption. It never ever occurred to me”. Roland stated that 42 yards of loam is a big pile of loam. Mr. Mencoboni stated, “I absolutely never considered putting a lawn in, actually I was thinking I was helping the water because the lawn was in such bad shape. I understand now what is going on, but no, I never really understood”.

Roger A. said the sad part was that the contractor that he hired, without being DEP certified was just fleecing Mr. Mencoboni. Ann H. said it does happen to lots of people.

Roger A. asked if there was a motion to table?

Maggie M. made the motion to table the application until additional information, as stated, can be provided to the board. Ann H. seconded the motion. All members were in favor. By a vote of 5 – 0, the motion passed unanimously.

Roger A. stated the information required is as follows:

1) Provide a landscaping plan for the site which includes erosion control measures.

2) Provide a copy of the MDEP Permit by Rule along with any comments.

3) Provide a plan for the removal of the debris on site.

4) Provide a plan showing the proposed wall and deck replacement, which is to include the location and size removed and how it will be replaced.

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Roger A. asked Mr. Mencoboni to contact Barbara F. when he had the information so he could be placed back on the agenda. It was noted the next meeting is Tuesday, September 10th at 7:30 pm.

Nothing more was discussed.

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Conditional Use Permit – Replace Existing Retaining Wall & Add Riprap to Slope – Map 27, Lot 20 (30 Point Road) – Craig Burgess, PE, Representing; Gerard Landry, Applicant & Co-Trustee of the Property

Mr. Burgess and Mr. Landry were present for the review of the application. Board members did a site inspection prior to this evenings meeting.

Previously provided along with the application, was an email dated June 11, 2019, which stated that Mr. Burgess had permission to act on behalf of L. Gerard Landry, trustee of the Percy M. Cunningham Jr. Trust, owner of 30 Point Road, Shapleigh, regarding the wall replacement project; a site location map depicting the location of the project; a plan entitled ‘Site Exhibit, 30 Point Road Site’, which depicted the house, two decks and stairs, along with the location of Point Road; and a copy of the Warranty Deed showing Cynthia L. Cunningham, L. Gerard Landry, and Becky A. Landry, as Successor Co-Trustees of the Percy M. Cunningham, Jr. Trust dated as recorded at the YCRD on 12/26/2018.

Also provided was a set of engineered plans, entitled ‘30 Point Road Shoreline Improvements’ which contained the following pages: Cover Sheet, drafted by Craig A. Burgess, PE #12638, dated 6/7/2019, which listed the table of contents and depicted the existing structures and vegetation located at 30 Point Road; Existing Conditions Plan, drafted by Jacob I. Bartlett, PLS #2513, dated 2/25/2019, which depicted survey pipes found, the existing structures on site, driveway, vegetation, elevation contours, location of Point Road, Mousam Lake and abutting properties, and ‘apparent location of tire retaining wall, unable to verify extent due to snow cover’; Site & Grading Plan, drafted by Craig A. Burgess, PE #12638, dated 6/7/2019 which depicts the existing structures, vegetation, Point Road, boundary lines, property line at high water line, which trees will be removed or protected, erosion control measures and where they will be located, the location of the structures to be replaced which includes a deck, stairs, and wall, and the addition of riprap; Erosion Control & Sediment Control Notes, drafted by Craig A. Burgess, PE #12638, dated 6/7/2019; and the Erosion & Sediment Control Details, also drafted by Craig A. Burgess, PE #12638, dated 6/7/2019. Both Craig Burgess and Jacob Bartlett are from Sebago Technics, in South Portland, Maine.

The detailed project description reads in part, as follows:

The enclosed Conditional Use Permit application is for shoreline stabilization along Mousam Lake at 30 Point Road. Over the years, an existing retaining wall made of old tires and sideslopes immediately adjacent to Mousam Lake has experienced erosion. Without proper stabilization, the existing wall will likely fail and the sideslopes will continue to erode.

Shoreline stabilization work at 30 Point Road will involve replacement of the existing retaining wall and approximately 26 linear feet of riprapped slope to prevent additional erosion and to provide long-term protection of existing developed areas. Other improvements include extending the wall an additional 3 feet, replacement of stairs and wood deck, replacement of existing gravel

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with stone pavers and removal of two trees with significant root exposure. Construction during the offseason is ideal, and the applicant is hopeful to complete the project sometime between September and November of 2019.

Project impacts to Mousam Lake natural resource buffer will be reviewed concurrently by Maine Department of Environmental Protection under an individual Natural Resources Protection Act Permit and the Army Corps of Engineers. Both applications were filed on June 11, 2019.

This evening, provided by the applicant was a memorandum from Craig Burgess, PE, of Sebago Technics, dated August 20, 2019, to Jennifer McGill, Project Mgr., of the Maine DEP. The memo read in part as follows:

On behalf of our client, Gerard Landry, we are resubmitting Site Plans for shoreline stabilization along Mousam Lake at 30 Point Road in Shapleigh, Maine. Changes to the plans include:

• Replacement of the wall to match existing height and length. Lengthening of the wall is no longer proposed.

• Stairway will be replaced to include level landing areas and a bend to better match existing conditions.

• No changes to the wood deck at top of slope are proposed.

• Expansion of the riprap slope in areas previously depicted as stabilized with a lengthened retaining wall.

• Combination of flat stepping stones and gravel along immediate shoreline at bottom of slope. Patio stones are no longer proposed.

Level platforms will be constructed for the contractor to stage and perform work for demolition and grading improvements. Construction vehicles including a tracked skid steer, mini excavator, and likely a larger 12 metric ton excavator will be used to perform work along the shoreline. Basic excavation will be performed to construct the footer (crushed stone base) for the retaining wall. Construction will start from the lowermost point of the project along the immediate shoreline, and work up to the top of slope. When there is little room for staging of materials, it may be necessary to truck/haul materials out only to bring them back for backfill and grading. No work will be completed below the high-water elevation. Erosion control measures will be installed in general conformance with the civil plans prior to demolition, grading and other site improvements.

The retaining and stairs will be built to minimum standards set forth by National Concrete Masonry Association (NCMA) for retaining walls and other applicable standards. All walls over three feet or shoreline walls will be professionally engineered.

Also provided this evening was an email from Jeffrey, Kalinich of the Maine DEP, Asst. Shoreland Zoning Coordinator, dated July 25, 2019, which read in part as follows:

The 2 trees that are being requested to be removed do appear to be hazard trees from the photos I have seen. The trees may be removed to ground level. Based on the photos it does not appear replanting is necessary in this instance.

The wooden deck being proposed to be removed and replaced cannot be replaced in the same location. The deck is not a functionally water dependent structure and when greater than 50% of the value of the structure is removed, the entire structure must be moved to meet the structural setback. The existing deck can be maintained and repaired as long as any repairs are to less than 50% of its value.

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The board was also provided with a new set of engineered plans. These plans include: Sheet 1 – Cover Sheet entitled ‘30 Point Road Shoreline Improvements’; Applicant: Gerard Landry, 89 Crest Drive, Somersworth, NH 03878; Engineer / Surveyor / Landscape Architect: Sebago Technics. The cover sheet depicted a surveyed drawing of the site in grey-scale along with existing conditions and improvements;

Sheet 2 – Existing Conditions Plan, drafted by Jacob I. Bartlett, PLS #2513, dated as submitted to MDEP on 6/7/19; Sheet 3 – Site & Grading Plan, drafted by Craig A. Burgess, PE #12638, dated as revised per Town & DEP Comments on 8/19/19 and dated as Created Construction Management Plan & Submitted to Maine DEP on 8/27/19; Sheet 4 – Construction Management Plan, drafted by Craig A. Burgess, PE #12638 dated and revised same as Sheet 3, this Sheet is an addition to the original set of plans. It depicts Construction Management Notes detailing how the project will be completed, along with Landscape Notes giving detail to how all disturbed vegetation will be replaced, and the plan depicts existing trees to be protected, trees and roots to be removed to ground level, location of filter barrier, staging area for riprap of slope and wall, construction work area, and stockpile area for organic layer; Sheet 5 – Erosion & Sediment Control Notes, drafted by Craig A. Burgess, PE #12638, dated and revised same as Sheet 3; Sheet 6 – Erosion & Sediment Control Details, drafted by Craig A. Burgess, PE #12638, dated and revised same as Sheet 3.

Roger A. asked Mr. Burgess to let the board know about the new information provided. Mr. Burgess stated that since the last meeting they have been going back and forth with the MDEP as to what the best way was to build the stairs. He said they are back with the original plan, except in order to build the stairs compliant with the building code, they will have 2 level landings, along with the jog that is there now. Mr. Burgess stated, “We are replacing the stairs that are there now, as well as taking out the steps at the top and replacing those with stairs, and putting a landing at the bottom before the stairs jog again”.

Mr. Burgess stated that they were no longer going to touch the wooden deck, it will remain as is. He said they would continue the riprap slope underneath a portion of the stairs. He noted the DEP letter did classify the two trees as hazard trees, therefore, Mr. Landry wants to remove the two trees that have the roots fully exposed.

Mr. Burgess stated the replacement of the retaining wall will match the exact length and height of the existing wall. He said they were no longer proposing to lengthen the retaining wall. He said they also got rid of the idea of patio stone, and instead will use stepping stones and the existing gravel that is there, and said there is an email from DEP supporting that. The DEP believes adding some natural flat stepping stones will help hold the silt back and help prevent the erosion of the gravel into the lake. Steve F. asked if he was speaking of the flat area? Mr. Burgess stated that yes, the existing flat area that is gravel; adding some stepping stones will help stabilize the gravel.

Mr. Burgess stated that was the scope of the project. He believed they were in compliance with the comments they received at the last review and they were hoping for approval. He said he had a copy of the whole NRPA application to the DEP, and their processing time line is that they have until mid-September. He noted that he has been addressing comments as they come in, and he hoped that the approval is sooner rather than later. He stated that he hoped he could get the approval from the board this evening, so he could present the approval to the Code Enforcement Officer as soon as the DEP approval comes in.

Mr. Burgess did not anticipate the design would change with the DEP comments.

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Roger A. asked if the stumps were staying when the trees are removed? Mr. Burgess stated, “No, they are saying to cut down to the existing grade”. Mr. Landry stated they would be putting riprap to stabilize the soil.

Mr. Burgess said he did question how it was phrased by the DEP and they said it meant ‘to the ground’, so the fully exposed roots are to be cut, they are not going to go further. He said the roots will be cut at ground level. Steve F. stated, “Chain sawing, not excavating”. Mr. Burgess said, “Yup”. Roger A. reviewed § 105-51.1. Hazard Trees, Storm-Damaged Trees, and Dead Tree Removal, as follows:

A. Hazard trees in the Shoreland zone may be removed without a permit after consultation with the Code Enforcement Officer if the following requirements are met:

(1) Within the shoreline buffer, if the removal of a hazard tree results in a cleared opening in the tree canopy greater than two hundred and fifty (250) square feet, replacement with native tree species is required, unless there is new tree growth already present. New tree growth must be as near as practicable to where the hazard tree was removed and be at least two (2) inches in diameter, measured at four and one half (4.5) feet above the ground level. If new growth is not present, then replacement trees shall consist of native species and be at least six (6) feet in height above ground level and no less than (2) inches in diameter. Stumps may not be removed.

Roger A. stated that stumps cannot be removed, the board cannot waive this. CEO Demers stated, “But the roots can be cut”. Roger agreed. CEO Demers said they cannot excavate into the ground. Mr. Landry stated that the DEP recommended they add rip rap into the banking to stop the erosion of the banking. He said the roots in the ground are not stopping the erosion, something has to be added around the root. Roger stated that the root will help hold the rock.

Mr. Burgess said to address some comments from the last meeting regarding construction, as well as the DEP questions, which were similar, he created another plan that is a Construction Management Plan. He said he spoke with Mark Arsenault, the landscape contractor, and the plan is to remove the stairs to bring his equipment down and then to operate his equipment from a certain location to reach over to the wall and add the riprap. He stated there may need to be some staging areas that require some excavation into the existing slope, and there are notes that all excavated material needs to be stockpiled, and then brought back down and put back where it was. He added that any saplings that are removed, they are to be replaced with a 2 inch tree of a similar species and a landscape architect in his office created a list of acceptable native species that would do well in this type of soil and location. He said there is now a Construction Management Plan that was submitted today to the DEP. Mr. Burgess said that he also provided this information in the plans he provided to the board this evening. (Sheet 4 of 6)

Steve F. asked, regarding this plan, if Mr. Burgess expected to hear back from the DEP within the next couple of weeks? Mr. Burgess said, “Yes”. Mr. Burgess said the plan calls for any soil that is removed to be put back, and the area to be as it was before, with the original duff layer / top soil to be placed on top. He said then it will be mulched and planted with similar plant species. Roger A. stated that there will be a silt fence toward the front by the lake. Mr. Burgess stated, “Yes”. Roger said BMP will be maintained. Roger asked if the contractor doing the work was DEP certified. Mr. Burgess stated, “Yes”.

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Roger A. asked when the time frame was for completion? Mr. Burgess stated that once they have DEP approval, they will begin sometime in September. Roger asked when there might be a completion date? Mr. Landry thought late October, early November. He said it was also weather dependent.

Ann H. asked about the deck, if nothing was going to be done. Mr. Burgess stated, “Yes”. Mr. Landry said they were going to just leave it as is.

Roger A. asked if there were any additional comments? Roland L. asked about the landscaping notes, there was diagram of a small tree, and that they would remove all labels and tags. He asked if these were going to be considered replacement trees? He wanted the applicant to know that the ordinance requires

new trees have to be flagged with a ribbon 18 inches long, and it cannot be removed until after they have been inspected by the Code Enforcement Officer §105-4.D(7)(b). Ann H. stated that if they just remember that every tree that they replant, to just flag it. Roland said he just noticed the tree notation, and thanked the applicant for providing ample detail in the plans provided.

Roger A. stated the conditions of approval are as follows:

1) Best Management Practices will be maintained until the project is completed which includes stabilization of the entire area affected. A person licensed in erosion control practices by the MDEP must be on site during the project until the area is stabilized and project is completed.

2) The project, including the revegetation is to be completed by November 15, 2019. If for any reason this date cannot be met, the Code Enforcement Officer (CEO) must be notified.

3) The replacement trees shall have 18 inch ribbons placed on them, so they can be easily seen by the CEO.

4) The Planning Board and CEO will need to have a copy of the MDEP comments regarding the final plan submitted.

5) The tires from the existing wall will be taken out of Shapleigh and disposed of in a licensed waste facility.

Steve F. made the motion to approve the Conditional Use Permit to replace the existing retaining wall, riprap the slope, and replace stairs on Map 27, Lot 20, per the final plans provided, with five conditions. Maggie M. 2nd the motion. All members were in favor. By a vote of 5 – 0, the motion passed unanimously.

Nothing further was discussed.

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The Findings of Facts

1. The owner of Shapleigh Tax Map 27, Lot 20 (30 Point Road), is Percy M. Cunningham, Jr. Trust, with a mailing address of 89 Crest Drive, Somersworth, NH 03878. L. Gerard Landry, Cynthia L. Cunningham, and Becky A. Landry, Successor Co-Trustees, as granted by Warranty Deed dated as recorded at the YCRD on 12/26/2018.

2. The applicant is L. Gerard Landry, mailing address of 89 Crest Drive, Somersworth, NH 03878.

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3. The property itself is located in the Shoreland District and according to the assessor the property contains .17 acres.

4. The application project description reads in part, as follows: Shoreline stabilization work at 30 Point Road will involve replacement of the existing retaining wall and approximately 26 linear feet of riprapped slope to prevent additional erosion and to provide long-term protection of existing

developed areas. Other improvements include extending the wall an additional 3 feet, replacement of stairs and wood deck, replacement of existing gravel with stone pavers and removal of two trees with significant root exposure. Construction during the offseason is ideal, and the applicant is hopeful to complete the project sometime between September and November of 2019.

5. Received was a copy of the site location map, USGS Quadrangle: Mousam Lake, which pointed out the location of 30 Point Road; a plan entitled ‘Site Exhibit, 30 Point Road Site’ which depicted the

existing structures on site which included a house, 2 decks, stairs, and the existing retaining wall; and a plan entitled ‘Disturbance Area Exhibit, 30 Point Road Site’ which detailed the area around the wall to be replaced, depicting trees to be removed and protected, area of disturbance, stairs to be replaced, wall to be replaced, area to have riprap, and deck to be replaced.

6. Received was a set of engineered plans, entitled ‘30 Point Road Shoreline Improvements’ which contained the following pages: Cover Sheet, drafted by Craig A. Burgess, PE #12638, dated 6/7/2019, which listed the table of contents and depicted the existing structures and vegetation located at 30 Point Road; Existing Conditions Plan, drafted by Jacob I. Bartlett, PLS #2513, dated 2/25/2019, which depicted survey pipes found, the existing structures on site, driveway, vegetation, elevation contours, location of Point Road, Mousam Lake and abutting properties, and ‘apparent location of tire retaining wall, unable to verify extent due to snow cover’; Site & Grading Plan, drafted by Craig A. Burgess, PE #12638, dated 6/7/2019 which depicts the existing structures, vegetation, Point Road, boundary lines, property line at high water line, which trees will be removed or protected, erosion control measures and where they will be located, the location of the structures to be replaced which includes a deck, stairs, and wall, and the addition of riprap; Erosion Control & Sediment Control Notes, drafted by Craig A. Burgess, PE #12638, dated 6/7/2019; and the Erosion & Sediment Control Details, also drafted by Craig A. Burgess, PE #12638, dated 6/7/2019. Both Craig Burgess and Jacob Bartlett are from Sebago Technics, in South Portland, Maine.

7. Received was a revised set of engineered plans which was amended to include both the Zoning Ordinance requirements cited by the Planning Board, and MDEP requirements, these plans contain the following pages: Sheet 1 – Cover Sheet entitled ‘30 Point Road Shoreline Improvements’; Applicant: Gerard Landry, 89 Crest Drive, Somersworth, NH 03878; Engineer / Surveyor / Landscape Architect: Sebago Technics. The cover sheet depicted a surveyed drawing of the site in grey-scale along with existing conditions and improvements; Sheet 2 – Existing Conditions Plan, drafted by Jacob I. Bartlett, PLS #2513, dated as submitted to MDEP on 6/7/19; Sheet 3 – Site & Grading Plan, drafted by Craig A. Burgess, PE #12638, dated as revised per Town & DEP Comments on 8/19/19 and dated as Created Construction Management Plan & Submitted to Maine DEP on 8/27/19; Sheet 4 – Construction Management Plan, drafted by Craig A. Burgess, PE #12638 dated and revised same as Sheet 3, this Sheet is an addition to the original set of plans. It depicts Construction Management Notes detailing how the project will be completed, along with Landscape Notes giving detail to how all disturbed vegetation will be replaced, and the plan depicts existing trees to be protected, trees and roots to be removed to ground level, location of filter barrier, staging area for riprap of slope and wall, construction work area, and stockpile area for organic layer; Sheet 5 – Erosion & Sediment Control Notes, drafted by Craig A. Burgess, PE #12638, dated and revised same as Sheet 3; Sheet 6 – Erosion & Sediment Control Details, drafted by Craig A. Burgess, PE #12638, dated and revised same as Sheet 3.

Shapleigh Planning Board Minutes – August 27, 2019 Page 11 of 17

8. Received was a memorandum from Craig Burgess, PE, of Sebago Technics, dated August 20, 2019, to Jennifer McGill, Project Mgr., of the Maine DEP. The memo read in part as follows:

On behalf of our client, Gerard Landry, we are resubmitting Site Plans for shoreline stabilization along Mousam Lake at 30 Point Road in Shapleigh, Maine. Changes to the plans include:

• Replacement of the wall to match existing height and length. Lengthening of the wall is no longer proposed.

• Stairway will be replaced to include level landing areas and a bend to better match existing conditions.

• No changes to the wood deck at top of slope are proposed.

• Expansion of the riprap slope in areas previously depicted as stabilized with a lengthened retaining wall.

• Combination of flat stepping stones and gravel along immediate shoreline at bottom of slope. Patio stones are no longer proposed.

Level platforms will be constructed for the contractor to stage and perform work for demolition and grading improvements. Construction vehicles including a tracked skid steer, mini excavator, and likely a larger 12 metric ton excavator will be used to perform work along the shoreline. Basic excavation will be performed to construct the footer (crushed stone base) for the retaining wall. Construction will start from

the lowermost point of the project along the immediate shoreline, and work up to the top of slope. When there is little room for staging of materials, it may be necessary to truck/haul materials out only to bring them back for backfill and grading. No work will be completed below the high-water elevation. Erosion control measures will be installed in general conformance with the civil plans prior to demolition, grading and other site improvements.

The retaining and stairs will be built to minimum standards set forth by National Concrete Masonry Association (NCMA) for retaining walls and other applicable standards. All walls over three feet or shoreline walls will be professionally engineered.

9. Received was an email from Jeffrey, Kalinich of the Maine DEP, Asst. Shoreland Zoning Coordinator, dated July 25, 2019, which read in part as follows:

The 2 trees that are being requested to be removed do appear to be hazard trees from the photos I have seen. The trees may be removed to ground level. Based on the photos it does not appear replanting is necessary in this instance.

The wooden deck being proposed to be removed and replaced cannot be replaced in the same location. The deck is not a functionally water dependent structure and when greater than 50% of the value of the structure is removed, the entire structure must be moved to meet the structural setback. The existing deck can be maintained and repaired as long as any repairs are to less than 50% of its value.

10. The board reviewed the pertinent sections of the Zoning Ordinance, which included §105-4 ‘Nonconformance’, §105-26 ‘Stormwater runoff’; §105-27 ‘Erosion control’; §105-39 ‘Earth removal and filling for activities other than mineral exploration and extraction’; §105-51.1 ‘Hazard trees, storm-damaged trees, and dead tree removal; §105-73 ‘Conditional uses’, and concurred the application and information as presented met the performance standards, with conditions.

11. A notice was mailed to all abutters within 500 feet of the property on July 10, 2019. Meetings were held on July 9, 2019, July 23, 2019 and August 27, 2019. A site inspection was done on July 23, 2019 by members.

Shapleigh Planning Board Minutes – August 27, 2019 Page 12 of 17

12. The Planning Board unanimously agreed to approve the Conditional Use Permit to replace the existing retaining wall, riprap the slope and replace stairs, per the engineered plans provided by Craig Burgess of Sebago Technics, dated as revised on 8/27/19, on property known as Tax Map 27, Lot 20, with conditions.

13. The conditions of approval are:

1) Best Management Practices will be maintained until the project is completed which includes stabilization of the entire area affected. A person licensed in erosion control practices by the MDEP must be on site during the project until the area is stabilized and project is completed.

2) The project, including the revegetation is to be completed by November 15, 2019. If for any reason this date cannot be met, the Code Enforcement Officer (CEO) must be notified.

3) The replacement trees shall have 18 inch ribbons placed on them, so they can be easily seen by the CEO.

4) The Planning Board and CEO will need to have a copy of the MDEP comments regarding the final plan submitted.

5) The tires from the existing wall will be taken out of Shapleigh and disposed of in a licensed waste facility.

14. Additional requirement:

• A building permit must be obtained from the Code Enforcement Officer, prior to the construction of the new wall.

Motion:

After careful consideration and a review of all material presented to the Board, along with the review of the Zoning Ordinance, a motion was made on Tuesday, August 27, 2019, to approve the Conditional Use Permit to replace the existing retaining wall, riprap the slope and replace stairs, per the engineered plans drafted by Craig Burgess, PE #12638, dated Revised August 27, 2019, on property known as Tax Map 27, Lot 20 with five conditions.

Vote:

By a unanimous vote of 5 – 0, the motion to approve the Conditional Use Permit to replace the existing retaining wall, riprap the slope and replace stairs, per the engineered plans drafted by Craig Burgess, PE #12638, dated Revised August 27, 2019, on property known as Tax Map 27, Lot 20 with five conditions, was accepted.

Decision:

The Conditional Use Permit to replace the existing retaining wall, riprap the slope and replace stairs, per the engineered plans drafted by Craig Burgess, PE #12638, dated Revised August 27, 2019, on property known as Tax Map 27, Lot 20 with five conditions, was approved.

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Shapleigh Planning Board Minutes – August 27, 2019 Page 13 of 17

Conditional Use Permit – Replace Retaining Wall – Map 16, Lot 40 (14 Cattail Loop) – David Levesque, Applicant; William Turgeon, Property Owner

Mr. Levesque was present for the review of the application. Note: Board members did a site inspection prior to this evenings meeting.

Provided along with the application was a sketch plan of the existing wall, which showed the length of the wall to be 24 feet, plus 22 feet, plus 22 feet, plus 10 feet. The plan also had the following notations: Existing Walk to Remain; Concrete Pad to be Replaced; Concrete Wall to be Replaced with Block Wall; a notation for the location of the house and lake; and the notation stating ‘Wall location and dimensions to remain the same as existing wall height – 4.5’ ±’. In addition, provided was the MDEP Permit by Rule, dated 6/11/19 which listed the project description as: Replacement of failing retaining wall, stairs and small pad; provided were pictures of the existing retaining wall.

The Maine DEP Permit by Rule Explanation, also serves as the Planning Board project description which is as follows:

The activity that we are proposing to perform is the replacement of an existing concrete retaining wall that has become a hazard to the home owner. The new wall shall be constructed with precast concrete blocks manufactured by Genest concrete. The new wall is to be located in the same location as the existing and the dimensions are to remain the same. There is also a small concrete landing at the base of the stairs in the wall. This landing is to be replaced with concrete pavers. The landing is to remain the same size and location as the existing. All BMP erosion control practices are to be used during construction of the project. We plan to do the project while the Emery Mills Dam is open and the lake level is at its lowest.

Roger A. opened the discussion by stating that the new wall would be less than four feet. Roger said Best Management Practices would be used throughout the process.

Steve F. stated that the base of the wall was under water, so he wanted to know if they have to do something different to construct it vs a wall that is on dry land. Mr. Levesque stated that if you have a wall that is greater than 4 feet, it has to be engineered and the engineering does not change because of the base. He said the right way to construct it, is to over-excavate. He said typically you have a six inch base block and marry it to 12 inches of crushed stone; so they will excavate 18 inches below the existing grade. He said there will be woven geotextile in the excavation, then the crushed stone, then the base block; the geotextile comes over the base block and ties in and then you stack the wall up from there. He said as the waves come in and out it carries material into the lake, this undermines the base of the wall. He said with the base they create, it is imbedded deeper in and it is protected by the geotextile, so this does not happen. He referenced another wall he had done on 17th street, it was engineered by Steve Grant Engineering, this is how they designed that wall, and he felt this was standard engineering for a lakeshore wall. He stated this was standard practice for him to do it this way.

Mr. Levesque stated that if it were not in the water, they would excavate it out, and add 4 to 6 inches of stone depending on the soil type; in sandy soils the stone is used to level it out. He stated it is the constant wave action that requires the depth and the use of geotextile fabric.

Shapleigh Planning Board Minutes – August 27, 2019 Page 14 of 17

Roger A. asked if the existing footing was coming out? Mr. Levesque stated that it was not, because the failure of the Turgeon wall was not due to the footing. Roger asked if he was going to start at the top of the existing footing? Mr. Levesque stated, no. Roger asked again if the footing was coming out? Mr. Levesque stated that it was, he said he misunderstood him.

Ann H. said when she was walking around the wall, it appeared the dirt was falling down behind the wall. Mr. Levesque stated that it was settling, and the water pushes the wall forward just a little every year. He said the wall is higher than the existing grade, so it is creating a dam, allowing the water to pond and it is a drainage issue. He said that some believe having it higher is better for the lake, maybe it was, but he saw it as a drainage issue in the winter time, and bad for the wall.

Roland L. asked if the wall would be high enough to prevent the water from going over the top of it? Mr. Levesque said, “No”. Roland asked how the water will be addressed? He said he noticed the area where the equipment will be, it is all dirt and roots. Mr. Levesque stated they would be spreading erosion control mulch and there is some stabilizing grass there now. Roland asked if Mr. Levesque thought the grassy area would be disturbed to the point that something needed to be done? Mr. Levesque agreed that the construction process was going to disturb everything. He said the area would be restabilized with what is there now, where there is grass there will be grass, and there will be mulch as well. He did not see any evidence of erosion now, there are no steep inclines.

Roland wanted to know if Mr. Levesque was confident the level of the wall, the work being done behind it, would not create more of a problem in the future. Mr. Levesque did not feel there would be any future issues.

Steve F., looking at the pictures provided, noted that it is a very gradual slope. He said under the Pine trees nothing would grow, just on the sides. He felt any disturbed areas that won’t grow anything, will get mulched when the project is completed. Mr. Levesque stated in the areas that they plant grass, it will be the homeowner’s responsibility that the grass is maintained.

Roger A. asked if the wall was going to be higher than the finished grade? Mr. Levesque stated that it would be even with the finished grade. Roger asked if the cap would be above? Mr. Levesque stated that it would not. He felt that even though some people think they are slowing the water down, and it does, he believed when you create a pond and then it overflows, it deteriorates one spot. He also felt if you let it sheet across the top and you let the water spread out, it was better for the wall.

Steve F. said it appeared to be a fairly flat area that will go back to grass. He said there were trees, and if they maintained mulch in the gravel area, that should deal with where any problem may initiate. Mr. Levesque said the flat grass spot should slow it down.

Ann H. asked if they were using blocks or would it be poured? Mr. Levesque stated they would be using 6” Genest concrete blocks. Ann felt more water would get absorbed by the blocks instead of a poured wall. Steve F. agreed. Mr. Levesque stated that there would be crushed stone and drainage behind the wall, so much of the water goes behind and thru the wall, but some will go over the edge. Steve said looking at the photos of the property, a lot of the water that the applicant will deal with comes from the neighboring site.

Shapleigh Planning Board Minutes – August 27, 2019 Page 15 of 17

Roger A. asked if any shrubs removed would be replaced? Mr. Levesque stated he did not perceive removing anything. Roger asked about the ends. Mr. Levesque asked if there was a certain size, that if removed, it had to be replaced. Roger said there was no size, just if it was a tree. Ann H. stated that she didn’t believe he was going to be doing anything where the fence was, and that is where the trees are. Mr. Levesque asked if they were talking about the chain-link side. Roger said that he was asking about the

other side. Mr. Levesque said he didn’t plan on digging any of those trees out. Roland L. read the definition of a tree, so Mr. Levesque was aware of what he might have to replace. Tree – A woody perennial plant with a well-defined trunk(s) at least two inches in diameter at 4.5 feet above the ground, with a more or less definite crown, and reaching a height of at least 10 feet at maturity. Mr. Levesque thought the DEP was less strict. Roger said that the Town can be more strict.

Roger A. asked about when he expected this to be completed? Mr. Levesque was not sure. Steve F. asked if he was going to do this during the lake draw-down? Mr. Levesque again said he wasn’t sure. Steve said the board needed a date of completion. Roger agreed. Mr. Levesque gave the board a date of January 15, 2020. Steve asked when the grass would be planted? Mr. Levesque said they would do it first thing in the spring. Mr. Levesque stated that he would be comfortable with May 15, 2020 for the planting. Ann H. stated that if he had to change the date of completion, he could let the CEO know.

Roland L. stated that the plan for the dam on Mousam Lake is that the job will be completed by November 27th. The plan calls for the level of the lake to be brought back up to the normal season low before ice-in. He wanted Mr. Levesque to know, so he could plan the project accordingly.

Roger A. asked about the DEP notification, did they have any comments? Mr. Levesque did not have any. Ann H. stated that the DEP was running behind, so they may not have reviewed it yet.

Roger A. stated that a notice to abutters will be mailed, and the board will bring the application back up at the next meeting on Tuesday, September 10th at 7:30 p.m.

Nothing further was discussed.
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Other:

CEO Demers asked about seasonal camps and Growth Permits. He said he met with a person who said he bought a camp as a year-round residence but it needed improvements. When CEO Demers saw the extent of the improvements, he asked if the gentlemen wanted to get a Growth Permit for year round residency. The gentlemen believed it already was a year round residence, but when CEO Demers looked up the records, it was built as a seasonal cottage back in the 1960’s. CEO Demers said he could not find anything in the records showing it was year round. Barbara F. stated that the proof is typically on the landowner if the Town has no record of it.

Steve F. asked, “What if my house on Ross Corner Road was built in the 1960’s without a Growth Permit, just because it’s on the water, is it on posts, is it on foundation, what are we looking at”? CEO Demers stated that the permit specifically said summer residence. Steve said he wanted to be sure we were not targeting waterfront people. CEO Demers stated that if someone built a garage and they have been living

Shapleigh Planning Board Minutes – August 27, 2019 Page 16 of 17

in the garage, if they don’t have a Growth Permit, regardless of where it is, they would have to get a Growth Permit to make it an official apartment and sell it as a year round residence.

Steve F. said again he wanted to be sure the Town wasn’t targeting waterfront. He believed you can have a summer house anywhere. Barbara F. agreed, Growth Permits are not tied in with just waterfront properties. Roger A. said with seasonal conversations a higher percentage tends to be Shoreland.

Roger A. gave another example, such as a duplex. If you built a duplex and did not get a Growth Permit for it and you are trying to sell it as a duplex, you would have to come to the board for a Growth Permit in order to do. CEO Demers agreed. Roland L. asked when Growth Permits were created. Roger thought it was in the late 70’s.

Steve F. thought that if it isn’t specific on the application, the CEO doesn’t have a leg to stand on if it is built prior to enactment. Steve asked CEO Demers if that was what he was asking? CEO Demers stated, “No”. Roger A. stated that he is saying they are coming in for a renovation and it is flagging him that it is a camp that they are trying to make year round. He said it was a camp with all open walls, and now they are going to close it up. CEO Demers agree, that yes, there was no insulation. Roger said they are now going to use it year round.

Barbara F. thought that the Town wants to look at not only insulation but that they have an approved septic system if they are year round. CEO Demers agreed. Ann H. asked what if someone built a house in the late 60’s and they didn’t live it in year round, and it doesn’t say if it is a camp, secondary house or full time, then do you have to have a Growth Permit? CEO Demers said that if it says seasonal, you need a permit. Roland L. asked about assessment purposes, does something change? Roger A. did not think so. Barbara F. thought the value might go up because it is assumed it has greater value because it now has insulation and a septic system, but she said Karla might be the person to ask about that.

Roger A. stated, that was why when people come in for Best Possible Location, he asks them if they plan on living there year round, because if so, it would be a good time to get the Growth Permit at the same time.

Roland L. asked if it was true that the legislature just passed that starting next year Shoreland zoned properties that are sold have to prove they have a working septic system? Roger A. said that yes, the legislature just passed it.

Nothing further was discussed.

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Growth Permits

Map 6, Lot 29-B (103 Owl’s Nest Road) – New Home GP #11-10

This is a newly created lot, which is a combination of a front lot and rear lot, with combined acreage of 5.39 acres ±, and has in excess of 250 feet of road frontage.

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The Planning Board meeting ended at 8:45 p.m.

Shapleigh Planning Board Minutes – August 27, 2019 Page 17 of 17

NOTE: The summer hours are in effect thru October 31st, the meetings now begin at 7:30 p.m. and any scheduled public hearing begins at 7:00 p.m.

The next meeting will be held Tuesday, September 10, 2019 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. 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.

Respectfully submitted,

Barbara Felong, Land Use Secretary

planningboard@shapleigh.net