Planning Board Meeting ~ April 1, 2015

2015-04-01 · Planning Board · 2:11:13 · watch on YouTube →

A Planning Board meeting on 1 April 2015 dominated by a returning application from Ariel LeClerc (?) of 12 Pound Road to teach horseback riding lessons and keep a small number of boarded horses at her home. The board worked through the site plan checklist item by item, waived several missing items and found the application complete, then heard at length from abutters who did not object to the business itself but objected to any part of it happening on the long, narrow private driveway they live beside. Their (?) requested conditions covered manure storage under the groundwater ordinance, a 56-foot stockade fence, a 5 mph limit and a contribution to maintaining the private road. Unable to establish how close the driveway sits to the abutters' boundary, the board tabled the application and scheduled a site visit before its next meeting. The rest of the evening was spent on the Burnham screening permit and the landscape architect's incomplete photographs, on how to set out findings of fact, and on the board's own frustration with a land use ordinance it described as unworkable.

What was discussed

1. 0:01
   Before the meeting

   Members talked informally about presenting the budget at the coming town meeting and about personal matters while waiting for a member to arrive. Nothing substantive was decided.

2. 0:01
   Call to order

   The chair called the meeting to order for 1 April with a quorum present, and the board stood for the Pledge of Allegiance.

3. 5:04
   Agenda and order of business

   There were no amendments to the agenda and no continuing business. The board agreed to move the minutes to the end of the meeting.

4. 5:04
   The riding lesson application returns

   Ariel LeClerc (?) came back before the board, having been asked at an earlier meeting to correct her map to show the prospective pasture and run-in. She wants to teach riding lessons and run a small riding and boarding business at her residence.

5. 5:04
   Scale of the proposed business

   She has two horses of her own, has not started teaching, and has a client base of about 11 weekly riders who come with parents or as adults and go home again. She has no boarders, studied equine business management, and said the scale would stay small while her two children are young.

6. 5:04
   The limits she proposed

   She put her maximum at five horses including any boarders and 15 to 20 riders a week before she would have to come back to the board. The facility would be a standard three-sided run-in shed with the horses living outside, seasonal rather than winter riding, with only one or two cars at a time.

7. 10:29
   Checklist item one: date, scale and north point

   The map lacked a date, a scale and a north point. The board spent some time working out which way north lay from the Google image and the driveway, and established the lot plan came with the deed and was drawn by a surveyor, though the copy submitted has no scale.

8. 15:41
   What has been built since purchase

   The applicant confirmed she had drawn on the buildings added since buying the property, a chicken coop and the run-in shed, with everything else including the hay store already there. A pool visible in the Google image had been removed by the sellers before purchase.

9. 15:41
   Checklist items two to five

   Location of the site within the town, the tax map with the parcel outlined and the zoning classification in the Southwest Bend growth district were all found complete, and abutting property under the applicant's control was not applicable. The board noted the abutters' signed receipt notices were in the file.

10. 15:41
    A discrepancy in the numbers

    A member noticed the applicant's letter said one to four boarders and 10 to 15 lessons weekly, which differs from the five horses and 15 to 20 riders described at the meeting. The board set that aside to come back to.

11. 20:55
    Setbacks and building dimensions

    Setbacks and dimensions were given for the run-in but not for the house, and no ground floor elevations were provided for anything. The applicant said the house is not changing and would at most be used as a small office, with no one coming to it.

12. 20:55
    Parking and the driveway

    Parking would be on the gravel pad in front of and to the left of the garage, roughly 60 by 80 feet and able to hold up to 12 cars. The right of way is 50 feet wide and the driveway runs about 800 feet from Pound Road; the board found this item complete and found the intersecting roads item not applicable.

13. 20:55
    Water and wastewater

    There will be no additional plumbing and no portable toilet; anyone on site uses the house. The board found the item not applicable.

14. 26:08
    Drainage and the wetland on the tax map

    The applicant described water running around the outside of the property, through a culvert and away, with a soggy area at the back that she did not believe was classified as wetland. A member noted a small wetland is designated on the tax maps toward the back of the property, but the board found it had enough information.

15. 26:08
    Signage

    The applicant said she was proposing no signage beyond the existing name and address sign that came with the property. The board recorded the item as not applicable and noted that the application as approved would not allow a business sign.

16. 26:08
    Easements

    The applicant owns the driveway and believed her deed includes a 50-foot right of way easement running around the back of the town's maintenance facility property. It is not shown on the map and the deed was not with her, but the board found the item complete as not material to this application.

17. 26:08
    Remaining checklist items

    No lighting is being added, no state permits are required, nothing is being built now and no fuel or hazardous materials are involved, so those items were recorded as not applicable. The description of the proposed conditional use was found complete.

18. 31:44
    What was still missing, and waivers

    The outstanding items were scale, north point, bearings and distances of property lines, some building setbacks and ground floor elevations. The board waived setbacks because the buildings concerned already exist, waived elevations because it had the height of the proposed second run-in at about nine and a half feet, and waived bearings and distances and the scale requirement, one member saying he would have liked the deed but had enough from the discussion.

19. 36:51
    Abutters heard: Faith Baker and Robert Smith

    Faith Baker and Robert Smith of 20 Pound Road, map lot 75D, came forward. They began by disputing the statement that there are no wetlands, describing a brook down the side of their house, a swamp on the left of the applicant's driveway that is swampy all year, and a culvert that drains it into their yard beside their drilled well.

20. 36:51
    Their position on the business

    They said they own about 665 feet running beside the right of way plus about 101.72 feet of southern boundary, roughly 766 feet abutting. They said they like horses, have no objection to the business operating on the applicant's 7.65 acres, and are opposed only to it being conducted on the long narrow driveway.

21. 42:45
    Requested condition: manure management

    They asked that manure piles be on an impervious surface and covered in accordance with section 5.4.13 of Durham's groundwater protection provisions, so nitrates do not leach into the water flowing through the area. They also asked that manure dropped on the driveway be removed to the proper piles on the larger lot rather than pushed to the edge near their property.

22. 42:45
    Requested condition: no business use of the right of way

    Their central request was that lessons and the riding of boarded horses take place on the 7.65-acre lot and never on the right of way between the Smith Baker and Field properties. They argued a right of way designated as a driveway is intended for vehicular access rather than for operating a business, and that combining large animals with vehicles on a narrow drive where nothing can turn around is unsafe.

23. 47:51
    Liability argument

    They said horses are unpredictable and can be spooked by the deer, coyotes and foxes that cross regularly, and that a rider thrown could land on their property. They noted riding stables use release and hold harmless forms that protect the stable but not the abutters, so a claim arising from an injury on their land could fall on them, and said the town carries a risk too.

24. 47:51
    Disturbance and privacy

    They described their dog becoming stressed and barking when the applicant walked a horse past, and said they did not think they should have to bring the dog in every time. They also said a rider six feet up passing slowly overlooks a back yard they value and are taxed on, and that they had asked the applicant to turn horses around further up the road and been refused.

25. 53:21
    Requested condition: a stockade fence

    They asked for a six-foot stockade fence along 56 feet of their frontage where their house sits closest to the driveway, priced at Home Depot at about $400 in materials, made up of seven six by eight foot spruce pine fir panels at $29.97 and eight pressure-treated posts at $24.97. They said they would allow access onto their land to build it and would accept a deadline of June.

26. 53:21
    Why they do not want trees instead

    The applicant had proposed planting two trees at around $300. The abutters objected because that stretch is the one place on their property with no trees and where they get sun, and they have been cutting large pines back to increase sunlight and garden space.

27. 58:54
    Their traffic estimate

    They calculated four car trips per lesson from parents dropping off and returning, giving about 60 trips for 15 lessons, and up to 42 trips a week per boarder visiting three times a day, or 210 for five boarders. That came to a maximum of about 270 additional car trips a week past their house.

28. 58:54
    Speed limit and road maintenance

    They asked for a 5 mph limit on the driveway to cut dust, noise and distraction, something the applicant had already said she intended. They also noted Pound Road is a private road with no maintenance agreement, that they, the gun club and a couple of neighbours pay for grading and plowing, and that the applicant had said she did not have to contribute.

29. 1:04:20
    Board questions on drainage and the right of way

    The board pressed on how the water actually crosses the applicant's land and heard that the water table is high enough that one abutter had to build his foundation up. On the driveway, the board explained the right of way is 50 feet while the gravel bed is perhaps 10 feet and need not sit in the centre, so the drive may run closer to the Baker Smith side than the Field side.

30. 1:09:29
    The abutter at map lot 75C

    The abutter at 75C said he shared the liability concern and asked for an indemnification agreement so that liability arising from the business does not fall on abutters, while noting he is not a legal expert. He described living in a swamp with a basement drainage system running ten months a year and a fragile water supply that has changed in quality over the ten years he has owned the land, though he did not think the horses would affect it much.

31. 1:09:29
    His view on the driveway

    He agreed that a right of way is intended to give access to a property rather than to be operated on, and said he would be a lot more comfortable if the business were restricted to the main property. He said he has more setback than his neighbours and is less troubled by privacy, but could see why they were concerned since people on the drive look straight at their deck.

32. 1:09:29
    A resident from the end of the road speaks in favour

    Christina Libby (?) of 79 Pound Road, not an immediate abutter, said she had spent many years on the Lewiston planning board and 19 years on this road, and helps fund its upkeep. She knows the applicant professionally from the Freeport veterinary practice, said she was highly regarded, and understood the driveway use to be walking and cooling horses.

33. 1:15:00
    Her argument for a workable outcome

    She said this is a doable project on agriculturally zoned land, that traffic would come mostly during working hours, and that she was not making light of the abutters' concerns. She asked the board to address them with common sense rather than let the project be shot down by conditions too financially onerous to meet.

34. 1:15:00
    The applicant on how the driveway would be used

    The applicant said she never intends to teach a lesson on the driveway, will not ride circles up and down it or use a lesson voice, and envisages a short trail ride up and back as a reward at the end of a lesson and as a way to cool horses out. She said she understands equine activity is dangerous but that the same risks exist in an arena, and that the right of way is 50 feet against a driveway about 10 feet wide.

35. 1:15:00
    Waivers and hold harmless

    She said waiver forms are standard in the business. She said she had never heard of a hold harmless arrangement of the kind described, and that if a rider falls off it is on her as the instructor and the property owner.

36. 1:20:16
    The applicant on the fence

    She said a fence is an urban thing that would detract from the rural, wooded character of the property, and that their position was to plant trees that would grow in over time. She added that she had telephoned the town before buying to confirm the property was zoned for riding lessons and had not expected to be restricted from using her own driveway.

37. 1:20:16
    The board says it cannot decide

    The chair said that given the information about the driveway he did not have enough to evaluate the application: the checklist had been worked through on the basis of what happens on the property, and he needed to know whether the drive sits 10 or 15 feet from the Baker Smith boundary. He proposed a site visit, saying he could not vote to approve on what he had.

38. 1:25:40
    Whether to drop the driveway from the application

    Members discussed whether the applicant should take the driveway out of the application, and agreed she did not have to decide that night since the board could impose it as a condition instead. Paul, the codes official, pointed out she could proceed without the driveway and come back later, and that nothing about the process is a dead end.

39. 1:25:40
    Site visit arranged

    The board established it had 60 days and was not under time pressure, then moved to table and set a site visit at 12 Pound Road before the next meeting, agreeing on 6:15 p.m. so as not to delay the 6:30 start. The applicant noted the boundary pins are marked with orange flags following a recent survey of the front of the property.

40. 1:30:47
    Why the business cannot be approved in two parts

    The applicant asked whether the business could be approved now with the driveway dealt with separately, since she wants to start lessons when the snow melts and re-notifying abutters costs money. The board explained that amending an approved permit to add the driveway would be a wholly new application starting from zero, so it cannot approve part now and add to it later.

41. 1:30:47
    Advice on strengthening the application

    The board suggested she revisit the waived items anyway, be clearer about where the drainage goes and about the wetland. It explained the two stages: completeness first, then the criteria on noise, air and water pollution and effect on neighbours, and suggested writing a short paragraph addressing each so the board is not left guessing.

42. 1:30:47
    Manure storage rules

    The applicant said she would always clear manure from the driveway and was content for that to be a condition, and that the storage points marked on her map are at least 200 feet from standing or moving water, following the State of Maine's recommendations for stabling and manure storage. The board cited section 5.4.3 of the groundwater ordinance and the 1972 Maine Soil and Water Conservation Commission guidelines, and established that piles would be composted and spread rather than stored beyond six to nine months, and that the area is not a significant sand and gravel aquifer.

43. 1:35:56
    The board's frustration with its own ordinance

    After the applicant left, members said plainly that the ordinance is not working: the previous applicant came back three times and this one will too, and it is not fair to applicants, the board or abutters that the board is making things up on the fly. They noted $5,000 for ordinance work in the new budget.

44. 1:35:56
    The growth ordinance is out of compliance

    Members noted the growth ordinance is far out of step with state requirements: it is supposed to be reviewed, readdressed and revoted every three years and to set aside a percentage of building permits for low-income housing in both the growth and rural residential districts. The board either has to bring it into compliance or eliminate it, which would take a town vote.

45. 1:41:31
    Findings of fact and conclusions of law

    The board's bylaws require findings of fact, and members discussed who would draft them, ruling out the applicant given the quality of applications received. The format described was to run the completeness checklist first, then take the criteria one at a time, state the finding with its reason as part of the motion, write the reason beneath each item and vote each up or down, producing a document for the file that supports whatever decision is reached.

46. 1:46:47
    The Burnham screening and the landscape architect's report

    The landscape architect's submittal on the Burnham conditional use permit omitted the photographs taken from Mike Sunberg's (?) property, even though conclusions in the report rested on them. His finding is that the tree and berm combination needs to be 13 feet rather than the 10 the board set.

47. 1:46:47
    Notice of appeal

    Members were told Mike Sunberg (?) has filed an intent to appeal. The board also noted the revised ordinance from the last special town meeting had been distributed and that nothing land use related appeared to be going to the coming town meeting.

48. 1:52:00
    Small lots beside large ones

    Members identified the recurring pattern behind the opposition: people on comparatively small plots next to owners of larger plots who want businesses on them. The options are to raise lot minimums so people wanting privacy have the land for it, or to change what is allowed in areas with smaller lots, both difficult when lot size standards are similar across the town and both hard sells at town meeting.

49. 1:52:00
    The overdue comprehensive plan

    The comprehensive plan was supposed to have been done six years earlier; work had started under Janet but was tabled, and members put the cost at $20,000 to $30,000. One member said he had raised it with the select board and that the town is well overdue.

50. 1:52:00
    Whether the plan or the ordinance comes first

    Asked whether the comprehensive plan should precede the ordinance rewrite, a member argued the ordinance is such a mess it needs restructuring into some internal order first, which would take about as long as a comprehensive plan committee would need. He cited Bowdoinham's experience, including moving to a two-year revision cycle so the plan is never badly out of date.

51. 1:57:14
    Tiering applications by scale

    The board discussed Bowdoinham's practice of sorting applications into three groups by impact and matching the requirements to the scale of what is proposed. Members noted that a stay-at-home mother offering five riding lessons a week currently has to go through the same knot hole as a much larger project.

52. 1:57:14
    Asking represented applicants for findings

    Members agreed they could encourage an applicant with a lawyer to draft proposed findings of fact for the board to consider and amend, without putting it in the ordinance. They also agreed it could not be required of some applicants and not others.

53. 1:57:14
    Zoning history and Durham's change

    Zoning was discussed in the late 1970s or early 1980s and shot down. Members observed Durham has changed a great deal and is becoming a bedroom community, that there is no obvious place to put a business zone, and that the first argument neighbours raise is usually the effect on their property value.

54. 2:02:21
    Minutes and the 13 feet question

    A member raised a clarification on page three of the minutes, in the paragraph beginning David Trudell, about whether it was clear that the original number of trees was nine. Discussion established the requirement was screening of the garage to a minimum of 10 feet with trees no lower than 10 feet, so if 13 feet of tree and berm is what it takes, that is the requirement, and the Burnhams may come back if they disagree with the landscape architect.

55. 2:02:21
    The conditional use permit to be reprinted

    The codes official said the permit he had printed and signed reflected only the 10-foot minimum, and that he had not read it before signing. He undertook to reprint it to reflect what the board actually decided, for signature at the next meeting.

56. 2:02:21
    Road adoption item missing from the warrant

    A member raised the road adoption item on the difference between the subdivision and land use ordinances, which he had submitted so both would read the same. It does not appear in the warrant, which had been signed before it went in.

57. 2:07:35
    The missing photograph

    The codes official described snowshoeing into four feet of snow with a pole while the landscape architect directed him from the Sunberg porch, to establish the elevation difference to the garage, and said that critical shot was not in the package. The board asked him to request photo one and any other photographs the architect has, particularly given the likely appeal.

58. 2:07:35
    Minutes and adjournment

    A motion to approve the minutes was made and seconded and the chair called for votes, followed immediately by a motion to adjourn. The recording ends at that point.

What was decided

• 31:44
  Waive the site plan requirements the application did not meet: bearings and distances of property lines, building setbacks for the existing buildings, ground floor elevations, and the scale requirement. Agreed in discussion item by item, on the basis that the buildings concerned already exist and the board had the height of the proposed run-in and enough dimensional information from the conversation.passed
• 36:51
  Find Ariel LeClerc's (?) conditional use application complete with the waivers discussed. Moved and seconded and the chair called the vote; the board proceeded on that basis to hear abutters on the merits.passed
• 1:25:40
  Table the application and request a site visit, because the board could not establish from the material submitted how close the driveway runs to the abutting boundaries or whether the right of way forms part of the business site. None of the conditions the abutters asked for, on manure, the driveway, a fence, a speed limit or a contribution to the private road, were decided.tabled
• 1:25:40
  Hold the site visit at 12 Pound Road at 6:15 p.m. immediately before the next meeting on 6 May, noting it is a public meeting that anyone may attend. Agreed in discussion with the applicant present; no separate vote was taken.passed
• 2:02:21
  Have the codes official reprint the Burnham conditional use permit so it reflects what the board decided, that the trees be no lower than 10 feet and sufficient to screen the garage to 10 feet as determined by the landscape architect, rather than only the 10-foot minimum. To be signed at the next meeting. Agreed in discussion; no formal vote was taken.passed
• 2:07:35
  Ask the landscape architect to produce photo one and any other photographs he took from the Sunberg property toward the Burnham garage, which were relied on for his 13-foot finding but left out of the package. Agreed in discussion; no formal vote was taken.passed
• 2:07:35
  Approve the minutes, with the clarification discussed about the number of trees and the 10-foot screening requirement. Moved and seconded and the chair called for votes, but the recording does not state a result.outcome unclear
• 2:07:35
  Adjourn. Moved and seconded and the chair called for votes; the recording ends without a stated result.outcome unclear

An outcome reads "unclear" where the recording does not state it plainly. The recogniser drops short words, and "the motion does not carry" is one missing word from its opposite.

Motions the minutes record

The town's own written account of what was decided, taken from april_1_2015.txt. It owes nothing to the recording or to a model: the clerk typed it, with the vote. Where the summary above claims a decision this list does not carry, the summary is the part to doubt.

• find that the Application is complete, waiving 6-B for the purpose of scale with other waivers as discussedcarried 4-0

  Moved by Anne Torregrossa, seconded by Mindy Woerter

• table this and to request a site visitcarried 4-0

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• Approve the March 4th 2015 Minutes as presentedcarried 4-0

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

• Adjourn at 9:10 p.mcarried 4-0

  Moved by Anne Torregrossa, seconded by Michael Fitzpatrick

Worth knowing

• 1:20:16
  The whole application turned on the private driveway. The abutters accepted the business on the applicant's 7.65 acres but not on the right of way, and the board tabled the matter because it could not tell how close the roughly ten-foot gravel drive sits within the fifty-foot right of way to their boundary.
• 58:54
  The abutters put the business at up to 270 additional car trips a week past their house, and asked for four conditions: manure stored and covered under the groundwater provisions, no business use of the driveway, a six-foot stockade fence over 56 feet costed at about $400 in materials, and a 5 mph limit on the drive.
• 1:35:56
  The board said openly that its land use ordinance does not work, that applicants are being made to come back three times, and that it is left making things up on the fly. There is $5,000 in the new budget for ordinance work.
• 1:52:00
  Durham's comprehensive plan was six years overdue, had been started and then tabled, and members put the cost of producing one at $20,000 to $30,000. The growth ordinance was described as far out of compliance with the state requirement to review and re-vote it every three years, leaving the town to fix it or repeal it by town vote.

Motion language found in the transcript

Located by pattern matching, with no model involved: "I move that", "I'll second", "all those in favour". This is an independent check on the summary above: 3 passages of motion language, against 8 decisions summarised.

Elsewhere

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