Dayton Planning Board

March 13, 2012


Members Present: Remi Caron (Chair), Pat Sughrue, Dan Plourde, Rand Clark, Valerie Cole (Alt)

Town Employees Present: Jim Roberts (CEO)

Attorneys Present: David Ordway, Sandra Guay

Others Present: (see list)

Attachments: Findings of Fact prepared by Attorney Guay


Meeting was called to order at 7:11. Remi Caron excused himself from voting, due to family connections.


Old Business:

ED AND SARAH LEBLANC, BICKFORD ROAD PROPERTY: The LeBlancs asked to wait for a couple minutes for the Morses to arrive. The Board members reviewed Attorney Guay’s handout while waiting. (See "Findings of Fact".) The Board also attended to the following administrative details.



Members voted to approve the February 21, 2012 minutes. Dan Plourde motioned, Rand Clark seconded and all voted in favor.


Rand Clark, Remi Caron, and Valerie Cole plan to attend the MMA workshop on March 15th, 2012.


FIREWORKS ORDINANCE: Members voted to accept the fireworks draft for presentation at the public hearing next week. Dan Plourde motioned, all voted in favor.


Members also reviewed the 1998 zoning ordinance regarding roads, which references drainage, pitch, and slope but not width (see Ordinances of the Town of Dayton Maine, amended 1998, Article 5-I-4, pgs 34-35)


ED AND SARAH LEBLANC, BICKFORD ROAD PROPERTY: The meeting started again at7:25 with Board members introducing themselves.


Attorney Guay introduced herself, reviewed the history of the land transfer, and presented her findings of fact and a site plan. She noted that the plan included in the findings of fact is different than the large copy of the plan that she also presented, in that on the large plan the surveyor added Note 3 indicating that the measurements on the Cushman lot were taken from a deed and not verified. She then read her findings of fact: (paraphrased below- see Findings of Fact)


Lot 1 was sold by the LeBlancs to the Sawyers in 2001. In 2004 the LeBlancs planned to sell more land and looked at the town subdivision ordinance, which indicated if there is a lot of 40 acres or more, it shall not be counted as a lot for the purposes of subdivision (Paragragh 9) Based on that, the LeBlancs conveyed a 25-acre lot to the Cushmans. That was less than two years from the end of the five-year restriction. They believed at that time that there was no subdivision issue. In 2005 they conveyed the last portion, 46 acres, to the Morses. At that point the LeBlancs no longer had any legal interest in the land. The land sold to the Morses contained a 50 foot right-of-way subject to the rights of the other lot owners regarding utilities, egress, and access.


Almost six years later, in November 2011, Jim Roberts sent a letter to the LeBlancs stating that the sales violated the town subdivision ordinance, although the letter didn't state why. It wasn't until the LeBlancs received this letter that they realized there was an issue. Perhaps the Planning Board members at that time were aware, and perhaps the Morses knew, as they went before the Planning Board with a subdivision application. The LeBlancs did not know.

The town ordinance was adopted in 1988; the most recent revision at that time was from 1998. The town’s ordinance referenced Title 30 M.R.S.A. section 4401(4)(c). However, Title 30 was repealed and replaced with Title 30-A. Prior to the 1998 revisions the 40-acre exemption did not exist. Now the ordinance says the town can exempt a 40+ acre lot if the entire lot is outside shoreland zoning.


The findings of fact as prepared are a guideline. There is talk of the stream identified on the map. Although that area isn't shown on the new map as shoreland zoning, it is present on the 1993 map as shoreland. The DEP has ordered that the town use the 1993 map. Going back to that, the area in question is shown as shoreland.


The LeBlancs looked at the new map versus the map and hired Al Frick, who saw disconnects on the map, so he questioned whether the land was correctly classified. Michael Morse from DEP and Al Frick and Jim Roberts met and walked the site. Michael Morse asked MDEP in Augusta to make a determination, and the state determined that it is a shoreland protected stream and should be indicated as such on future maps.


Attorney Ordway has submitted a memo, and Attorney Guay agrees, that the Planning Board cannot waive ordinances, but can waive requirements. The LeBlancs are asking for an after-the-fact approval of the subdivision. For this the Planning Board can look at the 1998 ordinance that was still in effect in 2005, which said nothing about the road width. At that reference to road width was only found in subdivision regulations and not the ordinance.


The Planning Board has the authority to approve this after the fact. Attorney Guay is asking the Board to consider that the LeBlancs did due diligence, believing that they were conveying raw pieces of land, and then walked away from it, not aware of any issues until six year later. They are looking for clear title for the land owners. They are asking this pursuant to Subdivision Regulations Article XIII.13.1 that allows the Planning Board to waive portions of the requirements and standards (Pg 2, Findings of Fact)


Attorney Guay emphasized that it is important to remember there were only three lots, and the issue would not exist if not for the fact that it is a DEP regulated stream; something that the LeBlancs did not know would be an issue at the time of sale.


The second division occurred over six years ago, two building permits have been issued since then, and the road seems fine. When a road is constructed in that 50 foot right-of-way and additional buildings permits applications are submitted, the road will be held to the 2007 standards which reference the number of dwellings on the road. That does not change the position of anyone there currently because the lots were created before 2007.


The LeBlancs reasonably relied on the town ordinance at the time and would have waited for the five-year restriction to end if they knew there would be an issue.


In conclusion, Attorney Guay noted that the Planning Board has great latitude, due to Maine law and its own regulations, to waive requirements if they don't have public safety issues. This is not a precedent setting issue. It is a unique situation that arose with reasonable reliance on the subdivision ordinance.


Remi Caron thanked Attorney Guay and offered Attorney Ordway the opportunity to ask questions. He also asked if it is permissible for the Board to consider the previous ordinance. Attorney Ordway believes it is, as the LeBlancs are asking for an after-the-fact approval. He believes it is appropriate for the Board to apply the rules of that time.

Dan Plourde asked about the land the Morses conveyed to their daughter, wondering how much frontage is on the right-of-way. The Morses indicated that they extended approximately 275 feet.


Remi Caron asked the public if there were any comments.


Dan Gay introduced himself as Chair of the Budget Committee and stated he is familiar with the issue. He read from a statement that he prepared before the meeting. As Chair of the Budget Committee he is requesting that the issue be resolved now before it costs any more tax payer money. He felt there was a solution that would serve all. He would not wish to vote any more tax payer money to this, as he sees no gain or benefit to the town residents and would like to see it end. Craig Frappier added that he thought it had gone too far too. A member of the public commented that it sounded as if someone wanted a free road. The Morses denied that they want a free road.


Remi Caron noted that all the minutes are available and residents could see how the Board got to this point. The Planning Board wants to resolve this as well. He then asked the Board members if they had any comments, noting that he felt Attorney Guay presented a thorough case.


Rand Clark understood this to mean that if the Board compares the current standard to what is being requested, it will seem the Board has relaxed standards based on public safety (hammerhead, access for emergency vehicles.) He felt the Board could not waive anything that is important to public safety. The liability to the town, should anything happen, would be more significant than the cost of doing it properly from the start. Whether or not it sets a precedent, he feels that consistency needs to be considered. He noted the Board is not requiring pavement.


Remi Caron explained that at an earlier time the Board talked about accepting a plan from the LeBlancs with minimum subdivision standards and not holding them to what is required today. The Board needs to consider the zoning ordinance of the time with an interest in public safety, such as adequate turn around for emergency vehicles.


Sue Sydnor asked why the LeBlancs are responsible for that. Rand Clark explained that this particular issue has not been resolved yet. He noted there are federal and state laws from which the Board can't deviate, nor could the Board be considered a definitive body to advise on these issues, being a volunteer as opposed to a professional board. Also the Board is not a ruling body: it has standards it must follow. Sue Sydnor asked about the purpose of a local ordinance. Rand Clark explained that it is more than just local; there are federal and state statutes as well and the Board can’t change them. An example is shoreland zoning: there are rules the Board can't waive.


Matt LeBlanc asked if anyone should approach the town when they can't seem to get an accurate answer. Rand Clark noted that for a permit, the Board can say yes or no, but the volunteer boards of the town are not professionals. Matt asked if the town could point someone in the right direction to get accurate information. Rand Clark noted that there are check lists that are followed in the permitting process. Matt asked if there was a reason to go to the town at all. Rand Clark and Remi Caron explained that the town does not have the definitive answers on all: legal counsel should be used.


Dan Gay asked about the town attorney’s position on this. Mr. Ordway said he takes no position on applications. His task is to answer question from the Board and keep the Board from falling over a cliff. He is there to help interpret the ordinance and provide guidance, but he is not on the Planning Board and won't make findings of fact or dictate a decision.


Dan Gay asked if the proposal put forward will allow the Board to stay out of trouble. Remi Caron noted that Mr. Ordway felt it would be legally appropriate for the Board to consider an after-the-fact approval.

Dwight Anderson noted that the LeBlancs seem to be the ones putting effort into this, and wondered who owns the land now. The Morses indicated that they are the owners of the 46-acre lot, noting that they have prepared a plan that could save the LeBlancs money. Ed LeBlanc noted that any further development on this property would have to be brought up to town specs, and the Morses bought raw land with the knowledge that it would need to be upgraded in respect to utilities, road specs, etc. He feels that an after-the-fact approval is the best way and helps all parties involved; it keeps the LeBlancs from going bankrupt and helps the Morses to do what they want and allows other owners to what they want.


Rand Clark asked if the LeBlancs feel that nothing needs to be done to the road now, as future development would need to be funded by future owners. Attorney Guay noted that was the understanding when the land was sold. This road will eventually be built to town standards depending on the number of building permits requested. The simple solution is to approve this after the fact, as there is a 50-foot right-of-way to work with that will meet the town specs in the future.


Rand Clark clarified that the LeBlancs want to waive the hammerhead. Attorney Guay confirmed that, noting that there are ordinances that the Board can't waive but requirements that can be waived (Article XIII 13.1.) She felt it does not nullify the regulations as the road will be improved in response to future building. The reality is that the LeBlancs no longer own the land. This is an attempt to put everyone in the position they believed they were in when the LeBlancs sold the land.


Rand Clark noted that the Board can't waive what it believes to be public safety issues.


Attorney Guay noted that this isn't waiving these issues forever, but based on this subdivision plan submitted now, with the inclusion of Note 3, it is subject to the current ordinance. She felt there have been no safety issues and feels the Board can approve the subdivision plan with the inclusion of Note 3.


Nancy Harriman introduced herself as past chairman of the Planning Board. She noted that if the LeBlancs had applied for a subdivision at the time of the land sales, there would not have been a hammerhead requirement, as there were other subdivisions at that time that did not have hammerhead requirements. She felt the Board would have given out the proper information at that time and felt the current Board is hung up on the hammerhead.


Rand Clark noted the hammerhead is just one issue. He felt that the fact that hammerheads were not previously required should not influence the current Board and they should do the correct thing.


Nancy Harriman noted that she does not remember this coming up. Lisa Morse pointed out that there is a note in the minutes from 2006 that this is an illegal subdivision. The Morses felt it would rectify itself with time, and they withdrew their subdivision application at that time.


Jim Roberts said that he didn't think there was a subdivision in Dayton without some kind of hammerhead or turn-around. Nancy Harriman stated that she felt there were subdivisions not held to 100% accountability before that time.


Remi Caron noted that there will be future development and asked the Morses how they felt about taking the road as it is. The Morses indicated they had planned to develop the road; she felt the residents in attendance are vindictive. She feels the LeBlancs need to correct the subdivision. Remi Caron asked if they would be comfortable accepting the subdivision plan as presented tonight. The Morses said they would. They indicated they withdrew their application from the Planning Board before because of the road requirements.


Dan Plourde clarified that once a second house is in the area the road needs to be upgraded. Jim Roberts confirmed.

Sarah Wormwood asked why this took so long to come to light and why the passage of time has not corrected it. Ron Wormwood asked why the hammerhead is a big deal now and wasn't when the Morses’ daughter’s house went in. Remi Caron noted that is a valid point. Steve Morse explained that this problem was discovered when they tried to sell the land: their attorney brought the issue to the town.


Clem Meserve pointed out that the Morses said they would go along with the plan presented by the LeBlancs. If the Morses are in agreement in taking care of the road, and the LeBlancs are six years removed from the property, then he felt the Board could vote to approve the plan. He agreed with the Board on the safety issue, noting that it will be taken care of with future building.


Rand Clark would like to see all parties sign off on this road to absolve the town from liability. He felt that two houses warrant that safety requirement. Remi Caron noted that we have that flexibility.


Becky Frappier felt that the Board should agree to the current proposal. The Morses stated that they would agree to bring the road up to spec when they sell lots, but they don't want to pay for past errors.


Remi Caron asked the Board members if they had any other questions and wished to accept the presented plan.


Dan Plourde made a motion to accept the plan as presented. Attorney Ordway noted that if the Board is moving to approval, then they are approaching a cliff. Under the waiver procedure the Board needs to make written findings with specific notes on special circumstances. (See Subdivision Regulations, Article XIII 13.2) Most importantly, the Board must address this subject to appropriate conditions. The Board needs to state written findings and reasons for the record written for specific conditions. He also clarified that if the Board is moving to grant a preliminary plan, it has a certain amount of time to review and decide what it will require and waive. This has to be detailed. The Board has to go through the plan and the check list, and decide which may be waived, and which may be waived with conditions.


Attorney Guay asked Attorney Ordway if it would be appropriate for the Board to say they are waiving Article XI of the Subdivision Regulations, or do they need to go through the whole chapter. Attorney Ordway answered if the Board is waiving all the road standards, it can say that but it has to cite reasons after the preliminary plan is approved and must still go through the process.


Dan Plourde motioned to adopt the pre-2007 zoning ordinances for use in the approval process of this subdivision, as they were in place at the time.  All voted in favor. Board members will review the subdivision regulations at the time and assess fees and requirements.


Ed LeBlanc thanked everyone for coming and explained that the Board will be reviewing paperwork at this point. Most of the public left at 8:29.The LeBlancs were given a copy of the subdivision application and the subdivision checklist that the Board will use in the approval process.


After the public left, the Board questioned Attorney Ordway on the possibility and propriety of having workshop meetings. The Board also asked the LeBlancs to submit paperwork if possible for a workshop meeting on Thursday March 22nd.  This business will continue at a Planning Board meeting scheduled for March 27th.


Attorney Ordway clarified to Board members that it is not the function of the Board to dispense information regarding requirements. Anyone applying should start with the town CEO, but it is not the duty of the Board to dispense information on zoning, etc. If the applicant does not ask the CEO however, it can happen that the applicant does not get all the appropriate information.


UPCOMING PLANNING BOARD MEETINGS: The Planning Board will hold a public hearing on Tuesday, March 20, 2012 at 7:00 PM to review the proposed fireworks ordinance.


A workshop meeting will be held on Thursday, March 22, 2012, 7:00 PM with Attorney Ordway to review the LeBlancs subdivision application and the subdivision checklist. Following that, a special meeting will be held on Tuesday, March 27, 2012 at 7:00 PM to continue work on this agenda item.


New Business: None discussed.


After consulting with Attorney Ordway on Board responsibilities, the meeting concluded at 9:10 PM.