EDGECOMB PLANNING BOARD
MINUTES,
1. Call to Order
The meeting was called to order at
2. Roll Call
Members present were David Boucher, Jack French, Barry Hathorne, Pat Jeremiah and Jarryl Larson and alternates David Nutt and Amber Tonry.
3. Approval of
Minutes of
Jack French moved to approve the minutes as prepared. Vote 5-0-0.
The chairman asked that two items be taken up before Item 4.
Neil Ames, Rolling Hills Subdivision - amended subdivision
application, 128 River Road, Map R-5,
Neil Ames presented the mylar and plans for the amended
subdivision (approved at the
Karen Smith - Site Plan Review for reactivation of gravel
pit, Map R-7, Lots 23.2 and 23.3.
Dan Alley was present representing Ms. Smith. A site walk was scheduled for April 10 at
4. Jon Rioux, Salt
Point Subdivision - Resource-based subdivision application,
(Barry Hathorne recused himself.) The action on this application was reviewed beginning with the finding of the application complete on November 19, 2009, the extension of the 30-day time limit on January 21, 2010 and acceptance of the application as that of a resource-based subdivision on February 4, 2010.
James Katsiaficas, attorney representing Barry Hathorne, asked permission to submit a letter on behalf of his client addressing items missing from the application. The chairman said that the public hearing was an opportunity for public comment and questioned whether public input could still be accepted; he said the board could not accept new questions every week. He added that in the last four months public comment had been made at six meetings and letters had been received; it would be necessary to draw the line at some point.
After comments by the board and the public, the chairman said that public input would be received until consideration of the final application and as long it was in writing. The chairman said the peer review by Ross Cudlitz had been received and that Mr. Cudlitz would review the wetlands issues on behalf of the state.
James Katsiaficas spoke on behalf of his client and his letter is attached. Glen Berkowitz, attorney for two abutters, said that the public should be allowed to speak as long as the applicant was at the table with the board, and the public should be allowed to speak in response to the applicant’s comments during the meeting. He added that the planning board has the authority to hire an attorney as it did previously with an application for a co-housing development. He asked if all reasonable alternatives to the road location had been explored and if so, the board must have the applicant prove that the road is set back as far as practicable from the stream.
Jack French submitted a list of additional materials needed for a complete application. The list was reviewed by the board and is attached. Questions brought up during the discussion included the need for running water and sanitary facilities at the building at the dock, whether access to the dock by 14 families would constitute a commercial use, ambulance access to the dock, and whether the dock should not be part of the common area. Jack French moved to require the list entitled “The Edgecomb Planning Board finds that there are specific additional materials which must be submitted in order to make this application complete” plus additions by the chairman be submitted by the applicant.
With regard to the waiver request for a change in the road width, Karl Olson, representing the applicant, said that the plans show the setback, and the waiver would not change the centerline or the width of the road, only the width of the pavement. Olson said the peer reviews not already addressed would be addressed.
James Katsiaficas suggested that the board hold a second public hearing to allow input from abutters. The chairman said that in the past no public comment had been allowed at planning board meetings; however, the present board does allow it as a common courtesy and asks that comments deal with facts, not emotions. He said there would be a second public hearing on this application, and assuming the applicant made no changes in the plans, public comment would be accepted for only seven days after the hearing.
5. Other Business
(Barry Hathorne rejoined the meeting) David Nutt asked what requirements needed to be met to rebuild his house (recently destroyed by fire). He was advised that site plan review may be necessary, depending upon change in size or footprint of the new house.
Jack French said the building committee for the new fire
station and the fire department are holding an open house at town hall on March
24 at
6. Adjourn
Barry Hathorne moved to adjourn at
Hand-Delivered
Edgecomb Planning Board
Re: Salt Point Subdivision
Dear Board Members:
This Firm represents Barry Hathorne. Mr. Hathorne resides on property at
Mr. Hathorne opposes the application for the Salt Point Subdivision for several reasons, including the following specific concerns. We understand that this evening, the Planning Board is considering whether to grant preliminary plan approval to the application and whether to grant a waiver from road standards for this application. These concerns show that additional information is needed, that the applicant’s submittals are incomplete and that neither preliminary approval nor a waiver should be granted this evening.
1. Not consistent with resource-based subdivision requirements. In order to be a resource-based subdivision, the subdivision must preserve or protect some resource set forth in Section 2.1.3 of the Edgecomb Land Use Ordinance (“the Ordinance”).
Mr. Hathorne recognizes that the Board determined at its
Not only does the subdivision parcel fail to meet the criteria to be a resource-based subdivision, but the application also does not meet the purpose and objectives of this type of development. This applicant simply is using the resource-based subdivision review as a way to minimize its infrastructure costs by allowing residential dwellings to be built on smaller lots with a shorter road in exchange for providing a beach to be owned in common by the homeowners for their own benefit and for providing unusable and undevelopable land (that is in Resource Protection because of steep slopes) as conservation land. Further, the applicant is straining the “resource-based subdivision concept even more by seeking to build the homes away from existing public road infrastructure.
It is not too late for the Planning Board to raise this issue. While the Board may have determined that the application is complete, that nothing is missing that would prevent review and that the applicant seeks approval of the plan as a resource-based subdivision, it just means that the Board now has before it an application that will allow review of its substance. When reviewing the substance of the application, it is apparent that this application fails to meet the standards for, and is inconsistent with the purposes of, such resource-based subdivisions.
Whether such a road could be constructed along and crossing
a stream and what appears to be a wetland area is unlikely, since Section
1.10.8 of the Ordinance requires roads and driveways to be set back at least 75
feet from the normal high water line of other water bodies and tributary
streams and from the upland edge of a wetland unless no reasonable alternative
exists as determined by the Planning Board, in which case the setback is to be
no less than 50 feet. The woods road as
it is now, along and across a stream and a wetland is a nonconforming
condition. Section 1.7 of the Ordinance
allows existing nonconformities to continue, but prohibits nonconforming
conditions from becoming more nonconforming, such as would happen if the
nonconforming woods road were to be expanded in width and intensity. Moreover, much of the proposed
Moreover, to the extent that some of the new road is to be located in part or in whole within the Resource Protection District, Section 1.10.8.3 prohibits roads in that district except to provide access to permitted uses within the district. However, this road would provide access to residential uses, which generally are not permitted within the Resource Protection District (an exception to prevent a regulatory taking permits one single-family dwelling to be constructed in the Resource Protection District on a lot of record as a special exception, but not the 14 home lots applicant proposes here). Even when a road is permitted in the Resource Protection District, the road must be set back as far as practicable from the normal high water line of the waterbody, tributary stream or upland edge of a wetland. All of these considerations require the Planning Board to require the road and driveways to be set back as far as practicable from the normal high water line of a waterbody, tributary stream or upland edge for wetland to the extent they are in Resource Protection -- yet the location of streams, wetlands and shoreland overlay districts on this parcel is far from clear.
In addition, the amount of fill required to construct the
proposed road crossing will require shoreland permits under the Ordinance
(Section 3 “Land Uses”), and may require a wetland permit from the Maine
Department of Environmental Protection (DEP, discussed in paragraph 3
below). Also, as the letter from Michael
D. Abbott, P.E., C.G. to Mr. Hathorne dated
3.
Shoreland
Zoning. Important areas of the
subdivision parcel are within shoreland zoning.
Shoreland zoning is a State-mandated land use ordinance, enacted and
enforced by the Town, to protect waterbodies and wetlands. The areas within 250 feet from the normal
high water line of the
Substantial portions of applicant’s parcel are within these
districts. The subdivision parcel here
is along the
The Planning Board has the authority to interpret the zoning Ordinance for compliance with zoning n the course of subdivision review (30-A M.R.S.A. § 4404(9)). The Ordinance (Section 1.5) states that in the case of any differences between the text and the map, the text prevails. The text requires areas within 75 feet of the normal high water line of streams to be placed in Stream Protection (Section 1.8.4) and within 250 feet of the upland edge of wetlands rated moderate to high in value by DIF&W to be placed in Resource Protection (Section 1.8.1).
Moreover, better wetlands delineation of the subdivision parcel is critical to determine whether any of the proposed road and other subdivision construction requires a permit from DEP for the alteration and filling of wetlands.
The Board should ensure that the subdivision is reviewed for compliance with the Town’s shoreland zoning requirements; if there are questions regarding these, DEP’s Shoreland Zoning Unit can be called to inspect the parcel and to review the subdivision application so that the Town and its Planning Board can fulfill their statutory duty to properly administer and enforce the Shoreland Zoning Ordinance. The Board also should ensure that there is appropriate wetlands delineation to permit the Board to determine compliance with wetlands requirements; DEP’s Land and Water Bureau also can be called to determine if wetlands alteration permitting is required.
4. Groundwater Impacts. In order for the Planning Board to grant subdivision approval, the applicant must meet its burden of proving that its application meets all twenty standards under Maine’s Subdivision Law (30-A M.R.S.A. § 4404) and all standards under the Town’s Ordinance. Section 2.7.1 requires the Board to find that the subdivision “will not result in undue water or air pollution” and requires the Board, in making that determination, to “at least consider” the “nature of the soils and subsoils and their ability to adequately support waste disposal,” and “the applicable State and local health and water resources regulations.” Section 2.7.3 requires the Board to find that the subdivision “has sufficient water available for the reasonably foreseeable needs of the subdivision,” and Section 2.7.3 requires a finding that the subdivision “will not cause an unreasonable burden on an existing water supply, if one is to be utilized.” Section 2.7.13 requires a finding that the subdivision “will not, alone or in conjunction with existing activities, adversely affect the quality or quantity of groundwater and aquifers.”
To help the Planning Board determine whether the applicant has met these standards, the Ordinance requires the applicant to submit a phosphorus control plan (Section 2.4.18) and a hydrogeologic assessment (Section 2.4.19). That hydrogeologic assessment requires the applicant to show post-development nitrates-nitrogen concentrations at wells within the subdivision and at the subdivision boundaries. The standard at Section 2.4.19.3 is that no subdivision shall increase any contaminate concentration in the groundwater, at any on-site well or at the subdivision boundary to more than the primary drinking water standards or the secondary drinking water standards. Mr. Abbott’s letter takes issue with hydrogeologic assessments submitted by the applicant and states that based upon Mark Cenci Geologic, Inc.’s calculations, “the proposed density of homes is too high to provide for safe drinking water conditions in the individual water supply wells.” The Town’s peer reviewer, Michael A. Deyling, C.G., L.S.C., observed that clarifications are need to determine whether the Hydrogeologic Assessment meets Ordinance standards, generally and in drought conditions. There also are questions about whether the applicant has used the correct nitrate standard and has accurately reported well water quantity and quality (see abutters’ letters in this regard), both of which raise the issue of whether this subdivision meets the water standards.
Conclusion. We understand that the application is before the Planning Board this evening for a waiver from the road standards (road width and pavement depth) and for preliminary plan approval. However, decisions this evening on both are premature, since the applicant has not submitted all of the information required by the Ordinance – information that likely will affect the subdivision road location, road width, lot lines and the ability to construct dwellings on particular lots. For example, the applicant’s statement that the subdivision parcel is in Marine District Area I and that “A portion of the common open space area falls in the Shoreland Overlay District” is insufficient to meet the Ordinance requirement to state the “Current zoning of property.” Which shoreland overlay district is implicated, where on the subdivision parcel, and what standards are imposed as a result? As noted previously, the location of wetlands and of shoreland areas on the subdivision parcel will have a significant impact on the number of lots, locations of lots and ability to build on these lots.
The applicant also has failed to provide other required submittals, such as the homeowners association bylaws, and the declaration of covenants submitted fails to detail the duties, responsibilities and ownership share regarding the open space. There is no description of restrictive covenants to be placed in the deeds to each lot. The documents submitted fail to state how the open space will be permanently preserved, and no purpose is provided for open space reservation. Stormwater structures are shown on a plan sheet, but there is no required stormwater management plan. The subdivision plan does not appear to show all areas within 2000 feet of the resource-based subdivision.
Also, additional information which can only be garnered in late spring, such as the possible presence of significant vernal pools on the parcel, may have importance to this review, especially if it is determined that this subdivision requires DEP wetlands approval. Prior site visits occurred in winter, when snow prevented a meaningful observation of site conditions, and early on in the subdivision process when issues such as these had not yet emerged. The Ordinance permits additional site visits at the Board’s discretion, and we urge the Board to exercise that discretion to schedule a site visit now that snows have melted and site conditions are more easily observed. We urge the Board to ask the Department of Environmental Protection to inspect the property both with regard to wetlands, and with regard to shoreland zoning administration and enforcement, so that the Town, the Planning Board and abutters can be confident that all appropriate agencies are reviewing this subdivision application properly.
With these issues still outstanding and with the need for additional inspection and information so great, it would be inappropriate for the Planning Board to grant preliminary subdivision approval and a road standards waiver at this time. The burden is on the applicant to properly and timely support its application, and if it has not done so, then either it can agree to extend the period of time for Board review and to submit the necessary information, or the Board can deny preliminary approval, requiring the applicant to reapply. Therefore, we suggest that the Planning Board may take one of two actions tonight:
1. Move to deny preliminary approval because the subdivision is not a resource-based subdivision; because submittal requirements for zoning, wetlands, a stormwater management plan, homeowners association documents and other required materials have not been met; and because the applicant has failed to show that the lots meet the stream crossing, zoning, shoreland zoning, subsurface wastewater and groundwater and well requirements of the Ordinance, or
2. Move to postpone action on the preliminary subdivision application and waiver until the applicant submits additional required subdivision submittals, an additional site visit can occur, DEP can inspect the site for shoreland zoning and wetlands concerns, and the applicant can provide additional information and as appropriate can address the wetlands, shoreland zoning, groundwater/wells concerns through revised application materials.
Thank you for your consideration.
Sincerely,
James N. Katsiaficas
JNK:pal
cc: Barry Hathorne
K:\H\Hathor
David
Silver
Environmental
Site Evaluation
Barry
Hathorne
Bhathorne@xpressamerica.net
Re:
Wetland Review
Dear
Mr. Hathorne:
Thank
you for the opportunity to meet last Sunday at your property in Edgecomb and
discuss the project near your property.
As I understand it, you reside on and occupy land southerly of a parcel
of land that is currently being reviewed by the municipal authorities in
determining the approvability of a proposed 14-lot subdivision as shown on a
Preliminary Subdivision Plan entitled Salt Point Plan. Part of the development roadway will cross a
perennial stream and wetland areas as shown on the plans.
You
asked whether the crossing will trigger jurisdiction under the State of
pond,
coastal wetland, river stream or brook.
In
turn, river, stream or brook is defined in section 9 as a channel between
defined banks. A channel is created by the action of surface water and has 2 or
more of the following characteristics, a) it is depicted as a solid or broken
line on the most recent edition of the US Geological Survey 7.5-minute series
topographic map, or if that is unavailable, a 15-minute series, b) it is known
to flow continuously for a period of at least 6 months of the year in most
years, c) the channel bed is primarily composed of mineral material such as
sand and gravel, parent material, or bedrock that has been deposited or scoured
by water, d) the channel contains fish, aquatic insects or mollusks in water or
stream bed, or e) channel contains aquatic vegetation or is essentially
devoid
of upland vegetation.
Wetlands
of Special Significance are defined in Maine DEP Regulations, Chapter 310 as
including all coastal wetlands and great ponds, critically imperiled or
imperiled natural area communities, and other areas as defined in the rule such
as significant wildlife habitat (480-B(10)), location within 250 feet of a
coastal wetland (3) or great pond (4), aquatic vegetation, emergent marsh
vegetation, or open water, wetlands subject to flooding (100-year storm event),
peatlands, wetlands within 25 feet of a river stream or brook as well as some
other characteristics.
It
is my understanding that other land use professionals has reviewed the project,
including engineering and geotechnical firms and provided their assessments
with regard to the structural, well water quality protection concerns, geology
and waste water disposal issues, which are not covered in this report. However, with respect to wetlands or water
bodies and the need for permitting under the NRPA, it is my understanding that
a field determination by Maine DEP staff has not occurred.
After
reviewing the NRPA statute and rules, we reviewed data about the project and
looked at the crossing area. From
preliminary wetland information, there are some wetland areas that fall within
the 25 foot distance from the stream.
Please refer to the attached plan that shows a preliminary, rough
outline of the areas of wetland that may be within that distance. Note that this is not a wetland survey or
wetland map as it was developed with a handheld GPS, Delorme Earthmate 2000
device and would not satisfy US Army Corps of Engineers criteria for a map that
shows boundary features to land surveyor accuracy (sub-meter).
According
to the definitions above, it is possible that the project would affect a
wetlands of special significance, in that areas of wetland exist within 25 feet
from the stream and stream crossing area proposed, according to plans submitted
to the town. Further, it is not clear
whether the project had been assessed for vernal pool areas that may be affected
by the landscape chance associated with the development. As you know, vernal
pools are considered significant wildlife habitat (DEP Rule 335) when specific
criteria are applicable such as species abundance, etc. It is noted that the Town of
I
understand that some other issues related to traffic movements, water
discharges, etc are also of concerns.
Those are not covered under this report.
I
hope this helps to assess the overall project impacts to you, the town and
vicinity. Please let me know if any
clarification or if there are questions on any of this.
Respectfully
submitted,
David
Silver
dave@mainelandquality.com
(207)
441-9770
The
Edgecomb Planning Board finds that there are specific additional
materials which must be submitted in order to make this application complete:
1. A copy of the proposed bylaws and
regulations of the proposed homeowner’s association. P 131
2. A copy of the proposed covenants setting
forth the lot owner’s rights, interests and privileges to be included in the
deed of sale for each lot including conservation easements, if any. P 131
3. The detailed plan of the fire safety
underground water tank or the language to be included in the restrictions or
covenants requiring sprinkler system’s in each residence. P132
4. Restrictions on the building envelope or
screening on lots 14 and 15 which will protect the view of the southerly abutter.
P138 (.2 and .5)
5. Any limitation of use on open space and the
proposed deed restrictions, if any, required by 2.4.12 p 140 and 141.
6. A copy of the proposed notation to be placed
on the plans as required by Section 2.4.12.2.
7. The proposed language stating the manner of
providing for the costs associated with the reserved open space which said
language shall be include in the deed of sale of each lot. P 143
8. Provide an estimate of all costs associated
with this subdivision including but not limited to infrastructure construction,
technical requirements, and required approvals .P 143 and P149.
9. Provide the necessary documentation that the
applicant has adequate financial and technical capacity to complete all
infrastructure and technical requirements.
P 143 and P149
10.Show that the application meets the requirements of 2.7.11 and
2.7.12.
11. The applicant shall remove the dock, as presently
permitted, from use by the members of the Homeowners association, or re
apply under a commercial or public use, as the existing plan of
construction and approval is for standards of private use only.
12. Remove the proposed "camp" building at the
shore front and dock area from the Homeowners association ownership and or use,
or create health and safety improvements that would allow for sanitary
facilities on that portion of the site.
13. Prohibit by deed restriction, ANY vehicular traffic down
the road to the "camp" by anyone, even the applicant.
14. Alternatively, remove "Common Area C" from the project
completely, or any portion thereof not required to meet the RSB Subdivision
calculations for necessary open space, if all of the above changes are not
made.
15. Address all of the Peer review items.