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Shapleigh Planning Board

Minutes

Tuesday, October 22, 2019

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

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

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The minutes from Tuesday, October 8, 2019 were accepted as read.

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

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Conditional Use Permit – Earth Moving in the Shoreland District to Replace Retaining Wall – Map 44, Lot 25 (Silver Lake Road) – Roger Pratt, Applicant & Owner

Mr. Pratt was present for the review of the application, along with his wife Helen.

Provided along with the application was a sketch plan which depicted a wall running along Silver Lake, one section being 22 feet wide x 64 inches high and the other being 24 feet wide x 64 inches high. There is also a set of stairs to the water running 12 – 13 feet, with 11 risers noted. 14 trees are depicted on the plan along with their circumference, and the plan states that 3 of these trees will be removed. There is a notation on the plan that states ‘Beach – Variable Width’.

The detailed description of the project is written as follows:

Replace existing stone wall at water’s edge with concrete landscape blocks 16” x 4’ each. The existing stone wall is cracked, leaning and in danger of falling. The wall extends the entire 50 feet of waterfront, with 5 foot stairs in approximate center. There are 11 steps leading to top of wall. We are proposing replacing the stone wall with concrete 16” x 4’ Loc-Blocks which are available at Pepin Precast. The stairway will need to be moved back so that it will no longer extend onto the beach, causing erosion when the lake is high. Stairs will be even with the front of the wall. We will need to remove the 3 trees indicated to complete the work, and prevent destruction of the replacement wall from roots. The wall is on average 60” to 65” in height. We are proposing to pour concrete footings to place the blocks on, with 4 rows of blocks to keep wall at a uniform 64” across length of wall excluding the staircase. There is currently little to no vegetation on existing ground at top of wall, and would like to maintain the natural landscape of sand and pine needles as it is currently.

Roger A. asked Mr. Pratt to brief the board on what he wanted to do. Mr. Pratt began by saying that he owned a property on Silver Lake, and he would be replacing a wall which was approximately 50 feet long and it included a set of stairs. He stated that the new wall would be approximately 64 inches high. He

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added that there would be a few trees to cut. Madge B. said there would be three trees. Mr. Pratt stated that regarding the trees the board saw on the site inspection, he might trade out one of the trees, meaning one of the trees he pointed out might stay but another may be removed.

Roger A. asked if he had an engineer’s stamp / approval for the wall. Mr. Pratt stated that he hadn’t gotten the information yet, because Pepin wanted a copy of his sketch plan and he hadn’t done that yet. He said the block company would be the ones giving the engineered information. Roger asked if the board wanted to table the application until the information was received? Mr. Pratt said he wasn’t sure if he had to get the information to the CEO Demers or the board, he should have asked the question. Roger said the information has to be provided to the board for the Conditional Use Permit, then Mr. Pratt would go to the CEO for the building permit. Madge B. and Roger stated that the ordinance calls for it. Mr. Pratt said he did inquire already, he just didn’t get the information yet.

Roger A. asked if there were any abutters in the audience. Most everyone in the audience was an abutter because they had an application before the board. Roger asked if there were any comments or questions regarding the height of the wall, because if the application is tabled, the abutters will not be notified again. The next meeting to review the application will be November 12. There were no comments.

Mr. Pratt asked if he didn’t get ice on the lake, because he needed it in order to do the wall, would he have to come back to the board to go through the permitting process again? Roger A. stated the Conditional Use Permit and Building Permit would be good for two years. Roger said when the board does approve the application, the board will set a date for when the wall will be completed. He said if Mr. Pratt cannot meet that he will either have to come back to the board or go to the CEO for an extension of time, depending on how the board conditions the approval. Roger said the DEP permits are usually valid for three years. Mr. Pratt asked if the board got a copy of the Permit by Rule. Roger stated that the board did have a copy. Mr. Pratt noted that he did not. Barbara F. stated that CEO Demers receives a copy and he forwarded it to the board. Barbara noted that emails to Mr. Pratt had been kicked back to her, so perhaps that happened with this permit. Roger said the Permit by Rule is a 14 day notification, if the applicant did not get notified, it means it is probably approved with no issues.

Madge B. moved to table Mr. Pratt’s application until he notifies Barbara F. that he has the engineered stamp. She added that at that time the board will want to know what trees will be removed and where the replacement trees will be placed. Maggie M. 2nd the motion. All members were in favor.

Nothing further was discussed.

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Conditional Use Permit – Earth Moving in the Shoreland District to Replace Retaining Wall – Map 44, Lot 24 (18 Silver Lake Road) & Map 44, Lot 23 (16 Camp Road) – Kevin & Sheila Cash, Applicants & Property Owners

Mr. and Mrs. Cash were present for the review of the application. Mr. Pratt also sat in on the review of the application, as he was the contractor doing the work.

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Previously provided along with the application for 18 Silver Lake Road was a picture of the existing stone wall to be replaced, along with a sketch plan. The sketch plan depicted the location of the existing structure, septic tank & leachfield location, well point, and existing retaining walls. One wall appears to be 2 feet from the high water mark and a second one appears to be 10 feet from the high water mark. The width of the property at the shoreline is noted as 50 feet. Also noted on the plan is the location of Silver Lake Road.

The detailed description of the project is as follows:

We purchased the property on 18 Silver Lake Road in 2005, which was beyond repair due to its lack of use over many years. At this time we found two existing stone walls both located on the lake side of the structure. One being 14’ from the shoreline, the other at shoreline which was almost completely covered and buried due to years of high water issues. This past spring was the worst we have experienced with the erosion and wall collapsing. We feel with the replacement to a Loc-Block system it would finally stop the issue we face every spring.

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Previously provided along with the application for 16 Camp Road were three pictures of an existing block wall, along with a sketch plan. The sketch plan depicts the existing structures, septic tank & leachfield location, well point, and four retaining walls. Two located between the structure and Camp Road and two between the structure and Silver Lake. The wall closest to Silver Lake appears to be approximately 9 feet from the high water mark.

The detailed description of the project is as follows:

We purchased this property 16 Camp Road in 1984. Around 1990 we installed a block wall in front of an existing stone wall that had been collapsing in some areas. We believe over the years due to the hydrostatic ground pressure from the hill behind it has caused the wall to bulge forward. Also over time the high water level and ice has caused the bottom course of block to disintegrate. The ground also in the front of this wall now erodes every spring. The top course of the wall now extends approximately 1 foot from its original placement. We feel this is now becoming a safety issue.

Members asked if they should table the Cash applications as well, as there is no engineers stamp for those either. Ann H. & Madge B. noted that 18 Silver Lake Road was only 2 feet in height, so that didn’t need the engineers ok.

Madge B. made the motion to table 16 Camp Road (Map 44, Lot 23), pending the engineers stamp. Maggie M. 2nd the motion. All members were in favor.

Roger A. asked about 18 Silver Lake Road, if once the wall is removed and replaced, would there be any plantings behind it? Mr. Cash stated that there would be three trees being removed. Roger asked if there was a replanting plan? Mr. Pratt said with respect to the ordinance, he was looking at the point system, using the DEP rules which is a 25 by 50 foot area, and based on this he didn’t need to add additional trees. Roger stated that under §105-4.D(7)(1) it states: ‘Trees removed in order to relocate a structure must be replanted with at least one native tree, six feet in height, measured from the base of the trunk to the top of the tree, for every tree removed. If more than five trees are planted, no one species of tree shall make up more than 50% of the number of trees planted. Replaced trees must be planted no further from the water

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or wetland than the trees that were removed. Trees shall be planted greater than five feet from side lots lines, and shall create a well-distributed stand of trees. These replanted trees shall be flagged with fluorescent tape no less than 18 inches in length which shall not be removed except by the Code Enforcement Officer upon inspection. He noted this is to verify the tree had been planted.

Mr. Plant stated there is also a section about the point system, which he felt contradicted what Roger read, so he felt one had to go. CEO Demers stated that the point system pertained to hazard trees, this is for trees that are being removed for something different. CEO Demers stated the Planning Board is considering the removal of these trees to facilitate the structure and in this scenario the applicant is required to replace the trees one for one. Mr. Pratt said they would have to move the trees back, they can’t go back against the wall. Roger A. agreed that if the tree was put at the same distance, it would once again push the wall. Mr. Pratt said if they have to replace a few trees, they need to go back farther. Mr. Cash stated that he had no issue replacing the trees. Roger said the replacement trees have to be on the plan, so that when the CEO goes to the site, he can make sure they are placed as approved.

Mr. Pratt wanted to go back to the point system. Roger A. stated that the points are not considered. Mr. Pratt stated, “In the case of my lot, the point system has to apply.” Roger said, “Nope”. Roger pointed out that he just read the paragraph that applies. Mr. Pratt said the trees have nothing to do with the structure. He said the number of trees on his lot, if he isn’t doing anything on his lot, it still says in the point system I can thin some of the trees out and get rid of some. Steve F. stated, “Outside of the 75 foot mark”. Mr. Pratt stated, “It says in the buffer zone, between the water and 100 feet back. It says in the point system from the DEP guidelines”. He said it also tells you the size of the trees. He stated that in Shapleigh’s rules you have a point system too, but it isn’t exactly the same as the DEP’s. Roger agreed noting the Town can be more stringent. Mr. Pratt agreed, and noted that Shapleigh’s is, but they still have more than the point system in the ordinance. He said the ordinance says that we can take trees out of there without any problems. Ann H. and CEO Demers both noted that this was listed under Hazard Trees (§105-51.1). Mr. Pratt said the DEP doesn’t say hazard trees. Ann stated that it didn’t matter, that is what Shapleigh has.

Mr. Pratt stated that under the B (§105-51.1) it talks about selective cutting. Roger A. stated, “Before you get too far, the paragraph specifically states ‘Hazard trees, storm damaged trees, and dead tree removal’. It says nothing about a structure and trees to be removed.” Mr. Pratt said he was talking about the selective cutting of trees. Roger stated in order to cut you have to prove it is going to be a hazard tree. He said that he had to prove it was storm damaged. Ann H. agreed. Roger stated, “Unless you get a licensed arborist to come in and state that is what it is, then you would have a leg to stand on, otherwise we are telling you those you have to replace. There is no such thing as a point system. It is not there.”

Mr. Cash said he was happy to be getting some answers. He said there was something about in 10 years you are allowed to take a percentage. Roger said, no. Ann H. said what he was referring to was the height of the tree, you can take a percentage. Mr. Cash said that when a tree is relocated, it has to be within a certain area. Roger stated there was no exemption but the board is going to say it cannot go back in the exact same location because it will damage the wall. Roger said there needs to be a new location drawn on a plan for the trees for the board to approve. Roger said the new tree will be placed per the plan and the CEO will verify the location. Mr. Cash asked if it mattered what type of tree it was? Roger said that because there were only three trees to be replaced, the type didn’t matter, as long as they are a native species. If there were five, then he would have to have more than one species. Ann also stated it had to

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be a native tree. Roger said if it is more than three, the board wants diversity, so they would request the type of tree to be noted on the plan. Roger also added that the trees cannot be right on the property line, they need to be five feet away.

Mrs. Cash asked when the trees should get planted? Madge B. stated that they probably will want to plant in the spring, after the excavation is completed. Roger stated that there would be a date of completion given for the tree plantings as well. Mr. Pratt asked what the diameter of the tree had to be. Roger stated there was no diameter reference, it had to be six feet in height.

Roger A. stated that without a planting plan for the trees, the board should table this application as well.

Madge B. moved to table the application for 18 Silver Lake Road (Map 44, Lot 24), pending the replanting plan for the three trees to be removed and replaced. Maggie 2nd the motion. All members were in favor.

Roger A. noted that the board needs the engineering stamps for the two 64” walls and the replanting plan for the trees to be replaced for 18 Silver Lake Road and Mr. Pratt’s Silver Lake Road property. Mr. Pratt stated he wasn’t sure exactly what trees or how many. He thought only three, but not sure which yet. Mr. Pratt said he would get the information to Barbara.

Madge B. asked if they understood why trees are so important. Mr. Cash and Mr. Pratt said, yes. Mr. Pratt noted there were lots of trees on his property at this time. Madge said it was extremely important for water quality.

Roger A. said with the respect to the removal of material, it cannot go to the transfer station. He stated that if it is going to another location in Shapleigh, that location may need a Conditional Use Permit to accept it, depending on the number of yards. Mr. Pratt said the wall he is removing is all blocks, and they will be reused up top, and a neighbor also wants to use a few. He asked if this was a problem? Roger asked if he was in the Shoreland zone, was he 100 feet from the water? Mr. Pratt stated that he was. Roger said he would only need a permit from the CEO if it is greater than 100 feet from the water.

Nothing further was discussed.

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Conditional Use Permit – Earth Moving in the Shoreland District for Shoreline Stabilization – Map 23, Lot 1 (37 Starboard Lane) – Michael Roberts, Applicant & Property Owner

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

Previously provided along with the application, was a sketch plan which depicted the location of the existing house, garage and decks, areas called ‘stumps grindings’, areas called ‘sand now’, the location of the existing retaining walls, and the shoreline setback, which is located approximately halfway thru the

middle of the existing garage. All other features on the plan, except the rear portion of the garage, are within 100 feet of the high water mark.

The detailed description of the project is as follows: Bring in 52 yards of sand to replenish and level existing sandy area.

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The application was tabled by the Planning Board on July 23, 2019, pending further information which included a DEP Permit by Rule and revegetation plan; additionally an extension of time was granted on September 24, 2019.

This evening, provided was a copy of the Permit by Rule Notification Form dated September 18, 2019. The DEP Bureau of Land Resources Field Determination Form, noted the Contact as Jim Logan of Buxton, Maine; Property Owner as Michael Roberts of Londonderry, New Hampshire, and Staff as Claire Briggs. The memo reads as follows: On August 12, 2019, Department staff met on site with Michael Roberts and Jim Logan at 37 Starboard Lane in Shapleigh. The site is located on Mousam Lake a Great Pond as defined in the Natural Resources Protection Act (NRPA), 38 M.R.S. §480-B(5). Department staff observed an existing landing area between the house and the water that was held by a large retaining wall. The area between the retaining wall and the house held sand. The addition of sand to level the area will create better drainage for stormwater runoff. The additional sand is not likely to cross into the lake, passed the retaining wall or proposed vegetative buffer. Department staff is using discretion to allow for fill within 25 feet of the lake. Enhancement of the existing vegetative buffer would be eligible for review under Section 2 of a Permit by Rule. Activities in, on, over or within 75 feet of a Great Pond may require a NRPA permit. Erosion control devices must be installed and maintained on the project site during any soil disturbance activity. A Stormwater Management Law PBR or Maine Construction General Permit “NOI” and “NOT” must be filed with the Department if more than 1 acre of area is going to be disturbed on the project site at any given time during construction. Received: 8/5/2019; Site Visit 8/12/2019; Completed: 9/25/2019.

In addition, received was a Site Location Plan created by Longview Partners, LLC – Environmental Permitting Specialists, Plan Date: 8/23/19. On the Site Location Plan it referred to Section 2 Permit-by Rule Notification and noted Statement of No Practical Alternative. The statement read as follows: There is no practical alternative to the proposed soil disturbance within 75’ of Mousam Lake. The area proposed to be leveled & shimmed with 4” of fine sand and the proposed access stairways are located so as no alternatives to their placement are available. The area to be leveled and shimmed is located in between an existing dwelling and the lake. The location of the access stairway also cannot be relocated as the lot slopes steeply from the area of the existing dwelling to the lake.

Lastly received was a plan entitled Sec. 2 & 20 Permit-by-Rule Notification and Restoration Plan, also created by Longview Partners, LLC, dated 8/23/19. The plan notes are as follows: Fire pit to be relocated 25’ minimum to high water line of lake; Existing concrete retaining walls; This area to be leveled/shimmed with <4” thickness of fine sand for passive recreation; Mousam Lake; Proposed stairs to access lower level; Erosion & Sediment Control (see detail attached); Existing Dwelling; Place stump grindings and supplement this area with woody and non-woody native species. Plan Notes: This plan is a composite of property boundary information per Town of Shapleigh Tax Map, Maine Office of GIS 2’ Topographic Contours & Maine Office of GIS Aerial Photograph; Map is furnished for planning purposes only and shall not be reproduced or utilized by anyone other than the parties named without express written consent of Longview Partners, LLC.

Roger A. asked Mr. Roberts for the record to let everyone know why he was before the board. Mr. Roberts stated this project started back in July, from there it progressed nicely, getting a letter from the field visit that took place in August, and the project was approved in September. He stated the report shows that after what the DEP saw, the project is allowed to progress as requested. Mr. Roberts provided

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members with the Permit by Rule. Mr. Roberts stated that the project as outlined in the report would be costly but better for the lake, as well as himself.

Roger A. reviewed the DEP information. Roger stated that in the areas being reclaimed it stated the DEP was asking for stump grindings and native species of plants. Mr. Roberts said this was discussed at previous meetings, that additional stump grindings were needed, as well as additional plantings. He stated that erosion needed to be controlled. Roger said that there is an existing concrete wall and material has either washed away or has blown away, so the area needs to be re-stabilized. Roger noted to Mr. Pratt that even though there is a concrete wall, there still needs to be erosion control measures such as mulch and plantings added, as well as Best Management Practices. Roger said that he is being allowed to bring in 4 inches of sand and place stump grindings on the top. Mr. Roberts disagreed with that statement, that the front area 25 feet from the second wall was just going to be sand, no stump grindings. He said beyond the 25 feet will be the stump grindings. Roger agreed. Mr. Roberts stated the original permit was for restoration which was granted, then other things were discussed and added.

Roger A. asked what the proposed time frame was for the mulch, etc.? Mr. Roberts stated that the stump grindings would be the last part of the project so they were not tracking over them while doing the other two parts of the project, which include tying in the left and right side with the wall, and moving the fire pit and set of stairs. He stated the sand and stump grindings would be after the restoration of those two areas. He said the trees he will be starting to plant now. Roger said the board needs a time frame as to when the plantings will be done per the ordinance. He said after a date of completion is set, the board will decide whether or not you have to come back to the board, or have the CEO set a new date of completion. Mr. Roberts stated that the DEP allows 3 years, he asked if the Planning Board only allowed 2 years. Roger said that was correct. Mr. Roberts said that that meant the permit would be good for 2 years from the date the board signed it. He said he would like to do it all in one season, but he didn’t have estimates to complete the project yet.

Steve F. stated that best management practices have to be up during the length of the project, he asked Mr. Roberts if he wanted to have a silt fence up for 2 years? Steve said he was reading the Permit by Rule. Mr. Roberts stated that they explained to him that when he started moving earth, the fire pit and stairs, that is when they want to see the silt fence up. He said when that is done, then it can come down, according to the DEP. The board thought that made sense. Roger added that where the work was being done in the areas he spoke about, BMP needs to be in place until that work is completed. Mr. Roberts agreed. Steve read from the DEP Permit by Rule the following: ‘Erosion control devices must be installed and maintained on the project site during any soil disturbance activity’. Mr. Roberts said, “Correct”. He believed with the restoration of the bark mulch there was no soil disturbance, and with the restoration of the sand the wall was there, as well as the stump grindings. He stated, “The soil disturbance will be the fire pit and the stairs”. Roger A. stated that if one side is completed before another, CEO Demers may allow him to pull the silt fence on the side that is completed.

Roger A. stated the conditions of permit would be as follows:

1) Best Management Practices will be maintained until the there is no longer any soil disturbance, as stated in the Permit by Rule. A person licensed in erosion control practices by the MDEP must be on site during the project until the area is stabilized and project is completed.

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2) The revegetation, which includes woody (trees) and non-woody vegetation is to be completed by October 30, 2021. If for any reason this date cannot be met, the Code Enforcement Officer (CEO) must be notified.

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

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

Maggie Moody made the motion to approve the Conditional Use Permit for earth moving in the shoreland district per the plans provided and Field Determination from the DEP on Map 23, Lot 10, with the above stated conditions. Madge B. 2nd the motion. All members were in favor. By a vote of 5 – 0, the motion passed unanimously.

Roger A. told Mr. Roberts that he needed to go to CEO Demers for permits.

Nothing further was discussed.

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Findings of Fact

1. The owner of Shapleigh Tax Map 23, Lot 10 (37 Starboard Lane), is Roberts Family Revocable Trust, Michael E. & Beth-Ann Roberts, Trustees of 86 Nashua Road – Box 792, Londonderry, NH 03063.

2. The property itself is located in the Shoreland District and according to the assessor the property contains 2.32.

3. The detailed description of the project is as follows: Bring in 52 yards of sand to replenish and level existing sandy area.

4. Received was a sketch plan which depicted the location of the existing house, garage and decks, areas called ‘stumps grindings’, areas called ‘sand now’, the location of the existing retaining walls, and the shoreline setback, which is located approximately halfway thru the middle of the existing garage. All other features on the plan, except the rear portion of the garage, are within 100 feet of the high water mark.

5. Received was a copy of the Permit by Rule Notification Form dated September 18, 2019. The DEP Bureau of Land Resources Field Determination Form, noted the Contact as Jim Logan of Buxton, Maine; Property Owner as Michael Roberts of Londonderry, New Hampshire, and Staff as Claire Briggs. The memo reads as follows: On August 12, 2019, Department staff met on site with Michael Roberts and Jim Logan at 37 Starboard Lane in Shapleigh. The site is located on Mousam Lake a Great Pond as defined in the Natural Resources Protection Act (NRPA), 38 M.R.S. §480-B(5). Department staff observed an existing landing area between the house and the water that was held by a large retaining wall. The area between the retaining wall and the house held sand. The addition of sand to level the area will create better drainage for stormwater runoff. The additional sand is not likely to cross into the lake, passed the retaining wall or proposed vegetative buffer. Department staff is using discretion to allow for fill within 25 feet of the lake. Enhancement of the existing vegetative

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buffer would be eligible for review under Section 2 of a Permit by Rule. Activities in, on, over or within 75 feet of a Great Pond may require a NRPA permit. Erosion control devices must be installed

and maintained on the project site during any soil disturbance activity. A Stormwater Management Law PBR or Maine Construction General Permit “NOI” and “NOT” must be filed with the Department if more than 1 acre of area is going to be disturbed on the project site at any given time during construction. Received: 8/5/2019; Site Visit 8/12/2019; Completed: 9/25/2019.

6. Received was a Site Location Plan created by Longview Partners, LLC – Environmental Permitting Specialists, Plan Date: 8/23/19. On the Site Location Plan it referred to Section 2 Permit-by Rule Notification and noted Statement of No Practical Alternative. The statement read as follows: There is no practical alternative to the proposed soil disturbance within 75’ of Mousam Lake. The area proposed to be leveled & shimmed with 4” of fine sand and the proposed access stairway are located so as no alternatives to their placement are available. The area to be leveled and shimmed is located in between an existing dwelling and the lake. The location of the access stairways also cannot be relocated as the lot slopes steeply from the area of the existing dwelling to the lake.

7. Received was a plan entitled Sec. 2 & 20 Permit-by-Rule Notification and Restoration Plan, also created by Longview Partners, LLC, dated 8/23/19. The plan notes are as follows: Fire pit to be relocated 25’ minimum to high water line of lake; Existing concrete retaining walls; This area to be leveled/shimmed with <4” thickness of fine sand for passive recreation; Mousam Lake; Proposed stairs to access lower level; Erosion & Sediment Control (see detail attached); Existing Dwelling; Place stump grindings and supplement this area with woody and non-woody native species. Plan Notes: This plan is a composite of property boundary information per Town of Shapleigh Tax Map, Maine Office of GIS 2’ Topographic Contours & Maine Office of GIS Aerial Photograph; Map is furnished for planning purposes only and shall not be reproduced or utilized by anyone other than the parties named without express written consent of Longview Partners, LLC.

8. The board reviewed the pertinent sections of the Zoning Ordinance and concurred the application and information as presented met the performance standards, with conditions.

9. A notice was mailed to all abutters within 500 feet of the property on July 10, 2019. Meetings were held on Tuesday, July 9. 2019, Tuesday July 23, 2019, Tuesday, Tuesday, September 24, 2019 and Tuesday, October 22, 2019. A site inspection was done on July 23, 2019 by members.

10. The Planning Board unanimously agreed to approve the Conditional Use Permit for earth moving in the Shoreland District for shoreline stabilization per the information provided by the applicant and MDEP, for Map 23, Lot 10, with conditions.

11. The conditions of approval are:

1) Best Management Practices will be maintained until the there is no longer any soil disturbance, as stated in the Permit by Rule. A person licensed in erosion control practices by the MDEP must be on site during the project until the area is stabilized and project is completed.

2) The revegetation, which includes woody (trees) and non-woody vegetation is to be completed by October 30, 2021. If for any reason this date cannot be met, the Code Enforcement Officer (CEO) must be notified.

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

12. Additional requirement:

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

Motion:

After careful consideration and a review of all material presented to the Board, a motion was made on Tuesday, October 22, 2019, to approve the Conditional Use Permit for earth moving in the Shoreland District for shoreline stabilization per the information provided by the applicant and MDEP, on Map 23, Lot 10, with three conditions.

Vote:

By a unanimous vote of 5 – 0, the motion to approve the Conditional Use Permit for earth moving in the Shoreland District for shoreline stabilization per the information provided by the applicant and MDEP, on Map 23, Lot 10, with three conditions, was accepted.

Decision:

The Conditional Use Permit for earth moving in the Shoreland District for shoreline stabilization per the information provided by the applicant and MDEP, on Map 23, Lot 10, with three conditions was approved.

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After-the-Fact Conditional Use Permit – Earth Moving in the Shoreland District to Replace Retaining Wall – Map 44, Lot 32 (210 Silver Lake Road) – Brian Varney, Applicant & Property Owner

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

Provided along with the application, was the signed DEP Permit by Rule, Description: Looking to replace hazardous retaining wall & patio, dated as accepted on October 7, 2019. A sketch plan was provided depicting a 6’ x 10’ shed; location of the leach field & subsurface wastewater disposal system (a copy of the actual SWDS application, dated 11/5/04, drafted by John Large, SE #7 was provide as well); 24’ x 28’ house & 5’ x 16’ porch; the location of four retaining walls, one wall to be replaced; the location of the well & patio to be replaced; and the location of the beach, sandy area, mulch/blueberry bushes & mulch/plant areas, all in relation to the lake, side lots lines & Silver Lake Road. It is noted on the plan that the house is 70 feet from the lake.

The Detailed Description of the Project is as follows:

The activity that we are proposing to perform is the replacement of an existing 31’ long, 4’ high (at its highest point) timber railroad tie retaining wall and an approx. 24’ x 24’ concrete/paver walkway and patio that has become a hazard to the home and homeowner. The new wall is to be

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located in the same location as the existing wall and the dimensions are to remain the same. The concrete and paver walkway and patio are to be replaced with concrete pavers manufactured by

Genest concrete and are to remain in the same location with the same dimensions as the existing. All MDEP erosion control practices are to be used during construction of the project and monitored by Roger Pratt a MDEP erosion control certified contractor with certification #367.

Mike Carbone from Action Property Services, Inc. has my permission to act on my behalf at the planning board meeting.

Roger A. opened the application review by stating Mr. Varney had an after-the-fact permit. He asked Mr. Varney to let the board know what he wanted to do. Mr. Varney stated he was looking to replace a wall, concrete walkway and patio. Roger asked Mr. Varney if there was a patio there before? Roger said that because you cannot occupy a property by more than 10% with structures, he was not sure if Mr. Varney would be able to have the patio. Mr. Varney said there was a concrete patio there before, and it was becoming a hazard due to ice, which also went into his basement and he noted had to rake the ice out in the spring. He said because of the ice, this is why the patio he described as a hazard. He stated the wall replaced was made out of wood and is now Genest concrete blocks.

Roland L. asked if Mr. Varney had any photo’s depicting what was there prior to demolition. He said he would like evidence of what was there. Mr. Varney stated that he recently purchased the property, and the pictures he had are from last winter with the ice buildup and water. He said he didn’t have any pictures of the patio. He said he went to the Town’s assessing page but there were no pictures there that would help. Roland asked about the previous owner. Mr. Varney said it was a private sale and the pictures they have are from the area down by the beach, not the patio area. Madge B. stated, “So there is no real estate listing that would have included pictures?” Mr. Varney stated, “Correct”.

Mr. Varney stated that the border of the property is a combination of mulch and weeds. Ann H. asked about the area on the drawing the board received, the area that is depicted as 24’ x 28’, she wanted to know if that was the actual size of the patio. Mr. Varney stated that the actual size was 24’ x 24’. Ann asked if the well was in the middle of the patio, and if the patio would be put in around the well. Mr. Varney stated that was correct. Roger A. said it appeared the ground had been brought down 18 – 20” from the well area from what the board looked at on site. Madge B. agreed.

Roland L. asked, “Did the thought ever cross your mind that an activity of that scope and cost, that is that close to the water, might require a permit? Or that it should be approved over overseen by someone?” Mr. Varney stated that he was using the contractor’s advice. He assumed because the contractor was advising him and said he had built these things for a living for 30 years, and his father 30 years before that, the contractor said he had never had to pull a permit to replace a wall. Ann H. and Roland L. asked if he was DEP certified to work in the shoreland zone? Mr. Varney said he knew he wasn’t erosion control certified, but they did install erosion control measures and he noted that Mr. Pratt had volunteered to oversee those measures. Ann stated there are contractors that are not DEP certified but state that they can do the work. Mr. Pratt said he had been DEP certified before it was a requirement. Roger A. said he was certified in 2012. Mr. Pratt added that those working for him are also DEP certified.

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Roger A. stated that at this time, after looking at the site, he felt the patio would have to be scaled back, so that no more than 10% of the property would be occupied by structures. Roger said the rest of the area would have to be bark mulch or something that would prevent erosion, and on the left side looking from the lake, the area that had been cut, that wall has to be put in. Mr. Varney asked other than covering the

entire area in mulch, would there be other options? Roger said yes, anything that would prevent erosion control. He said the board can’t say what to use. An audience member asked if the board was talking about loam, sod, lawn? Roger said whatever the applicant wanted to come up with, the board can’t tell him what to do by law, because the board can’t impose cost onto applicants. The applicant can propose what he wants to do and then the board can approve or disapprove it. Mr. Varney asked if a lawn was acceptable in that location? Roger said that in the shoreland zone no fertilizer is allowed, and with the sand that is in that location, Roger didn’t think a lawn would grow. An audience member asked if Mr. Varney could bring in loam? Roger said the board can’t tell him what to do, but the board can disapprove something that would not work. Mr. Varney asked if he could replace what was there? Roger asked him if he had pictures of what was there? Roger said if he could prove something was there, he could replace it. Steve F. agreed, that if the patio was there prior to zoning, then it can be replaced. He said that because it is not there for the board to see, then the board can’t say you can do it. Madge B. noted that Mr. Varney might need a different contractor.

Mr. Varney said if he can’t find a picture of the patio, what was he going to have to do? Steve F. and Roger A. both stated that he would have to reclaim the area. Mr. Varney asked what that meant. Ann H. stated that there would be some type of erosion control, so soil doesn’t wash down into the water. She said there is a list of DEP approved erosion control measures she believed. Steve and Ann noted that York County Soils and Water could provide a list of what is approved or would work best in this area for erosion control measures. Ann said even York County Soils cannot tell you what to do but they can give recommendations. Mr. Varney believed the only thing that would help to prevent the area from eroding was a wall. He wondered if York County Soils would recommend a wall? Steve asked if he was speaking of a retaining wall on the side of the yard? Mr. Varney said, “Right”. Roger asked if there was a wall there previously? Mr. Varney said there were railroad ties. Roger asked if there was a picture? Mr. Varney stated there was not. Roger said even without a picture, as it stand today, the only thing to prevent erosion would be a wall.

Roland L. stated that Mr. Varney could slope the wall area back and add stump grindings, which is a course of ground-up stumps which are used to reduce if not eliminate runoff; and do some homework to come up with material and/or evidence of what was there, in order for the board to be able to take action in compliance with the ordinance. Ann H. stated that the picture from 2004 showed no evidence of a patio being there (taken from a Planning Board file for a previous approval for a wall replacement).

Steve F. thought there should be some evidence of what was there and he believed a wall makes the most sense in that location to prevent erosion. Roland L. said Mr. Varney could contact neighbors to see if anyone had a photograph the board could look at.

The board looked at the picture from 2004, regarding the wall that was removed according to the applicant, and they believed it did appear a wall would have been in that location. Roger A. thought the board could allow a wall to go back in. Madge B. was talking about the third wall in question that was not replaced yet. The other two retaining railroad tie walls had already been replaced. The board still did not feel the patio should go back in, due to lack of evidence on site that there had been a patio. Steve F.

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said if there was a way the applicant could find evidence of the patio, the board would allow what was there to be replaced. Steve said if the applicant did not think he could find evidence, then the board could act on the wall, but not the patio. Madge felt the board needed to act on the wall, because the area cannot be left as it is. Mr. Varney asked if he could produce a picture showing the walkway and part of the patio,

could he get a smaller patio? Steve said he couldn’t speak for the board, but based on the ‘grim evidence’ that the board received, he was not sure. Roger said that while the board was on site, they could see the walkway with plywood over it to protect it. Mr. Varney stated that that walkway was staying. Roger said he did not see any other walkway at present on site. Mr. Varney stated that Google Earth shows a walkway. Steve said that using Google Earth you could see a walkway and sort of see an old patio up tight to the house and then further from the house it was deteriorating.

Mr. Varney showed Roger the walkway on Google Earth and a small patio that the board saw on the site visit. He wanted the board to agree they also could see remnants of the larger patio area. Madge B. said she could see the walkway but not the patio. Mr. Varney said the larger patio area he was speaking about was broken up pavers, the other area is solid concrete. Roland L. agreed he saw the walkway but could not attest to seeing a patio area. All members looked at what Mr. Varney was showing them on Google Earth. There was nothing definite they could agree that was there.

Roger A. stated that that he did not feel the board could support the replacement of the patio area unless pictures were provided. He stated the walkway could be seen, and he believed the board could agree there was a retaining wall based on the way the embankment looked on site. He said the board would need to know what erosion control measures would be taken and a time frame for completion of the project. The board did suggest York County Soils and Water, if Mr. Varney needed to get ideas of what would work best for erosion control.

Madge B. wanted to know if there was a way to deal with the contractor? Mr. Varney stated that the contractor signed up for the next DEP course in erosion control. Madge asked how someone would know they hired a DEP licensed contractor? Roger A. said that CEO Demers oversees the project, and can obtain information as to whether or not they are licensed. Steve F. stated that Mr. Pratt stated he would oversee this project. Mr. Varney stated that silt fences have been installed.

Roger A. stated the board needs for the next meeting the dimensions of the wall, both length and width, as well as the dimensions of the landing area; and what would be used to restore and stabilize the area. Again, he suggested YCSW as a good source of information. The board would also be asking for a date of completion for the entire project, including any revegetation.

A Notice to Abutters will be mailed. The site inspection was already done prior to this evening.

Nothing further was discussed.

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Conditional Use Permit – Earth Moving in the Shoreland District to Replace Retaining Wall – Map 44, Lot 27 (188 Silver Lake Road) – Scott & Patricia Phelan, Applicant & Property Owner

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

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Provided along with the application, was a sketch plan depicting the existing 22’ x 38’ camp and its location in relation to the side lots lines, Silver Lake Road and Silver Lake; the location of a 10’ x 10’ shed & 6’ x 8’ shed; the well and the location of the retaining wall along the water’s edge, along with a set of stairs. The Permit by Rule was provided, which described the project as: Replacement of Retaining Wall, dated as mailed 10/13/2019, and pictures of the existing retaining wall were also provided.

Additionally provided, were two letters from Mr. Phelan. One stated the reason for application, that being ‘I am applying for a permit to replace my existing retaining wall at my property 188 Silver Lake Road, Shapleigh Maine. The existing wall is cracked and deteriorating. We are concerned that it could collapse with another harsh winter’. The other letter stated the vegetation remediation, that being ‘In the area of the project there is little to no vegetation that will be disturbed’.

The application detailed description of the project states: Replace cracked and deteriorating retaining wall.

The Planning Board received the signed Permit by Rule, via CEO Demers, dated as accepted on 10/3/2019. The PBR in an attached letter between the applicant and Claire Briggs, Environmental Specialist in the Bureau of Land Resources, DEP, states that the existing wall is 50 feet long by 4 feet high, and that the stairs will be replaced as well.

Roger A. asked Mr. Phelan to let the board know what he intended to do for the record. Mr. Phelan stated that they wanted to replace the retaining wall along the water because it is deteriorating. Roger said while on the site inspection, Mr. Pratt mentioned pulling the stairs back to line up with the wall. Mr. Pratt stated that they also were going to move the stairs, so that they line up with the dock. He said he put this on a sketch he gave to Mr. Phelan. Mr. Phelan showed the board where they wanted to move the stairs. Mr. Pratt stated it was approximately 6 feet from the end. Mr. Phelan stated that they also wanted their wall straightened, so parts will be moved back from the water.

Madge B. asked how many trees would be removed? Mr. Phelan believed it was two trees. Mr. Pratt agreed, stating one had to be removed because it would interfere with the block wall, it was two pine trees. He noted one was right where the wall would go. Madge said the board would need those placed on the plan, and where the replacement trees would go. Mr. Phelan stated after the previous applications, he realized this is what he needed to do. Steve F. wanted to know if the board wanted them to draw the trees in tonight and act on the application? Madge said they couldn’t, the abutters needed to be notified. Mr. Pratt said he would be returning to the next meeting anyhow.

Roland L. asked how tall the wall was going to be? Mr. Pratt stated 6 feet.

Roger A. said any tree removed in the Shoreland, the root of the tree has to stay. Mr. Pratt said some have to go, because they will be in the wall. Roger understood. The applicants stated that they understood. Steve F. said you just have to cut it flat. Mr. Pratt asked if the tree that was into the wall, did he have to leave it. Roger said that in the ordinance it states that tree roots have to stay, but you can’t leave it if it interferes with the wall.

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

A notice to abutters will be mailed.

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Nothing further was discussed.

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Other:

Possible Ordinance Changes to Allow for Low Retaining Walls in the Shoreland District and to Allow for a New Accessory Structure in the Shoreland District

Board members reviewed the two ordinances that they were given at the last meeting. They are as follows:

Low Retaining Walls in the SD less than 24 inches in height.

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;

(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.

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Accessory Structures in the SD

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. In no case shall the structure be located closer to the shoreline or tributary stream than the principal structure.

Board members discussed both. It was noted with respect to the retaining walls, they had to be less than 24 inches in height and 25 feet horizontal distance from the high water mark. Steve F. asked if there was a definition for a ‘low retaining wall’, because if the Town adds the ordinance he felt that was necessary. Board members agreed. Barbara F. stated that a low retaining wall would probably say something like ‘a retaining wall 24 inches or less in height’, after the definition of a retaining wall. Steve F. asked where he would find the low retaining wall section in the DEP handbook. Barbara said, page 19. Madge B. said she was confused about the woody vegetative buffer. Barbara noted that the ordinance states what the DEP wants. Madge agreed but she couldn’t figure out where you could put the walls if you needed 15 feet of buffer. Barbara said she thought these were for terracing, not for along the water. CEO Demers agreed, they were for terracing. Maggie M. said she had seen them, and in some locations there were bushes between them. Barbara thought the point to having them was for erosion. CEO Demers stated that it says that low retaining walls not for erosion control shall meet the structure setback requirements.

CEO Demers thought they needed a section for retaining walls that are not necessary for erosion control, and a section for those that are. Barbara F. did not think that was necessary. Maggie M. thought the way it is written, it is discouraging terracing unless it is at least 25 feet back from the high water mark. Roger A. preferred not to allow them because it does appear to be complicated, but also if an applicant only needs a permit from the CEO and it is a low wall, they have no idea they also have to consider whether or not they are moving 10 yards of earth; because if they are, they will also need a permit from the Planning Board. He felt if this is allowed, he feels it should go through the Planning Board, to avoid any misunderstanding. CEO Demers said if the Town adopts the ordinance and makes the reviewing authority the Planning Board, then it shouldn’t be an issue. Not all board members wanted to have to look at the walls, Steve felt it was a rubber stamp. CEO Demers wondered if the 10 yards would be exempt because it is part of putting up the wall. Roger said no, because the DEP put in the 10 yard rule. Roger said the ordinance would have to be changed, that anything greater than 10 yards the Planning Board would not look at it. Roger said you can’t pick and choose. CEO Demers felt it already allows it in the SD if it is a permitted structure, the 10 yards is exempt from Planning Board review. Roger read 105-4.D(3), Whenever a new, enlarged, or replacement foundation is constructed under a nonconforming structure, the structure and the new foundation must be placed such that the setback requirement is met to the greatest practical extent as determined by the Planning Board. Roger said in the SD they all fall under 105-4.

Steve F. agreed there may be some growing pains with the new ordinance, but the board has been to situations that they all wished a wall could be put on site to help correct a situation. CEO Demers noted that under §105-39, ‘Earth removal and filling for activities other than mineral exploration and extraction’

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Section B: Earth moving not requiring a conditional use permit. The following earthmoving activity shall be allowed without a permit; (2) ‘The removal or filling of material incidental to construction, alteration or repair of a building, or in the grading and landscaping incidental thereto.’ He felt earthmoving is already allowed without Planning Board approval. CEO Demers felt the board needed to decide if it applies to low retaining walls. Steve said this could be specific to the low retaining walls, by adding it to that section.

CEO Demers stated that they still would need their PBR. Roger A. felt that under §105-39, Section B(1) still applied that the removal or filling of greater than 10 cubic yards of material from or on any lot in any one year, in the SD applied. Steve F. felt that CEO Demers could make that determination during the permitting process as to whether or not 10 cubic yards would be moved. CEO Demers stated that the board needs to decide if the grading and landscaping is exempt from the 10 yard rule. He felt it read that way. Maggie M. worried that the minute you say something is exempt, unless you know exactly what they are doing, who knows what they are going to haul in. She felt by word of mouth, there is a concern if people say that if you are only doing grading or landscaping it is exempt. She said someone with a large property, that could be an issue. Steve felt it was already in the ordinance, that it is already exempt, they do not need to go to the board. Steve said the board needs to decide if it will fall under grading and landscaping. Ann H. asked if it would hurt if the board did? Steve thought it was to be determined.

Roger A. was concerned with treating everyone the same way. He went back to 105-4, the section on foundations, if it is in the SD it is coming to the board, and even though the board knows they are moving greater than 10 yards, the board is giving the permit with respect to what happens on the site. CEO Demers said the walls are not best practical location, so he feels it falls under the landscaping exemption. Roger felt the Planning Board should review the walls. CEO Demers believed that Section 2 of 105-39, didn’t necessarily apply to a foundation or building, it could be just grading and landscaping, and it is exempt already. Roger did not agree that was true in the Shoreland. He said under Section 1, it talks about Shoreland, Flood Plain, and Resource Protection. He said if it was exempt, it would be listed there. He said Section 2 does not speak about those districts. He felt numbers (2) & (3) did not apply to the SD, as it was not specified. Roger also stated that if the board was going to look at earthmoving in the SD, they would refer to Section D ‘Earthmoving in the Shoreland District’, which again notes the only exemption to Planning Board review in less than 10 cubic yards, which is permitted by the CEO.

Barbara F. reminded the board when making changes to anything regarding the SD, DEP approval was required, and at no time can the Town make the restriction less stringent than what the DEP guidelines state.

Roger A. stated that he felt everyone needed to come in for a permit for a wall. He could see people saying they were putting up a 2 foot wall and it becoming much greater, and having more fill moved. He noted times when the board was told the wall going to be less than 4 feet and the board goes to the site inspection, and he points out that the wall is over his head from base to top. Roger said there needs to be a determination on which is correct, as a board the decision is made by more than one person. CEO Demers felt he could sign off on the height of the wall. The board did agree that what triggers them reviewing a wall was not the wall itself but the yardage being moved. Steve F. thought 10 yards was substantial, Roger disagreed that 10 yards was not a lot of material. Roger noted that each wall being reviewed this evening was at least 10 yards of earth being moved. The board members agreed.

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The board agreed to speak more about this in November, possibly in a workshop.

With respect to the addition of an 80sf utility shed, most members agreed it would be a good idea and would talk about it once again at another meeting.

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Growth Permits

There are Growth Permits available.

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The Planning Board meeting ended at 9:30 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 next meeting will be held Tuesday, November 12, 2019 at 6:30 p.m.

The Planning Board meets the 2nd and 4th Tuesday of each month unless it falls on a holiday or Election Day. Should there be a cancellation due to a storm event, holiday or Election, the meeting will typically be held the following Wednesday, also at 7:30 p.m. Please contact the Land Use Secretary if there is a question in scheduling, 207-636-2844, x404.

Respectfully submitted,

Barbara Felong, Land Use Secretary

planningboard@shapleigh.net

Please Note Winter Hours Begin in November

The Planning Board Meetings will Begin at 6:30 PM