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Planning Board Minutes for June 11, 2014

SHAPLEIGH PLANNING BOARD

MINUTES

WEDNESDAY, June 11, 2014

Members in attendance: Chairman Roger Allaire, Vice Chairman Maggie Moody, Roland Legere, Diane Srebnick, Alternate Stephen Foglio, as well as Barbara Felong, Land Use Secretary. Code Enforcement Officer Steven McDonough was also in attendance. Madge Baker was unable to attend.

Note: The minutes are not verbatim unless in quotes.

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Public Hearing Began at 7:05 p.m.

Conditional Use Permit – Business Location for Chessie Excavation – Map 7, Lot 1-B-1 (776 Shapleigh Corner Road) – Caleb Chessie, Applicant

Caleb Chessie was present for the public hearing. Board members did a site inspection prior to this evenings meeting.

Roger A. asked Mr. Chessie to explain to the board and audience members what he was proposing to do.

Mr. Chessie stated that he wanted to be able to put a business sign at the end of his property.

Roger A. asked if he was going to run the business from his property? Mr. Chessie stated, “Yes.”

Roger A. asked if there were any questions? Mr. Chessie’s neighbor Maxine Crouch (Map 7, Lot 1B), asked if anything was going to change from what he is doing now? Mr. Chessie stated, “No, there is not going to be any traffic in and out of there. It’s just my trucks going in and out.” Mrs. Crouch asked if there was going to be any runoff, she was concerned with her well which wasn’t far from Mr. Chessie’s property, she didn’t want anything spilled that would affect the water quality. Mr. Chessie said he didn’t see that happening.

Roger A. stated, “The main reason why the Conditional Use Permit is for the business is because he wants a sign. And because he wants a sign it creates the business atmosphere that needs a Conditional Use Permit, strictly for the business which will entitle him to a sign if it gets granted.” Mrs. Crouch had no issue with the sign, she believed it would sit back far enough not to interfere with her being able to see to get out of her driveway. Roger agreed.

Roger A. stated that he paced the site distance while at the site inspection and the line of site is approximately 315 feet which is the minimum allowed. Roger noted the board wouldn’t deny his application for only having the minimum.

Roger A. stated, “The only other question I asked Caleb on site was whether or not he was going to be storing materials on site, any loam or sand piles, depending on jobs. He said no, the only piles there were what he had stripped off the property.”

Mrs. Crouch asked if these piles would interfere with her well? Roger A. stated they should not. Roger said, “At the last meeting we asked him about the oils and he said he sends it out to a person who burns it in an oil burning furnace.” Mrs. Crouch asked, “So he isn’t storing it?” Mr. Chessie stated, “No, I don’t store it.” Roger agreed it was a concern. Mrs. Crouch stated again her well wasn’t far from Mr. Chessie’s cleared driveway and she noted it was wetland in that area.

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Diane S. asked if Mr. Chessie had a more detailed drawing as requested at the last meeting. Mr. Chessie

provided a sketch that depicted two areas for parking equipment, the size of the house and shop, septic system location, an employee parking area being 30’ x 30’ in size, the size of the lot and the approximate location of where a sign would be placed.

Roger A. stated that Mr. Chessie had planted a row of evergreens approximately 75 feet back from the road which would create a sound and site buffer once they get larger.

Roger A. asked what the hours of operation would be? Mr. Chessie stated 7:00 a.m. to 7:00 p.m., 7 days a week. Roger noted that snowplowing would be anytime within a 24 hour period, 7 days a week.

Roger A. asked if there were any additional questions? There were none. The public hearing closed at 7:12 p.m.

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Planning Board meeting began at 7:30 p.m.

The minutes from Tuesday, May 27, 2014, were accepted as read.

Stephen F. sat in as a regular member this evening, as Madge B. was unable to attend.

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Roger A. began by starting with New Business as the initial review would not take long.

Conditional Use Permit – Moving Gravel in Excess of 150 Yards – Map 7, 33A (Shapleigh Corner Road) – Maggie Moody, Applicant

Conditional Use Permit – Moving Gravel in Excess of 150 Yards – Map 7, Lot 32 (1081 Shapleigh Corner Road – Town of Shapleigh, Applicant

Roger A. asked Maggie M. to explain the movement of greater than 150 yards of gravel. Barbara F. stated that Road Commissioner John Burnell was here this evening to represent both the Town of Shapleigh and Maggie.

RC Burnell stated that in 2006 when the Town decided to move the sand and salt building the stipulation was that when the Town left the site, the Town would put in a barrier or berm between the two lots. He stated this would be approximately 250 yards of earth moving. He said it would also create a visible property line between the town property and Maggie’s but in doing so, it would create a slope within 10 yards of the property line. (RC Burnell was referring to §105-39.G(11)

Roger A. asked how the earth would be stabilized to prevent erosion? RC Burnell stated that they could use mulch or loam and he noted that on the top of the berm would be evergreen trees. He also said there would be a large rock placed to stop ATV traffic.

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

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Roger A. stated a Public Hearing will be held on Tuesday, June 24th, and a Notice to Abutters will be mailed as well. Maggie asked if there would be a site walk? Board members agreed to a site inspection at 6:30 p.m. on the 24th and Roger noted the Public Hearing would begin at 7:00 p.m.

Nothing further was discussed.

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Best Possible Location – New Foundation under Structure and Expansion – Map 22, Lot 13-4 (67 Kato’s Nose) – Paul & Connie Clark, Applicants

Mr. and Mrs. Clark were present for the review of the application.

The applicants provided prior to the initial review of the application, a copy of the deed, dated as recorded on May 19 1978; a copy of the Permit by Rule, dated accepted by MDEP on May 5, 2014; and a plan entitled ‘Site Plan and Proposed Building Calculations Made for Paul L. & Connie D. Clark’ which depicts the existing structure and proposed structure(s) in relation to the closest side lot line, 100 foot high water mark and the distance from the point of the structure closest to the edge of the lake, that being 61.4 feet. Also on the site plan was the area & volume calculation which showed the proposed increase in volume to be 28% and the increase in area to be 3%, noting that most of the additional structures are beyond the 100 foot mark. In addition, a copy of the Subsurface Wastewater Disposal Application, done by Marc Hampton, SE #263, dated 4/24/14, for a four bedroom home, was provided.

During the meeting on May 27, 2014, Roger A. stated that the only thing needed by the board was the trees to be placed on the plan and the replanting schedule. CEO McDonough had also asked that the applicants state on the plan how much fill would be moved and where the soil would go, along with the re-vegetation plan. The board agreed to this requirement.

Mr. Clark provided the board members with a copy of a plan showing the trees to be removed – which totaled 16, and the trees to be planted – 3 within 100 feet of the high water mark. It was also noted on the plan that the number of trees being removed were approximately 4.25% of the total trees on site.

Mr. Clark stated that after shooting grades on the property, it was determined there would be no fill removed from the property. He said the removed material would be used to backfill the new foundation.

Roger A. stated that it was determined at the site inspection on Tuesday, May 27th that the best location for the structure was where it sat at this time. Mr. Clark stated the proposed location of the garage was the only location, due to the topography, that would work for the garage. Roger agreed.

Roger A. asked how the land against the garage, going into the slope, would be addressed? Mr. Clark thought he would have to bring in fill to grade off part of the area. He said the grade of the floor would be quite high up the banking, so he wouldn’t have a lot of fill to use to backfill, and again stated he would have to bring some fill in. Roger agreed and asked how the backfill would be stabilized. Mr. Clark said he would be planting bushes around the foundation. Diane S. asked Mr. Clark to draw on the plan where the bushes would be located so CEO McDonough would have a final plan to follow. Mr. Clark drew an area along two sides of the home where bushes would be planted.

Roger A. read §105-4.D(7)(1), Trees, woody vegetation and ground cover for the relocation of a non-conforming structure. Roger noted there were only two trees being removed and they would be replaced by three trees closer to the water, therefore, the requirements of this section would be met. Roger also noted that he asked the applicants about other vegetation that would be removed, as it was part of the ordinance. Roger also read §105-4.D(7)(2) which included the fact that all approved plans shall require confirmation in

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writing by a licensed surveyor that the placement of the structure is correct per the specifications approved by the Planning Board.

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

Diane S. made the motion to approve the Best Possible Location on Map 22, Lot 13-4, per the Plan provided, entitled ‘Site Plan and Proposed Building Calculations Made for Paul L. & Connie D. Clark, drafted by Dana Libby, PLS #1350, of Corner Post Land Surveyors, Inc., of Springvale, Maine, dated 4/28/2014, along with the revised planting plan presented this evening. Maggie M. 2nd the motion. All members were in favor. Members voted for approval, 5 – 0. The motion passed unanimously.

Nothing further was discussed.

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Conditional Use Permit – Business Location for Chessie Excavation – Map 7, Lot 1-B-1 (776 Shapleigh Corner Road) – Caleb Chessie, Applicant

Mr. Chessie was present for the review of his application.

Roger A. began by stating that for a residential dwelling and business a minimum of 4 acres would be required. He stated the business needed two, and the residential dwelling needed two. CEO McDonough asked Mr. Chessie if he had 6 acres? Mr. Chessie stated that he had three. Roger stated that Mr. Chessie could deal with that later. CEO McDonough asked what he was talking about with respect to dealing with it later. Roger stated that Mr. Chessie wasn’t before the board to deal with a residential dwelling. CEO McDonough stated that Mr. Chessie already had an open permit for a residential dwelling. CEO McDonough asked Mr. Chessie if he wanted to convert the residential structure to a business structure only? Mr. Chessie stated that he wanted to do both. CEO McDonough stated that that was a problem, he thought Mr. Chessie had six acres.

CEO McDonough stated Mr. Chessie would also need 400 feet of road frontage for both the business and residence. Mr. Chessie had only 200 feet of road frontage. CEO McDonough stated that he could do one or the other, and asked Mr. Chessie which did he wanted to do? He stated Mr. Chessie could convert to commercial only if he wanted to but noted if he converted it, he could not live there.

Roger A. asked him if he wanted to table it until he made a decision? Mr. Chessie decided to table it until the next meeting.

Nothing further was discussed.

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Conditional Use Permit – Replace Paver Patio with Pressure Treated Deck – Map 34, Lot 28 (12 Cherry Road) – Shawn Woods, Applicant; Diane Vetrano, Property Owner

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

During the meeting on Tuesday, May 27th, the applicant provided the Planning Board with a picture of the existing home showing the concrete patio; a sketch plan depicting the patio is 62 feet from the high water mark and the existing camp is 70 feet to the high water mark on one side and 78 feet to the high water mark on the other; a diagram of the size of the existing patio showing the exact dimensions along with the fact it is

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201.75 square feet in size; a diagram showing the existing home, landing, and patio dimensions which total 2321 square feet and a notation that 30% expansion of 696.3 square feet is to be constructed; a diagram of the house, patio and proposed new deck footprint which would be 240 square feet in size; along with an email from Diane Vetrano and Al Halliday stating Mr. Woods is authorized to act on their behalf.

This evening Mr. Woods provided a new plan proposing a larger deck, that being 12’ x 28’ in length, along with the new calculations which showed the proposed deck would use 406 square feet of the 416 square feet allowed for a 30% expansion.

Roger A. stated the board members did a site inspection this evening. Mr. Woods stated that the new plan was going from 20 feet in length to 28 feet in length. Barbara asked how this affected his 30% expansion? Mr. Woods stated that he originally was around 10% and now is at 22%. He noted that he had done a clerical error in the original calculations.

CEO McDonough looked at the plan and knew the house. CEO McDonough asked why Mr. Woods was before the Planning Board? Mr. Woods explained that he was expanding a non-conforming structure. CEO McDonough asked if he was expanding the foundation? Mr. Woods stated that because he was expanding a non-conforming structure he thought he was supposed to come to the Planning Board. CEO McDonough stated, “Only when you have anything to do with the foundation. He said because he isn’t getting anymore non-conforming, this will only require a permit from me.” After further discussion with Roger and CEO McDonough it was agreed this would require a permit from the CEO only.

Nothing further was discussed.

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Amendment to a Subdivision – Reduce the Size of the Cistern for Fire Protection to Accommodate One Lot Instead of Two – Map 10, Lot 2-2-3 (White Pine Lane) – Louis Nieto, Applicant

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

Roger A. began by stating at the last meeting, on May 27th, there was discussion about getting language for the easement for the Town to access the cistern but it was already on the plan. Mr. Nieto stated he met with his attorney, as there was concern over maintenance of the cistern and whether it had to be in the deed. Attorney Lenkowski stated that the best course of action was to mention the cistern on the plan because the plan gets recorded. Mr. Nieto stated he had Dana Libby of Corner Post Land Surveying, Inc. revise the plan entitled ‘Plan Showing A Revision to Subdivision Plan Book 364 Page 44, Great Hollow Acres Lot #2 By Louis Nieto’.

Mr. Nieto stated the changes were located under Notes: 5. This section reads as follows:

Amendment to “Great Hollow Acres Subdivision” Lot 2-2-3 (owned by Louis Nieto, Jr.) change fire protection system from 7,500 gallon cistern for two dwellings to 5,000 gallon cistern for one dwelling. This cistern will not be considered fire protection for Lot 2-2-1. This revises Plan Book 364 Page 44, approved December 10, 2013.

I find the proposed change from 7,500 gallon cistern to 5,000 gallon cistern executable as fire protection for Lot 2-2-3 only. This cistern will not be considered fire protection for Lot 2-2-1. This maintenance of the cistern will be the responsibility of the owner of Lot 2-2-3.

Shapleigh Fire Chief, Duane Roman, dated 6/11/14

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Diane S. asked if the property owner on Lot 2-2-1 built their house? Mr. Nieto stated, “No, it is under construction.” She asked if they had to put sprinklers in? Mr. Nieto stated that they either needed a sprinkler system or would have to put in their own cistern. They were having issues with available funds he was told.

Mr. Nieto stated that he spoke with Fire Chief Romano about how he wanted to have the cistern installed and when he wants to inspect the project such as when it is being backfilled. He said he had to notify the Fire Chief when he was ready for him to look at it.

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

Maggie M. made the motion to approve the Amendment to the Subdivision per the plan provided entitled ‘Plan Showing A Revision to Subdivision Plan Book 364 Page 44, Great Hollow Acres Lot #2 By Louis Nieto’ to reduce the size of the cistern from 7,500 gallons to 5,000 gallons. Diane S. 2nd the motion. All members were in favor. All members were in favor. Members voted for approval, 5 – 0. The motion passed unanimously.

The applicant has 90 days to have the approved plan recorded at York County Registry of Deeds and returned to the Planning Board or the plan shall become null and void, unless an extension is granted by the Board in writing.

Nothing further was discussed.

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Amendment to a Best Possible Location – Change the Size of the Approved Structure and It’s Location – Map 27, Lot 13 (130 17th Street) – William Plante, Applicant

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

Mr. Plante presented a plan to the board on Tuesday, May 27th to change the approved location of the structure, along with the size of the structure from 26’ x 36’ to 28’ x 36’. The original site approval was as follows:

The motion was made to approve the After-the-Fact Conditional Use Permit for earth moving in the Shoreland District in order to build a driveway and the Best Possible Location to replace the existing camp along with a 30% expansion on Map 27, Lot 13 per the plans provided by Joseph Stanley of LinePro Land Surveyors, dated August 13, 2013 and York County Soils and Water Conservation District with the following conditions:

1) Phase One of the project which includes the removal of the existing camp; re-stabilization of that area along with the revegetation of the existing driveway that connects the property to 17th Street; and the planting of a minimum of two trees to close the entrance onto 17th Street per the plans provided shall be completed by October 15, 2013.

2) Phase Two of the project which includes the new structure with expansion, and paving of the driveway, shall be re-stabilized per the plans provided and completed by July 15, 2014.

3) All debris shall be taken out of Shapleigh.

4) Mr. Plante shall demonstrate to the Code Enforcement Officer that he is certified in Shoreland erosion control measures.

5) The lot line adjustment shall be completed as shown on the plan provided by way of a new deed drafted and recorded at the York County Registry of Deeds. A copy of the deed along with the book and page shall be provided to the Planning Board for the record as soon as possible.

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Roger A. began by stating the board members did a site inspection this evening to see where the relocation of the structure would be.

Roger A. asked Barbara F. if Mr. Plante paid his application fee? Barbara stated, “Yes.” (Mr. Plante had not filled out an application or provided a fee to the board at the initial review on May 27th so she requested both from Mr. Plante after the meeting.)

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

The board reviewed the new plan. Roger A. noted by changing the location of the new structure it pulled it back from the embankment by a few feet. Roland L. asked what the dimensional change was? Mr. Plante stated, “I was asking for two feet wider. Instead of 26’ x 36’, 28’ x 36’.”

Stephen F. asked if there was an issue with expansion? Roger A. stated, no, because part of the structure will be relocated beyond the 100 foot setback to the water. Roger, noting the 100’ mark on the drawing stated, “If anything on the 30%, you are more inside the Shoreland zone than you are out.” Mr. Plante said, “Yes, I believe I can have, at 28 feet wide, I can have 22 feet in front of the 100 foot mark. If I go 26 feet, I can go 24 feet forward. It’s a two foot difference closer to the water.” Roger said, “Per the plan, what ends up happening, is you have more square footage inside the Shoreland than you do outside the 100 feet.” Mr. Plante said, “I can only have a certain amount of square footage.”

CEO McDonough asked, “When you say Shoreland, do you mean the 100 foot mark?” Roger said, “Yes, the 100 foot mark.” CEO McDonough stated, “It seems to me that if you can push this structure back into that banking, then you can move the whole thing back.” Mr. Plante stated that he could have 624 feet in front of the 100 foot mark. He said, “If it’s 26 feet wide than I can have 24 feet in front of it and if it goes to 28 feet wide, I can only have 22 feet.” CEO McDonough stated, “The thing is, this is Best Practical Location. 30% expansion is not a right.” Roger said, “Right.”

Diane S. stated, “I would just like to say that I have been approached by several people making comments about this location and what is going on there. I know Roland said he had some people approach him too about what is going on there. Maggie said she did.” Mr. Plante stated, “I have no problem leaving it where you guys gave me permission and I’ll dig into the banking some more, that’s not a problem.” Diane said, “One person that made a comment to me actually asked if there was a gravel pit going in.” Mr. Plante said, “There is going to be if you guys…” CEO McDonough asked Mr. Plante, “Is that a threat? It sounded like a threat to me.” Mr. Plante said, “It’s not a threat, if you guys want me to dig more dirt out I would be glad to. I tried to dig less dirt by turning the camp a teeny bit.”

Diane S. stated, “I would like to read 105-2 to refresh everyone’s memory. The purpose of this chapter is to further the maintenance of the safe and healthful conditions and the general welfare, prevent and control water pollution, protect spawning grounds, fish, aquatic life, bird and other wildlife habitat, control building sites, placement of structures and land uses and conserve shore cover, visual as well as actual points of access to inland and coastal waters and natural beauty, and to encourage the preservation of farmland. That is the purpose of the Planning Board.” Diane said, “I think the key words in that were control building sites and placement of structures and land uses and conserve shore cover. We can move it anywhere we want again, if we desire to.”

Mr. Plante stated, “So basically you can either let me turn it where I would like to or you can leave it where you guys already gave me permission. It is your call.” Diane S. stated, “Or we can make you fill it in and move somewhere else.” Mr. Plante stated, “I’m already approved for where it’s at right now, I don’t have a problem leaving it there if it’s a big problem with you guys.”

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Roger A. stated, “In controlling the building sites and protection of the spawning grounds, fish and aquatic life, bird and other wildlife habitat and control water pollution, I believe by pushing it back from where the original camp was and now going back to 76 feet, it is meeting that criteria. I would not have an issue with that. Now whether or not we actually take and allow the turning of it, I don’t have an issue with turning that

camp. I think it’s not for the aesthetics for looking out across the lake, really it isn’t. By turning it that way he doesn’t have as good a view as what he did before. He is actually hindering himself. But we don’t care about that, this is where he would like it. And most all other proposals we have had before us, we have tried to take a look at the land, and we have also looked at where the person, no matter who it was, where they would like to set it on their property and kind of went along with them, providing it isn’t creating a big issue with soil and erosion control or creating a lot of runoff into the lake. In this location for what has been done on the location, it has been well upgraded, the bark mulch is there, it slowed down the banking’s, the banking’s have been stabilized except where they are digging today. The rest is all stabilized. It is neat and clean.”

Diane S. stated, “There is no tree canopy on that lot anymore, there used to be, but not anymore.” Roger A. stated, “Right there’s a lot of trees that have been removed.” Diane S. said, “So we have to have a good tree planting plan in place and I think Roger, at this point, the size of the foundation and the way the hill goes, I think we need an engineered plan. That’s a very high foundation, 12 feet high.” Roger said, “10.” Mr. Plante stated, “It could be as low as 10 and we don’t need an engineered foundation.” Diane stated, “We need an engineered plan for a wall that is over four feet high. I just think it is a very steep slope and I would feel more comfortable with an engineered plan. That’s just my opinion.” Roger A. stated, “With respect to the foundation that is all going to come under the IBC (International Building Code) for the height, width and pressure up against it.” Diane stated, “Well I would feel more comfortable but I can’t speak for anyone else.”

Mr. Plante stated, “You asked for a topo one time and you didn’t even know what you were looking at.” CEO McDonough stated, “Nice.” Mr. Plante stated, “It is nice, it’s the absolute truth. You asked me for a topo, put it right in front of her, and she didn’t even know what she was looking at.” CEO McDonough stated, “Bill, insulting the board isn’t going to help you.” Mr. Plante stated, “I don’t care, I really don’t.”

CEO McDonough stated, “You gave us new information tonight that there is an attached garage going further back into the banking, how can you say, ‘this structure can’t go back any further’?” Mr. Plante stated, “I didn’t ask for a garage tonight, I told you that was a proposed thing and it’s beyond the 100 foot mark, so it has nothing to do with that.” CEO McDonough stated, “I understand that, but they know it.” Because the tone of the discussion was getting heated Diane S. asked for everyone to tone it down as she was sick of heated discussions with the applicant. Mr. Plante stated, “You are asking for things that you don’t know what you are asking for.” Diane S. quietly stated, “You can’t speak for what I do and do not know.” Mr. Plante stated, “When you looked at the plan, the way you were looking at it, it told me you didn’t know what you were looking at.” Diane stated she was tired of being disrespected.

Roger A. stated, “At this time we are looking at the amendment, this is what we have before us. The hole has been already dug out, it needs a little more work if he goes with what has been approved. Or it needs more cleaning if he sets the foundation where he would like to have it tonight. That is the only difference.”

Diane S. stated, “In response to Mr. Plante’s comment with respect to me, I didn’t think the driveway would work the first time he came before us and he did. Then he came back and said it couldn’t work.”

Roland L. stated that after the site visit and seeing the existing hole and the staked out area where it was previously approved, it did appear that the new proposal was going to cut into the bank less. He said it appeared to be an improvement over the original plan. He said he was not going to speak in opposition to

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the new plan. He noted that the question that did come up was the whole issue of the number of feet above the foundation of the existing. Roland asked if that was a relevant point at this time?

Roger A. stated that with respect to the 3 foot increase in height, that would be CEO McDonough’s determination. Roger said if it was greater than 3 feet then it counts as square footage for the 30%. Roland L. asked if that referred to whatever part is above the 3 feet? Roger A. read §105-4.D(3)(b) ‘Foundations’, “If the completed foundation does not extend beyond the exterior dimensions of the structure, except for the expansion in conformity with Subsection D(1) above, and the foundation does not cause the structure to be elevated by more than three additional feet, as measured from the uphill side of the structure (from original ground level to the bottom of the first floor sill), it shall not be considered to be an expansion of the structure.”

Roland L. asked, “That part of the ordinance applies where the structure is considerably further back than it was originally?” Roger A. stated, “Right.” CEO McDonough stated, “He gets three additional feet.” Stephen F. asked Mr. Plante if he knew where he was at? Mr. Plante stated, “We are above that for sure. If you are not counting the cellar, if you are counting the first floor, we are way above that. Absolutely.”

CEO McDonough stated, “Bill you don’t understand. You can take a structure and move it way up hill and still be at the same elevation mark. The problem is you don’t know what the previous elevation was. So we are going to have to guess.” Mr. Plante stated, “Pick any elevation you want, it’s not a problem with me at all. I am in an approved location and if they let me spin it a little bit that is fine. What’s on paper and what is on the ground is so far apart.” CEO McDonough asked Mr. Plante if he wanted him to explain the rule to him? Mr. McDonough using a quick sketch explained to Mr. Plante how the elevation was not the factor but the height of both structures from the top of the foundation. Mr. Plante appeared to understand the explanation and stated he was well within the three feet allowed, he thought he might be below what was originally there, so elevation should not be a problem. CEO McDonough stated that because an elevation was not shot before the old camp was removed, they will have to use pictures to determine the original height of the camp. Mr. Plante stated he would work with CEO McDonough on this.

Roger A. asked if there was a motion on this application? Roland L. asked if the change in the height of foundation was a change in the amendment as well or does it not apply? Roger stated, “It won’t change because what will happen is there is a difference in height then Steve will have to be dealing with that as far as the height because the actual placement is going to stay the same. It will just be whether it goes down any.” Roland said, “I see, ok.”

Mike Morse of the MDEP asked if there was an opportunity for public comment? Roger A. stated that someone could speak.

Mr. Morse introduced himself as the Assistant Shoreland Zoning Coordinator for the Maine DEP in the Portland office. He said he had been in the position for approximately 12 years and works primarily with municipal officials in helping them properly manage and enforce Shoreland zoning through the local ordinance which is based on State minimum requirements.

Mr. Morse stated, “Steve and I were looking at some sites a few weeks ago and this project came up in the conversation and we talked about it a little bit, so I said ‘when is the Planning Board going to be hearing this’ and kind of invited myself along. The reason I asked about coming to hear more about this project, is I think there might have been an error in how this greatest practical extent approval came about in the first place, the original approval. I am not here tonight to ask you to go back and revoke that, I think we are probably beyond the time frame, for that to apply. For the sake of my comments tonight, unless the board chooses otherwise, it’s not the department’s request that the board do anything different with that original approval.”

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Mr. Morse stated, “The concern that the DEP would have with this amendment is, and I think Steve alluded to it earlier, is the fact that the applicant has clearly said ‘hey I want to make it even bigger than what I have approval for…..and in order to still comply with the 30% expansion provision within 100 feet, I am willing

to move it back further’. It kind of flies in the face of what the Planning Board was reviewing in the first place, which is greatest practical extent. And I think we may have even opened the door for the Planning Board to go back and look at this greatest practical extent review.”

Mr. Morse stated that he was going to get back to the original approval for the boards educational benefit and for the applicant to see if he wants to continue because it might make a difference.

Mr. Morse stated, “Picture a non-conforming structure being this size, whatever dimensions this is, it’s in the original location and he decides to tear it down and the Planning Board has to consider relocation at the greatest practical extent.” Mr. Morse stated that the board had to consider the original structure, not the original structure plus something else. He said, we have to consider ‘only’ the size of the original structure and how far back that can be located. He believed that the issue with the DEP and CEO McDonough is that the original footprint and size of the structure wasn’t really considered to the greatest practical extent, it was that plus an expanded structure. He said it is not how the language reads and it is pretty clear how the language reads. He wanted to point that out.

Mr. Morse stated, “We are not going to go back on what the original approval was by the Planning Board except we may be notifying the Planning Board sometime in writing that we are aware of this error, here is how to properly apply this, and we respectfully request that you continue to apply the language appropriately in future projects. But don’t revoke what you have already done.” He said legally, he believed the Planning Board had the right to say that’s off the table now, you can keep what you have or if you want to do something different we are going to start all over again, but this time we are going to do it right. We are going to follow what the town’s ordinance says and we are going to go by where the original structure was and it would probably be a worse scenario for the applicant. He wanted the board aware, but also two wrongs do not make a right. He said you can’t take an error and expound on it any further. He said that was the message for this application.

Roland L. asked, “As in this situation, when you are straddling the 100 foot mark, that seems to be for me the gray area because I had the impression or it was my understanding that beyond the 100 foot mark there is almost unlimited potential.” Mr. Morse said, “Yes, the issue here is with greatest practical extent is not to send them two miles back from the lake, or 300 feet, this applies to that area within 100 feet from the lake, 75 feet in certain areas in the wetlands, etc. You are absolutely correct and I wasn’t involved in the original process, so I’m not trying to be overly critical but what I’m seeing now with the large driveway now and the land back there, potentially the original structure with the greatest practical extent review may have very well gone fully beyond the 100 feet.” He said, “Had that occurred he may not have been tied to the 30%.”

Mr. Plante said, “What Steve didn’t tell you is when I came for approval I owned one piece of property and that is where we put it. Since then I bought another 2 acres of land and that’s how the driveway came in on that piece of land. Obviously he is not telling you the whole story of how it started.” Mr. Morse stated, “This is reviewing the Town’s records as well.” Mr. Plante said originally this was the best spot.

Mr. Morse stated that Mr. Plante brought up a point in that you only look at the greatest practical extent on the parcel the structure is located on. If it is separated by a road, or if there is a separate parcel, you still have to look at greatest practical extent on that parcel. If someone has a 100 x 100 foot lot, even if he owns land on the next lot behind that, if it doesn’t have to be combined otherwise by code, you look at the 100 x 100 parcel only.

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Mr. Morse said, “The only other thing I wanted to point out, was considering what I heard on the site walk today with discussion about a potential garage in the future. There again it is acknowledged, the landowner is acknowledging ‘I could actually go further back’ again, not just the two feet I want to do but for a future garage. It opens that door again for the Planning Board to say ‘wait a minute, you are going to be talking about a proposed garage in the future, it was mentioned on the site walk’, you can consider that. It is a comment on the record. My recommendation is, what would be best for the landowner is go with what he has and let’s make sure from this point forward, we properly determine greatest practical extent according to the code the Town adopted.”

Mr. Plante said he was trying to be up front with the board, trying to put together a package and have the foresight. He said, then you are criticized for doing that. He believed this told the homeowner not to say anything about future plans. Mr. Morse said, whether the homeowner or developer, it’s all the same. If you are saying there are different phases, the Town, Planning Board and CEO has every right to look at each phase of this. Mr. Plante felt like he should shut his mouth. Mr. Morse said the point was taken and it was reality. He said the point was, it was mentioned and he understood Mr. Plante’s position.

Roger A. asked, “What you are saying is looking at the original structure, pushing that back but about the 30% expansion you want to add to that, does that come into it as well?” Mr. Morse said, “The way this works is, the Planning Board would take the original structure, determine where the greatest practical extent is. Once that location has been determined, then the Planning Board or the landowner can look at that and determine what can be done with expansion. Obviously, if it is outside of the 100 feet then you are not talking about 30%. If it is straddling the 100 foot mark then they get just 30% of just the remaining portion within, but they still get the 30%, but only what is remaining within the structure. If the entire structure is still greatest practical extent, fully within the 100 foot buffer, then they get 30% of the full structure.”

Mr. Plante stated, “The problem with this whole project is the original structure was so small that the 30% would only allow me to build a 24’ x 26’ camp. Believe me I didn’t want to go to the 100 foot mark.” He stated, “In order to get larger it shoved me beyond the 100 foot mark and drove me into that banking.”

Mr. Morse said whether its Shoreland zoning non-conforming setbacks, or road setbacks, or property line setbacks, with non-conformance to those, when you look at the provisions it doesn’t matter what the setback issue is, the idea behind the provisions is to reduce or ideally eliminate non-conformities over time. He said that is why you are limited to only 30% if you stay where you are which is why you are required to move back to the greatest practical extent. Because if you take a small camp and want to turn it into a year round home, it is an incentive to hike it back.

Mr. Plante asked Mr. Morse if there was anything non-conforming with what he was doing now? Mr. Morse stated that with the current approval, no. He said the DEP issue would not be with Mr. Plante as a landowner but with the Planning Board issuing the permit. He said that was his area of concern. Had the DEP been aware of this, we would have said the same thing.

Mr. Plante stated, “Steve even brought Chris Coppi (DEP) down there and the size of the lot, plus where the leachfield was going, plus the driveway, you only have so much room to play with, to start with. So Chris is down there and he said the same thing, ‘it should have been moved back’. Well where are you going to put the leachfield, it has to go beyond the 100 foot mark. You want the driveway beyond the 100 foot mark, so everything else is beyond the 100 foot mark. Geez, it would be nice to have the camp plus the 30% in front of it.” Mr. Morse said the issue is that the board didn’t take the original size of the structure and figure out

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where that went first, along with the septic, along with the driveway, etc. They considered the proposal which was I’m not moving this, I’m moving that, therefore, I have to figure out where this fits into the picture, not where the original size of the structure fits into the picture.

Mr. Plante stated, “In my opinion, your rules should have a little bit of room to move because anybody with half a brain would say this is what you got right here, instead of driving into this hill, why not have a little bit of leeway and this guy’s camp was only 35 feet from the water, now it’s’ 65 feet from the water and he’s not disturbing that hill. It would have saved so much aggravation and less disturbance.”

Mr. Morse read from the ordinance the considerations the Planning Board would consider to determine the location, from §105-4.D(7)(b) he read: “In determining whether the building relocation meets the setback to the greatest practical extent, the Planning Board shall consider the size of the lot, the slope of the land, ‘there is your slope’, the potential for soil erosion, the location of other structures on the property and on adjacent properties.” He said, “There is a list of things here to take something that is seemingly subjective, to make it much more objective. The slope of the land, I don’t know what the original land looks like.”

Mr. Plante stated that he didn’t want to drive the camp into the slope, it created so much soil disturbance it isn’t even funny. Mr. Morse believed this conversation should be taken up outside of the Planning Board. He said, “If I were on the Planning Board and you tell me that you can’t move back because of the slope, which is legitimate, then I might ask you, are you going to be able to live with this small structure plus 30%. And as a land owner you may possibly say I want something much bigger than that.” Mr. Plante stated that if he moved beyond the 100 foot mark then he could expand the way he wanted.

CEO McDonough did not feel it was a right to take what you have plus 30% and move it beyond 100 feet. Mr. Plante asked if he could build what he wanted beyond the 100 foot mark? Mr. Morse said, yes, but there are other limitations but not the 30%, absolutely. He said the point of the language was to give the owner an incentive to want to move back. Mr. Plante said he felt there should be some wiggle room. Mr. Morse believed there was but it may not work for the landowner. Mr. Plante said he was a contractor and he had no problem digging more.

Mr. Morse stated that these were DEP’s concerns. He said, “We would recommend to the board, you have got to go back to greatest practical extent, as if it were a new project, and you would have to go back to square one and do it the proper way and consider just the relocation of the original structure and it probably would be different from the original outcome.” He said, “For the landowners benefit, I think we should just keep it the way it is, you would probably be better off.”

Mr. Plante said by turning it, it would be less evasive. Mr. Morse said the board has to go back to the original project, consider greatest practical extent, turning it would not help the decision. Mr. Plante continued to go on about being in conformance. Mr. Morse didn’t deny he was probably in conformance with the Planning Board approval.

Mr. Morse stated in conclusion he was here to help the board, so if they had any questions he would be more than happy to answer them.

Maggie M. thanked Mr. Morse for what he stated, she said she learned alot. She believed based on what Mr. Morse said, if the board approved the amendment, the board would be compounding their error. Mr. Morse stated, “Correct.” She believed this could create problems in the future. She also told Mr. Plante that the board wasn’t going to state that he had to go back and put the little house back up or use that size because the board has already made the mistake, it was the boards fault. She believed the board was better off agreeing

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with the original approval because the board could get into trouble for compounding it, knowing we made the mistake.

Mr. Plante said it meant pushing it into the hill but if that is what the board wants. Maggie M. noted that that was what was originally approved. She said the board has to go along with that approval. She said again, if

the board changes that approval, knowing the board made a mistake, it would make the board look worse knowing we made a mistake and then doing it again. Mr. Plante didn’t agree, he thought it would be making it less of a mistake, turning it 8 or 10 feet. Maggie agreed if the board had changed their minds before the approval that would have been better to turn it, but the board didn’t and because the board made the initial mistake, she believed they should stick with the initial approval.

Mr. Morse stated, “If the town wishes to seek legal counsel advice on this, ‘are we really opening the door all over again by considering this amendment’, you may want to take a look and have that conversation; I would be happy to check with the office of the Attorney General, to make sure I’m not mis-speaking but I don’t think I am.” Mr. Plante didn’t want anymore delays.

Roger A. agreed that by having an amendment before them, it opened up the application to take another look.

Stephen F. believed there were three options. The board could deny the application, and Mr. Plante can keep doing what he was approved for; the board could table it; or the board could vote on it.

Mr. Plante said, “If the board doesn’t want me to move it, if you vote against it, I have no problem putting it where it is. You saw what’s going to happen, we are going to move some more dirt, but it’s no big deal to me. If the expansion is a big deal then leave it at 26, if it makes everybody feel better.”

Roger A. said, “At this stage of the process, I think we should leave it where it is and leave it at the 26’ x 36’, the originally approved location, even though it will create more gravel being removed.”

Maggie M. stated, “One other concern is, we can’t pretend we didn’t hear the discussion about the garage. I know you were just giving us a heads up but because we have the information in the back of our minds and when we were standing there looking at the hill, where the proposed garage is going to be, the hill is already damaged.” Mr. Plante said he was going to cut a road for the excavator. CEO McDonough was concerned with cutting more trees. Mr. Plante stated he wouldn’t have to cut anymore trees. Roger A. stated it was just for utilities. Mr. Plante went on again about turning the camp and how it would benefit the board. Stephen F. asked, “How does it benefit us?” Mr. Plante started talking about overdig for the structure. Maggie M. stated this would be protected by the retaining wall that will be constructed as part of the foundation. She said her concern was the area where the future garage would go. She said that was already dug out, how would that be protected if nothing is going to be built there at this time? She said it would just wash away. Mr. Plante said there was no problem to put that back (the earth).

Roland L. stated, “Since you put the garage piece on the table, and I’m looking at the plan you provided, it would seem to me that if the board approved your moving the building over it would have less impact on the hill where the garage would be.” Mr. Plante said, “That is not true, because of the 100 foot mark. If I turn the camp I’m squaring up with the 100 foot mark, if I don’t turn the camp the garage would meet the house at an angle. If I turn the camp, the garage would meet the house square. The garage is going to be parallel to the 100 foot mark because I can’t go over the 100 foot mark.” Roland L. asked about cutting into the banking. Mr. Plante stated he would be cutting into the banking the same. Mr. Plante, looking at the plan, showed Roland what he was talking about. Mr. Plante stated again by not moving the camp he would be

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moving more dirt. Maggie M. noted that the board cannot be blamed for that, as that is what he wanted and was approved for.

Mr. Morse stated, “I assumed the excavation, moving more dirt by not moving the camp, is what the Planning Board already approved.” Mr. Plante said that most of the dirt is already moved for what was approved for now. Mr. Morse noted that the Planning Board had already approved the current location. Mr. Plante stated his new proposed location would move less earth.

Roland L. asked if the board opened themselves up to possible legal action if they approve the requested change? Mr. Morse stated, “Yes, possibly. I am not here to play the enforcement card. I want to help the board make the proper decision. Let’s do it right. Should a town, Code Officer, Board of Appeals, knowingly make an improper decision then it does open the door for some type of formal enforcement or legal action. I can’t tell you DEP will chase the Planning Board down for formal enforcement, I cannot tell you we are or we are not but yes it could open that door. I cannot tell you tonight if it will or will not happen.” Roland asked, “Can a private citizen take action against a board for something like that?” Mr. Morse said, “Sure.” Roland said, “Then my decision is made.”

Mr. Plante said again, “You guys want me to dig more into that banking, then let’s do it! You know I got the equipment to move the dirt.”

Mr. Plante asked Mr. Morse what he would do? Mr. Morse stated, “Unfortunately, even if it seems like we have to throw common sense out the door, but I’m not saying we are doing that here. The code is black and white and that is what we have to follow. Had this been the original size structure and it had been relocated and we were having this conversation, and it was a question of turning it to improve the setback then the answer would have been a yes. The point is, if we open the door again, then we are going back to what the greatest practical extent determination is and revisit it, with using the original size structure, not the luxury you were afforded in the first approval by the Planning Board, where they considered a larger structure for greatest practical extent, we might end up with a different result at the end.”

Mr. Plante asked if he was in conformance now? Mr. Morse said if he was following his permit then he probably was. Mr. Plante still didn’t understand what the board did wrong. Mr. Morse did not want to go over it again. Roger A. stated, “We should have looked at the original camp and placed that and then after that add the 30%.”

CEO McDonough said it was getting late, if the board needs more clarification the board should schedule a workshop with the DEP. Mike Morse would speak with the board further if they so desired.

Mr. Plante still appeared confused about compliance. Mr. Morse said that if Mr. Plante was in compliance with Planning Board approval then ‘he’ was in compliance. Mr. Plante said, “OK.” Mr. Morse stated that the board issued an approval but the process that they used was in error. He said because work has already begun, there are vested rights with that approval. So as long as Mr. Plante was in compliance with that approval, he was ok to do what he was already approved for. He said, “We are not going back, if it had been several days or weeks after, the DEP would have asked for reconsideration and had that conversation. There are no legal rights to go back at this time.”

Mr. Morse said the workshop would be a different issue outside the scope of an active project. He said if the board is interested he would have that conversation.

Roger A. asked if the board wanted to act on the application?

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Maggie M. made the motion that the board DENY the application for the Amendment to a Best Possible Location to Change the Size and Location of the Structure based on this evening’s discussion of errors in the initial review process, not wanting to compound the possible error in relocation. Roland 2nd the motion. Members voted for approval, 4-1. Diane S. did not vote in favor of the original approval, therefore, she abstained from this decision. The motion to DENY the amendment passed, whereby the original location and size of the structure shall remain as originally approved.

Nothing further was discussed.

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Conditional Use Permit – Business Location for Chessie Excavation – Map 7, Lot 1-B-1 (776 Shapleigh Corner Road) – Caleb Chessie, Applicant

Mr. Chessie asked to reopen the discussion of his application.

Mr. Chessie asked if he could make his lot a commercial lot, so he could put a sign up? He said he would not do his house.

Maggie M. asked if that would cancel his Growth Permit for a residence? CEO McDonough wasn’t sure and said it was a first for him. Mr. Plante said, “We are just going to keep on grinding Steve.”

Roger A. began by stating traffic access to the site was at the minimum of 315 feet of site distance because it the road is 45 miles per hour. Southbound it met the recommended site distance requirement.

Roger A. said with respect to noise it would only be from 7:00 a.m. to 7:00 p.m., except for emergencies for snow plowing. Roger noted the noise decibels were 60dB, anything greater could be contested by the neighbors.

CEO McDonough wanted Mr. Chessie to know the structure to be used would have to be to a stringent building code. He said in light of this, before the business is there, he would have to apply to build the structure. Until the business has an occupancy permit, the best that Mr. Chessie could get with respect to a sign is a temporary business sign, then once the structure is complete, with State Fire Marshall approval for the structure and everything is in order, then the Caleb Chessie Excavation sign can go up. Mr. Chessie said, “Huh, then I change my mind again. Why can’t everything be easy?” CEO McDonough stated, “That is what I tried to tell you prior to the meeting.”

Mr. Plante said, “Just get an old junk truck out there with your name on the door and don’t put a sign up.” Mr. Chessie said, “I guess that is what I’m going to do. Sorry, I wasted your time.”

Mr. Chessie pulled his application permit.

Nothing further was discussed.

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Growth Permits

Map 7, Lot 42C (Owl’s Nest Road) – New Home – Lee Dezan

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Mr. Dezan was asked to clarify the deed for the property because it appeared the deed provided did not describe the lot in question. Barbara F. asked Mr. Dezan to attend the meeting and he provided the correct deed and it was also determined the lot he was asking for was not 42C-1 but in fact 42C. After this clarification and review, it was determined the proposed location met all the setbacks in the ordinance.

GP #09-14 was granted.

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All supporting documentation, applications, etc. can be reviewed at the Town Hall during regular operating hours.

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Planning Board meeting adjourned at 9:10 p.m.

Respectively submitted,

Barbara Felong, Land Use Secretary

planningboard@shapleigh.net