| January 29, 2020 | |
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Shapleigh
Planning Board Minutes Tuesday,
January 14, 2020
Members
in attendance: Roger Allaire (Chairman), Madge Baker, Ann Harris, and Roland
Legere. Maggie Moody and Steve Foglio (Vice Chairman) were unable to attend. Code
Enforcement Officer Mike Demers was also in attendance. ************************
Minutes
are not verbatim, unless in quotes “” – If the name of a citizen making a
comment was not requested by the Planning Board Chairman, the reference to
their name will be known as ‘Citizen’ or ‘Abutter’ depending on whom is
speaking.
************************
Proposed Ordinance Changes: Amend
§105-4 to Allow Low Retaining Walls in the Shoreland District;
and Allow a New Accessory Structure in the Shoreland District; Addition(s) to §105-15. Definitions. &
§105-17. Land uses; Amendment to §105-26 Stormwater runoff
Barbara
F. provided members with copies of the proposed ordinance changes and
additions, which included an amendment to ‘New Accessory Structure in the SD’
based on the discussion on the topic at the last Planning Board meeting held on
December 10, 2019, and a recent email from Jeffrey Kalinich of the Maine DEP,
Assistant Shoreland Zoning Coordinator. At the meeting on December 10th, it was noted by Steve F.
that Section 105-35 addressed accessory buildings, requiring them to be set
back 10 feet from the rear and side lot lines, and it could not be located in
the ‘require front yard’. In the SD the
front yard, the area between the road and existing structure is likely where
the new accessory structure would or could be located, so it appeared there
would be a conflict in the ordinance. Barbara brought this to the attention of Jeffrey Kalinich when she
emailed him the proposed additions and amendments to the Zoning Ordinance for
him to review. Mr. Kalinich agreed
stating, “It would appear that Section 105-35 conflicts with (the addition to)
Section 105-4.D. I am not sure what a required front yard is but clearly 105-35
is saying accessory structures must meet the setbacks and (the addition to)
105-4.D is saying they do not have to meet setbacks in certain circumstances.
You could amend 105-35 to say except when the criteria of 105-4 are met, or
visa-versa.”
Barbara
F. stated that she amended New Accessory Structures since this has been presented
in a public hearing to voters already, whereas any change to 105-35 has not, so
she didn’t feel comfortable amending that section at this late date. She did say the board could consider a change
to 105-35 for next year if they felt it was appropriate.
Barbara
F. stated that she also made a change to ‘New Accessory Structures’ regarding
side lot and road setbacks after the last discussion. She added ‘In no case shall the structure be
located within 10 feet of the setback to the edge of the road or side lot
line.’ Barbara said the board could
change this, she just wanted something to open a discussion regarding the
setback issue for the new structure.
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Planning Board Minutes – 1/14/2020 Page
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Roger
A. stated that after reviewing the new ordinance for Low Retaining Walls, under
the new section (h) ‘All approved plans may require confirmation in writing by
a licensed surveyor that the placement of the structure is correct per the
specifications approved by the Planning Board’, he wanted to add a number 1)
stating that the side setbacks do not apply. He said the reason is the side setback requirement is 10 feet and it is
likely the low retaining wall will go up to the side lot line. He said the placement of the structure is
likely to be by a licensed surveyor, so the board would be allowing the wall to
go up to the side lot line.
Roger
A. said the board would not have to change anything else in the ordinance, just
add line item 1 under the surveyor section, this would allow the wall to go to
the side lot line. The board discussed this and agreed this would work. Roger said again the surveyor would be
depicting the location. The board members
did note that Section (h) stated that ‘All approved plans may require confirmation
in writing by a licensed surveyor’, there was concern over the word ‘may’. Barbara F. said this had been discussed when
initially talking about adding the section for a surveyor to this new section
of the ordinance, and several members thought the word ‘shall’ was too
strong. Roland L. asked if the word
‘may’ is used, who makes the determination whether a survey will be
required? Both Ann H. and Madge B. did
not like the word ‘may’. Ann said with
the word ‘may’, applicants could accuse the board of allowing a wall to go in
without a survey for one person, while requiring a survey for another
applicant. She felt ‘may’ should be
removed. Madge agreed. Ann stated that with so many issues with
property lines, and the fact many people still haven’t had a survey done, this
could help them realize where their actual boundary is. She noted some people may be shocked
unfortunately. Roger agreed ‘shall’
would be appropriate.
Board
members agreed to place the word ‘shall’ under Section (h) ‘All approved plans shall
require confirmation in writing by a licensed surveyor that the placement of
the structure is correct per the specifications approved by the Planning
Board.’ Also under Section (h) will be
Section [1] which will read, ‘Side setbacks for structures shall not apply to
low retaining walls’.
Roland
L. asked if he was correct in assuming a low retaining wall would allow stairs
to go thru it? Madge B. and Roger A.
stated that yes, stairs would be allowed. Roland said he wanted to be sure because it wasn’t stated. Madge said that it was common sense.
Madge
B. asked if it was clear that these walls could not be put in if there were
trees impacted? She said she did not
want people taking down trees to put in these walls, she wasn’t sure if that
was clear. Madge said that behind the
wall you revegetate. Barbara F. asked if
she had a suggestion? CEO Demers said
that even in front of the wall it had to be re-established with a buffer. Madge
said she didn’t want the new walls to take out trees. Roland L. said he agreed. CEO Demers stated that this was Planning
Board review, so on a case by case basis the board has the ability to review
the situation. Ann H. thought they
couldn’t just take down trees in another section of the ordinance. CEO Demers believed during the review process
there would be a determination of whether or not the tree could stay or needed
to go. Roger A. agreed. Madge said these walls were going in to
prevent erosion because of no existing buffer, so she didn’t feel an existing
tree should be removed that is part of an existing natural buffer. She said if
the ordinance said no tree removal she would feel better. Barbara asked Madge where she would like it
stated? Madge asked Roland his
opinion.
Ann
H. also spoke about the fact that the new ordinance for low retaining walls
didn’t specifically state the walls are for erosion control only. She read the first paragraph of the ordinance
which states ‘Retaining walls that are not necessary for erosion control shall
meet the structure setback requirement,
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Planning Board Minutes – 1/14/2020 Page
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except
for low retaining walls and associated fill provided all of the following
conditions are met:’. Ann was not sure
it was clear that this ordinance was for erosion control measures only, and
asked if there should be a sentence added that specifically states the walls
are for erosion control purposes. CEO
Demers stated that the ordinance was taken from the DEP Chapter 1000 guidelines
and thought the board should keep it as written, so there would be continuity
between ordinances in surrounding towns. He felt it was easier for him to correspond with other CEO’s when asking
them what they might do in a specific situation, therefore, he didn’t want it changed. He felt the more the board changes it, the
more there could be unintended consequences. Ann thought if a regular person read the ordinance it does not say why
low retaining walls are allowed. CEO
Demers said, “Because no effective erosion control exists’. Ann stated, “But it doesn’t say that
anywhere”. Madge B. and Roland L.
thought it said quite the contrary. Roland said it says if you want a retaining wall not for erosion control
purposes. Ann added that it goes on to
say ‘shall meet the setback requirements, except for low retaining walls’. She
said it doesn’t say why low retaining walls are an exception. CEO Demers stated the way it is written, that
if you want to put a wall beyond the 100 foot setback then it doesn’t have to
be for erosion control, otherwise it does. Ann agreed but said again the way it is written it is not clear. Roland agreed stating that he just read it
and he didn’t know it was for erosion control only. Barbara F. asked CEO Demers if he thought, so
there is no confusion, the section should be entitled ‘Low Retaining Walls in
the Shoreland District less than 24 inches in height for erosion control’. She
asked if it would be confusing or would it work? CEO Demers did not think it was
confusing. Ann thought it would
work. Barbara agreed it was best placed
there than to try to rewrite the paragraph in the ordinance. The board members agreed as well.
Roger
A. said with respect to trees it will be up to the board. He stated that if a tree is removed they will
have to replace it. Ann H. agreed but it
would not be the same removing a large canopy and putting in its place a six
foot tree. Madge B. said the board
doesn’t have to allow the tree to be removed if it is not necessary. Roger agreed. Madge said if removing the tree will make the situation worse than the
board does not have to allow it. Roland
L. wished the board would include a statement that says ‘no tree will be
removed in order to place a wall’. Barbara F. said you would have to be specific because what if there was
a dead tree. She thought sometimes the
more you put into an ordinance the more difficult it is too enforce. She felt the board had the right now, as it
was written, to pass judgement on whether or not a tree could or should be
removed during the application process. CEO Demers agreed.
Roland
L. asked about Section (a) ‘The site has been previously altered and an
effective vegetated buffer does not exist’, in this case will a person not be
able to put up a wall if the site hasn’t been altered? Madge B. thought that was why CEO Demers told
Mr. Mageary at the public hearing that his site would not qualify under this
ordinance for a wall. She said Mr.
Mageary’s property is steep but it hasn’t been altered, so he can’t use this
ordinance. CEO Demers agreed, because
the site hasn’t been altered. He said
there were other camps down the road, that from the road to the lake it is all
sand, there isn’t any way to grow any vegetation, so a retaining wall would be
perfect. Madge said again that in Mr.
Mageary’s situation he could not use this ordinance to get a retaining
wall. CEO Demers stated that was the way
he would interpret it.
CEO
Demers asked if the DEP had seen the preliminary version of the ordinance
changes? Barbara F. stated that yes, and
Mr. Kalinich had made comments and stated the language in the retaining wall
and accessory structure sections with the added language met the requirements
of Chapter 1000. She added that she will
send him a copy after the next public hearing with the final version for his
review. Shapleigh
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Roger
A. stated that with respect to the New Accessory Structures, if someone doesn’t
have a shed and wants one they can, as long as it isn’t between the existing
structure and the water, and it meets the dimensional requirements. He said they can put it on the side of the
camp or toward the road. CEO Demers
stated that the side setback requirement is not going to apply to a shed where
no other accessory structure exists on the lot. Roger said what he considered for setback requirements are: ‘The
structure shall be setback from the road a minimum of 25 feet from the edge of
the road’. He felt this would allow them
to encroach closer to the road without a best practical location. He said this would allow them someplace to
put it. CEO Demers said, “So you would
allow them to place it 25 feet from the edge of the road or right-of-way”. Roger said, “Yup”. Roger said the side setback minimum would
remain 10 feet, but they would be allowed to go up to 25 feet to the edge of
the road. CEO Demers wanted to be sure
they put road ‘or right-of-way’.
Barbara
F. again noted she added section b) to state, Section 105-35 of the ordinance
does not apply when the criteria in this section are met. Roger A. agreed this makes it specific to the
shed, because he didn’t want to apply it to any other shed. Ann H. asked if with this shed lot coverage
applies, and did it have to be added here. Madge B. and Roger said it already is written in the ordinance, so it
didn’t have to be added here.
Madge
B. stated she would prefer the word ‘dwelling’ to residential structure in the
first sentence. ‘On a non-conforming lot
of record on which only a residential structure exists’, she liked the word
dwelling. Ann H. asked about a pop-up camper on a lot, what if they want a shed
because they can’t fit everything into the camper. Madge said the board does not want that. Barbara F. did not think this was the DEP’s
intention and if the board wanted to make a change like that they would have to
go back to the DEP to ask their permission. Roger A. agreed. Barbara said no
additional changes can be made after this evening, so any additional changes
would have to be brought up to go before voters in 2021.
Madge
B. asked how the board would feel about saying one dwelling unit instead of
residential structure? She felt
residential structure is wishy washy. CEO Demers stated that the important part is you are only allowed an
accessory structure if there is a main structure, provided there is no other
accessory structure on the lot. He
didn’t think it mattered what you call the primary structure. Roger noted that under 105-18 Land Uses, for
the setback requirements the word used is ‘Residential Dimensional
Requirements’. He felt it would be best
to stay with residential instead of dwelling because of this. As a
note under definitions it is called ‘Residential Dwelling Unit’. In addition, the last line of the definition
reads ‘Recreational vehicles are not residential dwelling units’.
Madge
B. said she was fine with that, but she just still felt uncomfortable with the
word, especially around the lake because of some of the places on the
lake. She said she did like the fact
that lot coverage counted. She felt this would limit the number of new sheds.
Ann
H. was concerned that the ordinance didn’t say you could only have one. CEO Demers stated that it says on a lot on
which only a residential structure exists, which means there are no other
structures on the property.
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Barbara
F. stated the only other change was the addition to §105-17 for low retaining
walls, she added ‘Yes’ in the General Purpose District as they are allowed without
a permit. The board members agreed.
Barbara asked CEO Demers if this was ok with him? He stated it was.
Barbara
F. also provided members with a copy of the Comprehensive Plan that was amended
by the Planning Board in 2016, and voted on and approved in March 2017 by the
voters. She said Madge B. wanted the
board to review it and see if there were any changes to the ordinance the board
would want to consider, based on what was in the Comprehensive Plan. She thought the board could discuss it in the
near future, perhaps at the next meeting.
The
board agreed to the following ordinance changes and additions which will be
presented at a Public Hearing on Tuesday, January 28, 2020. After that they will be presented to voters
at March Town Meeting.
Place
under §105-4.D ‘Nonconforming structures’
(9) Low
Retaining Walls in the Shoreland District less than 24 inches in height for
erosion control.
Retaining
walls that are not necessary for erosion control shall meet the structure
setback requirement, except for low retaining walls and associated fill
provided all of the following conditions are met: (a) The site has been previously altered
and an effective vegetated buffer does not exist; (b) The wall(s) is(are) at least 25 feet
horizontal distance, from the normal high-water line of a water body, tributary
stream, or upland edge of a wetland; (c) The site where the retaining wall
will be constructed is legally existing lawn or is a site eroding from lack of
naturally occurring vegetation, and which cannot be stabilized with vegetative
plantings; (d) The total height of wall(s), in the
aggregate, are no more than 24 inches; (e) Retaining walls are located outside
of the 100-year floodplain on rivers, streams, coastal wetlands, and tributary
streams, as designated on the Federal Emergency Management Agency’s (FEMA)
Flood Insurance Rate Maps or Flood Hazard Boundary Maps, or the flood of
record, or in the absence of these, by soil types identified as recent flood
plain soils. (f) The area behind the wall is
revegetated with grass, shrubs, trees, or a combination thereof, and no further
structural development will occur within the setback area, including patios and
decks; and (g) A vegetated buffer area is
established within 25 feet, horizontal distance, of the normal high-water line
of a water body, tributary stream, or upland edge of a wetland when a natural
buffer area does not exist. The buffer area must meet the following
characteristics:
[1] The buffer must include shrubs
and other woody and herbaceous vegetation. Where natural ground cover is
lacking the area must be supplemented with leaf or bark mulch; Shapleigh
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[2] Vegetation plantings must be in
quantities sufficient to retard erosion and provide for effective infiltration
of stormwater runoff; [3]
Only native species may be used to establish the buffer area; [4] A minimum buffer width of 15
feet, horizontal distance, is required, measured perpendicularly to the normal
high-water line or upland edge of a wetland; [5] A footpath not to exceed the
standards in Section 105-51.B(1)(a) may traverse the buffer.
(h) All approved plans shall require
confirmation in writing by a licensed surveyor that the placement of the
structure is correct per the specifications approved by the Planning Board.
[1]
Side setbacks for structures shall not apply to low retaining walls.
~~~~~~~~~~~~~~~~~~~~~~ Place
Under §105-4.D ‘Nonconforming structures’
New Accessory Structure
in the Shoreland District
a) On a non-conforming lot of record on
which only a residential structure exists, and it is not possible to place an
accessory structure meeting the required water body, tributary stream or
wetland setbacks, the code enforcement officer may issue a permit to place a
single accessory structure, with no utilities, for the storage of yard tools
and similar equipment. Such accessory structure shall not exceed eighty (80)
square feet in area nor eight (8) feet in height, and shall be located as far
from the shoreline or tributary stream as practical and shall meet all other
applicable standards, including lot coverage and vegetation clearing
limitations. Additionally the following apply:
1) In
no case shall the structure be located closer to the shoreline or tributary
stream than the principal structure. 2) In
no case shall the structure be located within 10 feet of a side lot line or 25
feet from the edge of the road or right-of-way. 3) At
no time shall the structure be expanded. 4) The
structure shall not be used for habitation.
b) Section
105-35 of the ordinance does not apply when the criteria in this section are
met.
~~~~~~~~~~~~~~~~~~~~~~~
Proposed Amendment to Zoning Ordinance
§105-15 §105-15. Definitions
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Planning Board Minutes – 1/14/2020 Page
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Retaining Wall – Retaining Wall is a
structure that retains (holds back) any material (usually earth) and prevents
it from sliding or eroding away. It is designed to resist the material pressure
of the material it is holding back.
Low Retaining Wall – A low retaining
wall is considered to be a wall less than 24 inches in height measured from the
base of the wall to the top of the wall. The base is considered the area exposed that can be seen upon visual
inspection. ~~~~~~~~~~~~~~~~~~~~~~
Proposed
Amendment to Zoning Ordinance §105-17 §105-17.
Land uses. RP SD GP
FD SP Low Retaining Walls NO CU YES
NO CU ~~~~~~~~~~~~~~~~~~~~~~
Proposed
Amendment to Zoning Ordinance §105-26 §105-26
‘Stormwater runoff’. A. Surface water runoff shall be minimized and
shall be detained on-site if possible and practicable. If it is not possible to
detain water on-site, downstream improvements to the channel may be required of
the developer to prevent flooding caused by this project. The natural state of
watercourses, swales, berms, terraces, wooded areas and floodways or
rights-of-way shall be maintained as nearly as possible. The design period is
the -------------------------------------
Other:
Madge
B. stated that she spoke with Tom Cashin who had been a member of the Planning
Board in Acton for a long time, and asked if he would come and speak about
setbacks with respect to wetlands. She
believed Steve F. had brought it up at a previous meeting and the fact Acton’s
requirements are different from Shapleigh’s ordinance. Madge thought it would be interesting to hear
more about what Acton does. She noted
both towns share so much in the way of water.
Roland
L. noted that Acton allows 20% lot coverage, whereas Shapleigh only allows
10%. He hears comments about the Acton
side and how waterfront properties have much larger structures. The new structures seem huge.
Madge
B. didn’t mind asking Mr. Cashin about that but she wanted to talk about what
was ‘pro-active’ to protect water quality. Roland agreed. Madge said water
in this town was so important, including for the tax base. Madge said she was not saying the way Acton
does things is the right way, she just wanted more information about what they
do.
Madge
B. asked if the members had any objections to having Mr. Cashin come to a
meeting. Roger A. said he did not. Roland L. thought it would be interesting to
open dialog. He thought it would be a
good idea when having projects that straddle the line, to have Acton notified
of what was going on and ask their opinion. Barbara F. noted that Acton or any abutting town is notified of projects
that abut both towns. Shapleigh
Planning Board Minutes – 1/14/2020 Page
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She
said she mails the agenda, minutes and application to both the Planning Board
and Selectmen. She added that she
typically does not have any feedback. Roger A. added that with respect to subdivision the school district gets
notified as well for comment. He said we
never get a comment but they have the opportunity to let the board know of any
concerns. He said all abutting
properties are notified.
-----------------------------------
Roger
A. stated that he was asked this week about the road for the Chadbourne
subdivision on Square Pond, West Shore Drive and Apple Road in Acton. He said the findings placed a limitation of 2
years to complete the private way and because Mr. Chadbourne hasn’t sold a lot,
he wants to extend the deadline to complete the road. Roger said he told him that he would have to
file an amendment to subdivision approval, because it was a change to the
conditions of the approval. Roger said
any change to the conditions of an approval need to come back before the board.
------------------------------------ Roger
A. asked CEO Demers if Adrianne Knox – Knox Autobody – would be coming in for
an amendment to his approval. At this
time Adrianne placed an addition onto the structure of his business without
Planning Board approval. CEO Demers
stated that he would be coming in soon. He said Mr. Knox had been on vacation
this past month.
CEO
Demers stated that he sought legal advice as to what is or isn’t an amendment
to a Conditional Use Permit. CEO Demers
stated in June the board had discussed what did or did not constitute a change
in use for a CUP. He said since that
time he has spoken with Durwood Parkinson about several scenarios.
CEO
Demers said that with Keepin It Local the new structure was not a change of
use, because everything was staying the same. Ann H. said the business is staying the same. CEO Demers said even the structure itself is
staying the same from what was approved, it was demolished, rebuilt the same
size and the same location. He said with
an in-home day care, if the day care is adding on a bedroom for personal use,
no change of use. If the same day care
is adding on another room to facilitate more children that would be a change to
the approval and use.
CEO
Demers stated with respect to the Knox business, the permit was issued in 2018,
and because he is putting on an addition that is a change of use. He said that moving forward, expansions to a
business will come before the Planning Board.
Note: CUP to Own and Operate an Auto Body Collison
Repair Facility on Tax Map 3, Lot 4 (359 Shapleigh Corner Road) was approved in
April 2004. At that time an engineered
site plan was presented showing a gravel parking area, 48’ x 60’ garage, 30’ x
40’ spray booth room and a 12’ x 16’ storage shed. Mr. Knox was also approved
to sell up to 4 vehicles, and the total number of vehicles on site for sale or
service shall not exceed 14.
CEO
Demers said with Durwood Parkinson’s advice he will send an addition to a business
to the board in the future. He said with
respect to the Knox business they will be coming back to the Planning Board for
an amendment. He said they want to up
the number of vehicles allowed, they need a new parking plan, as well as plans
for the new structure. He said they
would be in soon with a plan.
Shapleigh
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Roger
A. stated that any change to an approved conditional use, that change has to
come back before the Planning Board. CEO
Demers stated, “Right”. Roger said that
if the conditional use existed before the writing of the chapter, then they
have to come back if there is a change in materials or 25% floor space. CEO Demers said with respect to the Knox
place it may have been interpreted wrong.
CEO
Demers stated another scenario was with a gravel pit, if there is an approved
gravel pit and someone puts a house on the property as a residence, it doesn’t
have to come back before the board as it has nothing to do with the business. Roger A. agreed, it would only require a
growth permit. CEO Demers asked if
anyone had any questions. The board
didn’t have any.
Roger
A. said that with respect to Keepin it Local, that even though they tore down
the existing structure and put up a new one the same size, the board should
have been informed because they could have changed some of the conditions,
because it was going to be a new structure. He felt they should have come back because it was a brand new
conditional use and a change of use of the existing structure, to a new
structure. CEO Demers stated that the CEO was Norm Hutchins and he determined
there was no change of use, basically it is up to the CEO’s discretion if there
is a violation or not.
Roger
A. stated that any conditional use granted, subdivision, etc. comes back to the
board if there is a change from the approval or conditions of the approved use.
Roger
A. also brought up a recent conversation with a developer who asked if he could
put in a 4 lot minor subdivision now and then wait 5 years and put in another 3
lots as a minor. Roger said he told him
that time was not an issue, if you create a minor now and down the road add to
it, it will become a major and an interior road will be required. Roger said he certainly could do a minor now
but in the future it will turn into a major and will be required to follow all
the conditions imposed for a major.
Nothing
more was discussed.
*************************
Growth Permits There
are Growth Permits available.
*************************
The Planning Board meeting ended at 7:20
p.m.
~~~~~~~~~~~~~~~~~~~~~~~
NOTE: The winter hours
are in effect thru March 31st, the meetings now begin at 6:30 p.m. and
any scheduled public hearing begins at 6:00 p.m.
The
Planning Board meets the 2nd and 4th Tuesday of each
month unless it falls on a holiday or Election Day. Should there be a
cancellation due to a storm event, holiday or Election, the meeting will
typically be held the following Wednesday, also at 7:30 p.m. Please contact the
Land Use Secretary if there is a question in scheduling, 207-636-2844, x404. Shapleigh
Planning Board Minutes – 1/14/2020 Page
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The next meeting will be held on
Tuesday, January 28, 2020.
Respectfully
submitted, Barbara
Felong, Land Use Secretary
|
Planning Board
April 01, 2020 4:22 PM