Dayton Planning Board

March 18 2014

Members Present: Rand Clark, Dan Plourde, John Boissonnault, Valerie Cole

Town Employees: Jim Roberts (CEO), Selectmen Ted Poirier (Chair), Gerry Taylor, Ted Poirier, Scott Littlefield

Public: Lisa and Steve Morse

Administrative: The March 4, 2014 minutes were read and approved. Dan Plourde motioned, John Boissonnault seconded. All voted in favor. Old Business: None discussed.

New Business: LISA AND STEVE MORSE, BICKFORD ROAD SUBDIVISION AND PROPERTY ON WILDERNESS DRIVE: (Note: the "Cushman lot", referenced below, has been sold to another party. It is still referred to as the Cushman lot to preserve a sense of continuity with the minutes from previous meetings.) The meeting started at 7:10. Rand Clark first asked the members of the Planning Board if they had all had a chance to read the documents posted by Lisa Morse to Dropbox and if there was anything to cover before turning the floor over to the Morses. No members had any questions or comments, and he then asked the Morses to state their goal. Lisa Morse said they want a clarification of responsibility and to know why requirements are different for them than for others in the subdivision. Rand Clark asked if they are asking for a waiver. Lisa Morse said they know the road needs to be widened. They need clarification to know which permit would cause that to happen as it is a three lot subdivision. They need to know who is responsible for widening the road: is it specifically the Morses regardless of who pulls the next permit or is it anyone in that three lot subdivision. They need clarification on a letter from Jim Roberts that exempts the Cushmans from widening the road. They also need to know who grants an escrow if they pull a permit and want to put $20,000 in an escrow to guarantee the widening of the road. They feel they are getting the runaround. They also need clarification on Attorney Ordway's statement that they can sell a three acre lot because they are not the original subdividers and have owned it more than five years. (Morses have owned the property for eight years.) They recently lost a sale because the title insurance company refused to release funds to the buyers. The title insurance company's standing is that it is an approved subdivision that has not been amended and the Morses are selling a lot outright that is not to code. The Morses also need clarification on their daughter's lot, noting that the building permit, when issued, was for a lot in an illegal subdivision, which makes it an illegal home. Lisa Morse stated the building permit should not have been issued as it was then in an illegal subdivision, and it is now a stand-alone lot and is not on the subdivision plan approved by the Planning Board. It is still not validated as legal: if the daughter wanted to sell, she would be unable to. Rand Clark referenced the Selectmen minutes of February 10, 2014 that are posted on the Town's web site. Lisa Morse stated she had not seen them: they were not posted when she last checked. Rand asked if she would be repeating what is in the minutes, assuming they are recorded accurately. Lisa Morse said yes but she would like to see the Selectmen's minutes first, as she feels things have been known to be twisted. Rand noted that most of the Planning Board members present were on the Planning Board when this issue was previously addressed, except for John Boissonnault. Lisa Morse noted she lost a sale at that time also. Rand Clark said he wanted to address and clarify what he feels is a persistent vein running through the Morses' claims, which is fallacious in his opinion, although unfortunate: it is that the town, the Board, or anyone in Dayton has any liability to past mistakes, or that there is any expectation of expertise on the part of the Board. He expressed empathy, saying that he is experiencing a similar situation in Scarborough, and feels he can relate to their issue. It is not anyone's intent to be hard or difficult or change the rules for anyone, but the fact remains that it is the landowners' responsibility to hire the expertise and they bear the entire burden, whether fair or not. It is the Planning Board's role to apply the standards. The Planning Board can't alter or stretch the standards: sometimes it can show some latitude, but not much. He related his similar story of having to hire experts in several fields for land he is selling. He feels it is logical, and wants to makes clear, that the town can't be experts in soils, wet lands, surveying and other specialties. Any mistakes made and/or setbacks are the landowners' responsibility. The Planning Board is not held liable. He feels the suggestion and expectation is made throughout the Morses' submissions that the Board is responsible. Lisa Morse said that isn't their intent. Rand repeated that the Board is not held liable, any mistakes or setbacks are the responsibility of the landowner. He noted that fees of $4000.00 have been returned to the Morses, an act that has not been done before or since, and that a number of waivers have been given to the Morses with the understanding that the Morses would widen the road. That was a final decision after many months and much work. He asked if there is new or additional information that the Board should be considering. Lisa Morse noted that the minutes say the next party to pull a building permit would be the ones to widen the road. It does not say specifically that the Morses would be the ones to widen the road. Rand Clark said that is understood, but the decision of the Planning Board was that things would be waived with the understanding that the Morses would widen the road. Lisa Morse asked where it said specifically that it would be the Morses. Rand Clark thought it was the next permit pulled by the Morses. Lisa Morse countered, saying the next permit pulled in the three lot subdivision would widen the road. Her point is that it is not clear: it could be anyone in an approved subdivision. There is no specific exemption in the subdivision plan. Rand Clark asked what it is that she wants, and what point is different. He wondered if the Board should go through the paperwork and address the key points for clarification. In terms of the subdivision and the Cushmans' exemption, there is a separate access to the Cushman lot. Lisa Morse says this is not true; they use the same access road. Rand Clark said it is the same access right-of-way, but within the 50-foot right-of-way there is a separate and distinct access to their lot. Lisa Morse approached the table. All looked at the subdivision plan. Lisa Morse pointed out where the Cushman access starts and stops, noting that the only difference is where it ends. They have the same access road or right-of-way to get into Wilderness Drive as other landowners. Their dimensions change at a point. Jim Roberts pointed out that the Cushman right-of-way does not access Sawyer property, only the Cushman lot. Lisa Morse said the Cushman part of the access road is part of a three lot subdivision. She pointed out the three lots. Rand Clark clarified with Jim Roberts that Cushmans' access right-of-way does not access the other lots. It is still a right-of-way, the road and right-of-way was waived for the three lots. Lisa Morse said it was not waived. Rand noted that Jim Roberts' clarification was the Board's understanding. Jim Roberts says Wilderness Drive “does not come into contact with the Cushman lot at any location.” Lisa Morse stated that they were required to name Wilderness Road and put in a sign before building their daughter's home because it now accessed two homes. She stated “It is amazing how the road coverage just changes every time you turn around.” Rand Clark said that he felt in reviewing the Selectmen minutes that “The tone was disrespectful and personal at times and that will not be tolerated this evening.” He would give three warnings and then would end the meeting. Lisa Morse said “I’m done anyway. This whole f---ing town is a piece of f---ing shit.” She then left the meeting; Steve Morse stayed and approached the table. Jim Roberts continued to explain the road to the Board and Steve Morse. There are two separate right-of-ways that access the properties. One accesses the Cushman property, the other goes to the Sawyer property. Steve Morse and John Boissonnault asked why it all had to be widened. Rand Clark explained that the widening of the road has to be done the whole length of Wilderness Drive; one can't have part of a road in the middle that is not up to standards. Steve Morse noted again that his daughter's house is illegal, according to the lawyer he consulted. Rand pointed out that does not fall back on the town. Steve Morse said he wanted to buy land to build a few houses, not to be part of a subdivision. He thought after five years he would be clear and able to sell a lot; now it is a subdivision. Jim Roberts said he can sell land; Steve Morse said two attorneys have told him that he cannot. He claimed that his daughter's house can't be sold, because it is in an illegal subdivision. Jim Roberts stated he relies on the MMA attorneys: this is what they do all the time. Steve Morse said “I believe the attorney we have working for us is a lot better than the attorney you guys have working for you.” Rand Clark repeated that it is the landowners' responsibility to meet the requirements. He spoke again of his similar problem in subdividing land and meeting requirements and how he now has to meet regulations that have changed. It is the landowners' responsibility to do due diligence and ferret out things. He thought the escrow could be done: Jim Roberts said the only way to do an escrow now is to go back and revise the subdivision. Steve Morse said he is upset because he had the lot nearly sold and Ted Poirier Jr. came in to talk with Jim Roberts about the road. They needed to sell the lot so they could afford to fix the road. The bank would only give the buyers a loan if they had a building permit in hand. Lisa Morse went to Jim Roberts and said they had $20,000 to put in escrow, but Jim Roberts would not sign the building permit. Jim said that he could not, without the road being widened. Rand pointed out that is not a reasonable business model to sell the lot to get the money to fix the road. Steve Morse said again that they were under the impression that they could sell the lot. They went to two lawyers who said they could not sell the lot; the lawyers did not like the way it was written up. Rand felt that banks and lawyers were being cautious. Jim Roberts said that because they are not the original subdividers, they should be able to sell the lot. Steve Morse repeated that two attorneys have said they cannot sell a lot because it is an illegal subdivision. The three lots are approved, but he has been told they can't break lots off. He said there will be another attorney involved, as he feels that everything they tell him is different than what the town says. Jim Roberts asked what problem there seems to be, other than the widening of the road. Steve Morse stated they need to sell lots and they can't because attorneys or banks tell them it is an illegal subdivision. They have been told that they can't break lots off to sell, although it is now approved. Jim Roberts said again that they can, because they are not the original subdividers; the Leblancs were. He suggested several people who would say the same thing, including legal counsel at MMA. Rand Clark said if a letter from that Board would help, the Board would be glad to give it. Jim Roberts said there is a letter from Attorney Ordway saying the same thing. Steve Morse said they have showed the letter to other attorneys, but it hasn't helped as the land can't be broken off the way it is written up. Jim Roberts said the only time that can't be done is if it specifically says so in the subdivision plan. As far as he is concerned, the Morses could sell a lot tomorrow and as soon as the road is widened he will give a building permit. He repeated that attorneys from MMA say that they can sell, because they are not the original subdividers and have owned the land for more than five years. Rand Clark said that he reviewed the process both before and during his time on the Board and felt that there were repeated attempts of trying to do things outside the normal process. He would encourage Steve Morse to go through the process. The Board is willing to work with him. If the Board does other than what is proper, it could be harmful later. If it is allowed, the Board will consider an escrow. The Board needs to check into the escrow process. Steve Morse said they are improving the road to a certain degree. If one more permit is pulled, then the road has to be pulled up and redone to different standards. Rand Clark spoke again of his process in another town, recognizing that it is the landowners' burden to meet standards. John Boissonnault asked if Ed Leblanc originally created the three lot subdivision (yes) and asked why he did not have to widen the road. Jim Roberts explained that at that time many things were waived by that Planning Board. Although the illegal subdivision creation was not intentional, it created problems that were discovered later. Jim Roberts told Steve Morse that if the road is widened to 20 feet, he does not see that it would have to be dug up and redone when another permit is issued, but could instead be improved. He suggested widening the road in anticipation of future building permits, which would require 22 feet. Rand Clark read aloud a passage from Attorney Ordway addressing the five year exemption (See Memorandum, January 17, 2012, page 1.) Jim Roberts said that key words are "that subdivider" meaning the original subdivider. Once it is sold to someone else, the new owner can sell a lot after five years. John Boissonnault clarified that Steve Morse can sell a lot if he wants to; Steve does not want to create a subdivision through selling lots, he just wants to sell a lot outside the five years. If he wanted to change the subdivision by selling lots within the five years, the Planning Board would revisit the subdivision plan and may have different requirements at that time. The original subdivision was created when the Leblancs sold to the Cushmans as it created three lots within five years, but the issue didn't pop up until the Leblancs sold to the Morses. The Planning Board at that time was busy with other items and this fell aside, and then came up during a title search. Rand Clark noted that as a volunteer board, the Planning Board members are not experts. The landowners have to hire experts and the burden is on them to make sure things are right. John Boissonnault asked why Steve Morse feels he can't sell, if the town attorney says the lot can be sold. Steve Morse said two real estate attorneys say the lot can't be sold. Rand suggested that the Morses' lawyer talk with the town attorney. Dan Plourde asked if the problem is that the buyer applying for the permit has the responsibility for the road: Jim Roberts said it is whoever pulls the permit. Steve Morse explained that when they had an interested buyer, a red flag came up during the title search, indicating they could not sell the land because of the illegal subdivision status. Lisa Morse sent all the notices and approval from the subdivision meetings. The buyers' bank would then not give financing without a building permit. Jim Roberts clarified for John Boissonnault that the three lots determine the subdivision. Rand Clark asked who has the responsibility to improve the road. Dan Plourde noted there is a catch: the Morses want to sell the land, but need to improve the road to do so. Without selling the land, they don't have the money to improve the road. Because it is red flagged, banks want a building permit before releasing the money but a permit can’t be issued until the road is improved. Even if they sell one lot every five years, the road still needs improvement because they are developing the land. Steve Morse said he does not have a problem with actually doing the road, but he has financial constraints if he can't sell a lot before doing the road. Usually the bank does not want a permit beforehand, but they are questioning the subdivision. If he sells the land first, he can improve the road and then get the building permit. Jim Roberts said it is an approved subdivision, he does not know why the attorneys are questioning. Rand Clark suggested that the attorneys should talk with each other, with Steve Morse's attorney citing his information source. Jim Roberts said again that because the Morses are not the original subdividers, they can break off and sell a lot after five years. An original subdivider would have to amend the subdivision. Rand Clark expressed concern that if the rules change within the five years, the Morses would have to improve the road again to new standards. There is a risk, although it may be unlikely. Grandfathering does not apply in these cases. John Boissonnault felt this is a problem between lawyers and not really a Planning Board problem. Jim Roberts asked Steve Morse to have his attorney send him a letter explaining why he thinks this land can't be sold. Rand Clark said the Board would defer to the attorneys. Rand Clark noted that there is equilibrium: if something is allowed for one party, there is an effect on another party. John Boissonnault pointed out that it is not the Board's intent to upset people. The Board wants to follow the rules and make things fair for the Morses and others as well. Jim Roberts reminded the Board that it is important to not make decisions now that will create problems later. Jim Roberts said again he would like to know why the Morses' attorney is saying the land can't be sold. Steve Morse thinks there is an email that he can give to Jim. Jim Roberts repeated that everything in his training says that the owner who isn't the original subdivider can break off a lot, unless specifically prohibited in the subdivision plans. Rand Clark said again the Board would be willing to give the Morses a letter stating that: Jim Roberts pointed out there is a letter to that effect from the town attorney. Jim Roberts said again that they can sell the lot, but to get a building permit the road has to be widened. Rand Clark asked how many more lots they plan to pull out: Steve Morse said he wasn't sure. Jim Roberts said if they sell one lot, they can sell three acres. If they follow the subdivision route, it would be five acres if they are not doing cluster housing. He gave a brief explanation of cluster housing. Steve Morse asked if cluster housing would require him to re-do the whole road before selling lots, or if it could be done in phases. Jim Roberts said money could be placed in escrow and it could be done in phases. Occupancy permits would be issued after the road is to standard. As the engineer signs off, the money is returned. Dan Plourde referenced another subdivision that was done in phases, noting that they installed a hammerhead to satisfy Planning Board requirements in completing the first phase. Steve Morse brought up the issue of escrow; Jim Roberts said neither he nor the Planning Board has the authority to approve one. The only way it has been done is with a subdivision, but he does not know how that it is done if someone just comes to the town and says they want to put money in escrow. When Lisa Morse spoke about it when she came in for a building permit, she told him that Poirier was going to start on the road the next day. Jim Roberts checked the site for several days but nothing happened. He talked with Poirer twice and told him the road needs to be widened to 20 feet and ditched and swaled as needed so there is no water run-off onto the other properties. Rand Clark thought the treatment of the whole issue was more than fair. Jim Roberts noted if everything had been done to standards and not waived, it would be completed now. Steve Morse said it hurt them that the Cushmans pulled a permit without widening the road. Jim Roberts said he made it clear to the purchasers of the Cushman property that if they pull permits for two properties, if they plan on splitting the land, they will have to widen the road to 20 feet between certain points. If they pull only one permit they will not have to. Steve Morse asked for clarification: his understanding was that if he pulls a permit, he has to widen the road, and if he pulls a second permit (after the Cushmans) he needs to widen more, but if the Cushmans pull one, they don't have to widen. Jim Roberts clarified that if the Cushmans pull two permits, when the second house goes in, the road needs to be widened. The Cushman right-of-way is not exempt from anything. There are two separate right-of-ways, one to Cushmans' lot and one to Sawyers' and the daughter's. The daughter's lot and Sawyers' lot don't come into contact with the Cushman lot. Because there are two separate right-of-ways there, the Cushman lot is not exempt. One house, served by one right-of-way, does not require road widening. Two or three dwellings on their right-of-way mean the road needs to be widened. Jim Roberts pointed out that he did not require the widening when the Morses built their daughter's house. John Boissonnault wondered if the Leblancs could be approached about this: Jim Roberts explained that everything was waived for them. The problems were caused in part by so many things being waived for the Leblancs. Jim Roberts referenced Section 6.2 of the Zoning Ordinance, Access to Lots, for more information. John Boissonnault wondered if the Morses could approach the people who bought the Cushman land about sharing costs in widening the road. Jim Roberts said there is nothing to prevent that. Steve Morse asked about the difference between the minimum requirements of the first road and a road built to town standards in terms of gravel fill. Jim Roberts said it is in the regulations. Dan Plourde read that it is fifteen inches. Steve Morse wondered if he could add gravel to the road: Jim Roberts thought he could grub out the sides and add to it. Specs would be different if it was going to be a town road and would include paving. Once a road serves between four and eight houses, the road has to be brought up to construction standards. If it is a private road, perhaps it does not need to be paved. Rand Clark reminded everyone that there were a couple recent cases in Maine where people died in fires because emergency vehicles could not get in. Those are cases where lenient standards were harmful, as there are safety issues when a road is not built to standards. Jim Roberts said again that the Cushman lot was not exempt, and there are two separate right-of-ways. He talked with lawyers again last week to check his interpretation of the five year exemption. Steve Morse wondered if perhaps his attorneys thought that the Morses were the original subdividers. Jim Roberts noted that this is a state statute. He would like to see the Morses' attorneys reasoning to understand why they think the land can't be sold. Steve Morse left at 8:20 PM. The minutes from March 4, 2014 were then read and approved. The meeting adjourned at 8:40 PM. The next meeting will be held on April 15th, 2014 unless the Morses request a meeting on April 1st. (Note: the Morses have made a request to be on the next Planning Board agenda: the next meeting will be held on April 1st, 2014.)

__________________________________________________Date:_____________________ Valerie J. Cole, Secretary __________________________________________________Date:______________________ Rand Clark, Chair COPIES TO: Jim Roberts, Code Enforcement Officer; Selectmen; and Tax Assessor THESE MINUTES MAY NOT BE TRANSCRIBED VERBATIM. SECTIONS MAY BE PARAPHRASED FOR CLARITY.