01-17-2012

Dayton Planning Board

January 17, 2012

 

Members: Remi Caron (Chair), Rand Clark, Dan Plourde, Dick Hall, Valerie Cole (Alt.)

Town Employees: Jim Roberts (CEO)

Public: Lisa Morse, Howard (Skip) Cushman, Sarah LeBlanc

 

Administrative: Minutes from January 10, 2012 were read and approved with a correction: the seventh and eighth paragraphs on page 2 were reversed. Dick Hall motioned, all voted in favor.

 

Old Business:

ED LEBLANC, PROPERTY ON BICKFORD ROAD: Remi Caron called Ed LeBlanc to see if he would be attending the meeting: Ed could not but called Sarah LeBlanc to attend. Ed also said that he had contacted Al Frick and John Riordan and both intended to go to MDEP to discuss the shoreland zoning issue.

 

While waiting for Sarah LeBlanc to arrive, members read an email response from Town Attorney David Ordway to Remi Caron, regarding questions asked by the Planning Board. (See attached documents.)

 

Remi Caron asked Lisa Morse how wide the subdivision road is currently; she thought it was approximately 14 feet at the beginning near Bickford Road and widened to 16 feet near her daughter’s house.

 

Sarah LeBlanc arrived and was given a copy of the email handout to read.

 

Dick Hall clarified that at the last meeting, the Planning Board gave a letter to the LeBlancs and Morses indicating the Board’s position on the road and the minimum subdivision requirements. The letter showed the Planning Board’s intent to work with the LeBlancs. Now the Board has been told they don't have the authority to waive an ordinance, but do have the authority to change a standard. Instead of the road being accepted as is, it would have to be widened to 20 feet because of the town ordinance. Rand Clark read from Ordway’s response to the second part of Question D, page 4, that “Although the zoning and subdivision regulations overlap when it comes to the access/road requirements, a landowner must comply with both.”  To be exempt from one does not mean they are exempt from the other. With the second house now located on the road, it is necessary to adhere to the zoning ordinance requirement of 20 feet. Lisa Morse questioned whether this applied to houses or lots. Board members clarified that lots create the subdivision, and a subdivision can’t be approved until the road is 20 feet wide. Remi Caron also pointed out that because the Planning Board does not have the authority to grant a variance, the next step would be to go to the Zoning Board of Appeals, which has authority to grant a variance but may not necessarily do so.

 

Lisa Morse remarked that her daughter’s house is not legal because the road isn't 20 feet wide and it should not have had a building permit issued.

 

Dick Hall noted that it all becomes legal by approving this as a subdivision and widening the road to 20 feet. Should it happen that MDEP agrees with Al Frick that the property isn't in the shoreland zoning, and that an illegal subdivision wasn't created because the third lot is exempt, there is still the issue of having to widen the road because it serves two houses. The person who creates the need is responsible for the construction.

 

Dan Plourde questioned if the second sale happened before the five years were up (yes). It was determined that the illegal subdivision was created when the LeBlancs sold a parcel to Cushman which created the third lot (after selling a second lot to Sawyers.) Homestead exemption does not apply here because the LeBlancs did not live on the property. The LeBlancs then sold 46 acres to the Morses, thinking it was exempt because it is over 40 acres. However, regardless of whether or not a subdivision was inadvertently created, the road still must be widened to 20 feet and the Board does not have the authority to waive this.

Rand Clark asked if the road has ditches and culverts. Lisa Morse indicated it has a culvert at the entrance of  Bickford Road and to an extent has some ditches.

 

If it is decided this is a subdivision, one of the minimum requirements would be widening the road to 20 feet. Other requirements would be providing a surveyed subdivision plan, ditching and installing culverts as needed, and creating a hammer head. There may be other normal subdivision requirements as well. Dick Hall noted again that the LeBlancs can appeal to the Zoning Board of Appeals for variances.

 

Section 13.1 of the Subdivision Regulations does allow the Planning Board to waive standards provided they do not have the intent of nullifying the intent and purpose of the zoning ordinance. As an example, in 2006 the Planning Board voted to require all subdivision to have paved roads; however Dick indicated he would not have a problem waiving that requirement in this case.

 

Remi Caron referenced Attorney Ordway’s email answer to Question A and asked for clarification that once a three lot subdivision is approved, any future subdivision of parcels don’t need to go through Planning Board approval if they fall outside the five year period. It was determined that if the original subdivider makes changes to the plan or creates more lots, they need to come before the Planning Board again for  amendment and approval. If the original subdivider sells land to someone who then sells land after the five year mark, that person does not need an approved subdivision plan, provided it is not prohibited in the deed.  Jim Roberts noted that if the original subdivider wants to create another lot after the five year mark, they need to come back before the Planning Board for amendment and approval.

 

Dick Hall read that once the non exempt third lot is created, the one who created the lot is responsible for acquiring the subdivision approval. In this case it would be the LeBlancs. (See Ordway’s response, pg. 4.)

 

Dick Hall also read " Absent a provision in the easement deed regarding maintenance, the zoning ordinance contains no independent mechanism to force an owner to contribute to the maintenance of a private road” and also, “…under 23 MRSA Subsection 3101, when four or more parcels of land are benefited by a private road, any three owners may require those benefited by the road to contribute to its repair and maintenance, to include snowplowing. Again, however, the owner may not be required to contribute to upgrades or improvement except to the extent they are shown to be a cost-effective approach to maintenance.” (Ordway’s response, bottom of page 4.) The easement can require maintenance but can't require other  owners to pay for the widening.

 

Dick explained that there are three points the Board has determined at this time: the Board doesn’t know if the Zoning Board of Appeal would grant a variance for the road, the Board also doesn't know if Al Frick and Mike Morse of MDEP will come to agreement on the shoreland district, and the Board may need to require the creation of a subdivision and the widening of the road to 20 feet.

 

Sarah LeBlanc said that John Riordan and Brad Lodge are trying to meet with MDEP. The LeBlancs’ attorney spoke with Al Frick this morning and Frick was planning to walk the property, but she didn’t know if that had happened yet. The LeBlancs are at a standstill until Frick and Riordan speak with MDEP.

 

Dick Hall explained that if Frick and MDEP can't come to agreement, the LeBlancs are at the point where they will have to apply for subdivision approval, and may or may not wish to go before the Zoning Board of Appeals regarding a variance for the necessity of widening the road to 20 feet.

 

Sarah LeBlanc indicated that they are concerned about the expenses with this issue. She will contact the Secretary as soon as they receive information that can be further discussed. She was informed that the Planning Board will meet again on February 7, 2012, as there are open items on the agenda.

 

At this point the members of the public left and the Board members approved the minutes. (See above)

 

Jim Roberts reminded Board members that if MDEP says this is not in the shoreland district, it has to go through a town hearing and a town vote before it can be removed from the district map.

 

AMOS GAY, ESTATE OF NORMA CHARLES SUBDIVISION, GOULD ROAD: Amos Gay sent a message to the Board that he had no new information to convey: he has not heard from Judith Andrew’s attorney regarding the probate process or the progress in selling any land.

 

New Business:  None discussed.

 

The meeting adjourned at 8:00 PM. The next regular meeting is scheduled for Tuesday, February 7, 2012, 7:00 PM at Dayton Town Hall.

 

 

 

 

__________________________________________________Date:_____________________

Valerie J. Cole, Secretary

 

 

 

__________________________________________________Date:______________________

Remi Caron, 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