Dayton Planning Board

Special Session

January 10, 2012


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

Town Employees Present: Jim Roberts, CEO

Public: Ed and Sarah LeBlanc, Lisa and Steve Morse


Administrative: The January 3, 2012 minutes were read and approved. Dick Hall motioned, Rand Clark seconded, all voted in favor.


Old Business:


(Background: earlier in the day, CEO Jim Roberts forwarded an email to Board members that he received from Mike Morse of MDEP, indicating the opinion of DEP staff that the area in question on Bickford Road appears to exist within the shoreland overlay. See attached copies.)


Chair Remi Caron recused himself, as he is related to one of the parties involved.


Ed and Sarah LeBlanc asked to see any correspondence between Board members, Jim Roberts, and Mike Morse of MDEP. They also asked which map Jim Roberts had submitted to DEP. Jim Roberts indicated it was the town’s current “Dayton Zoning Districts” map. He explained that the Planning Board has no authority to change a town map: it has to go through the public hearing process and a town vote, and then through MDEP. The Planning Board has no authority over shoreland zoning.


The LeBlancs indicated that they are very upset with the recent turn of events and asked when the communication with MDEP was initiated and by whom. Jim Roberts said he sent an email the previous week to Planning Board members asking them to contact Mike Morse, but none of the Board members had done so. Yesterday (Monday, January 9th) he drove to Portland to give material to Mike Morse. He also pointed out that the Planning Board normally asks for two weeks to review material; this special session following a week after the last meeting is at the request of the Morses. Lisa Morse claimed she has talked many times with Jim Roberts and it wasn't brought to their attention that this was an illegal subdivision. Jim Roberts said he was not aware of it at that time. She pointed out that the third lot was created when Cushmans bought the property, not when the Morses acquired the 46-acre parcel. Jim Roberts said it isn't up to the town to monitor land sales. Ed LeBlanc said he remembers checking with Jim Roberts before this land sale regarding the exemption status; Jim Roberts feels he did not.


Lisa Morse said she had talked previously with Jim Roberts about dividing the land into two lots, then decided to increase to nine lots because it would be a better return on the large initial investment. When they decided to rescind their subdivision application in 2006, no one said at that time that it was an illegal subdivision that needed to be corrected.  


The LeBlancs repeated that, based on the information supplied by the Town, they made their decision to sell their land, believing it was exempt. They felt that a town reference gave them the knowledge to do this; they did research and felt they were given a no qualifier/no quantifier exemption. As citizens doing research in the subdivision handbook, they felt there was no other indication to follow through at the state level.


Ed LeBlanc asked earlier today for a copy of the subdivision regulations and was given the same information he received before. The LeBlancs pointed out that the two professionals they consulted said this land does not meet the qualifications of shoreland zoning. They indicated their willingness to work on this with the town but can't afford to build a road required for a subdivision. Ed LeBlanc also felt that the Planning Board can give any waivers that it deems necessary. He felt it sets no precedent, and that the Board has the power to work this out. He also pointed out that if anyone else wants to develop this property, they will have to go through the subdivision process. The LeBlancs they should not have had to get the professionals’ opinions, but did so because the Board asked for it. He asked if there is a purpose to tonight’s controversy, noting it has been longer now than the five-year timeframe for separating lots.


Rand Clark noted that he had not discussed this with the other Board members during the week, and Dick Hall indicated the same. Rand Clark said that he is as surprised as the LeBlancs by the email from Mike Morse of MDEP.


Sarah LeBlanc felt that they based their decision to sell on town information and now are being punished for it. She is very upset with the process. Lisa Morse said her daughter now owns a house on an illegal lot and the building permit for it should not have been issued.


Dick Hall noted that when the Morses were before the Planning Board in 2006, he did not realize that it was an illegal subdivision. Lisa Morse claims that former Chair Nancy Harriman knew that it was. He apologized and said that the Planning Board wants to resolve this and move forward. He indicated he would vote for maybe minor changes to the road, such as a turn-around for the emergency vehicles, and noted it is best to resolve this legally so it won’t continue to be a problem. Sarah LeBlanc wondered if at this point it should be put in the hands of lawyers but Ed LeBlanc was reluctant to do so.


Jim Roberts clarified that the Planning Board does not have the authority to change town ordinances, as such issues have to go to town vote, but noted also that the subdivision regulation is not an ordinance. Dick Hall felt that the Planning Board does not have the authority to just do as it wishes with this. Ed LeBlanc noted that there is contract zoning; Jim Roberts said it is in place but does not affect subdivisions.


Jim Roberts returned to the subject of the daughter’s house, noting that it is legal because the Morses had the right to give her the property and it has been over five years since the transfer. Lisa Morse wondered if it would hold up in court. Jim Roberts pointed out that title insurance would cover something like that.

 Steve Morse had a different opinion, noting that they currently have land for sale and they have been trying to sell so much a year, and he felt that some people in the room were against them. The Morses feel that they are on the receiving end of ill intent. He is concerned that they may have lost the current sale because if they have to wait a month for this to be resolved, the sale probably won't happen.

Rand Clark clarified there was no illegal intent by the LeBlancs or the Planning Board and it is nobody’s intent to make anyone do any more than necessary. The Planning Board is not a ruling body, and it is in everyone’s best interest to resolve this.

 Ed LeBlanc asked if it was possible to put together an agreement tonight that would be allow the Morses to make the sale, if the LeBlancs agreed to make a subdivision contingent on the Planning Board’s requirements and the LeBlancs financial ability to do so.

Lisa Morse felt if things aren’t resolved tonight, the sale won't happen. They were supposed to close December 19th. They approached the Selectmen first for a letter of non-intent and were referred to the Planning Board. Meanwhile the LeBlancs were served with notification of an illegal subdivision. Not much was accomplished over the holidays. The Morses lost the first date and had an extension to January 19th, but the interested party probably won't want to wait further.



Ed LeBlanc asked why the land can't be ruled out of shoreland zoning, referencing the MDEP letter, which he felt was open-ended. Dick Hall quoted the letter, noting that the land is shoreland-zone regulated based on the current and legally effective town map approved by MDEP. Based on this letter, the Board cannot say that the land isn’t in shoreland zoning.


Ed LeBlanc asked for other Board members’ opinions. Pat Sughrue wondered if further discussion with Mike Morse at MDEP would be the next step. Dick Hall suggested John Riordan or Alfred Frick should connect with MDEP, as they provided letters and documentation saying they felt the land wasn’t in shoreland zoning. Jim Roberts reminded everyone that he hand-delivered the Frick and Riordan documents to MDEP, and that either way the map can't be changed without a town vote.


Sarah LeBlanc asked where the definition of the exemption is written (page 5, Subdivision Regulations of the Town of Dayton.) She asked again where it says to refer to the state for the authority that the state has.


Rand Clark pointed out that Mike Morse of MDEP referenced the blue line on the map, saying that it does not mean the stream is intermittent, which seems to contradict Frick’s opinion. Ed LeBlanc expressed concern that MDEP will want to come out and look at the area.


Dick Hall felt there are currently three options:

1. The LeBlancs apply for subdivision approval and work out the options

2. The LeBlancs ask Frick to talk to Mike Morse of MDEP and come to resolution

3. The LeBlancs appeal this to the Dayton Zoning Board of Appeals


Ed LeBlanc stated he wants to get this resolved quickly and in a financially affordable manner. Dick Hall pointed out that was not likely to happen today. He proposed that if Frick and Mike Morse do not come to agreement, the Board could require that the LeBlancs create a subdivision plan with lines and markers, a suitable turn-around for emergency vehicles, and descriptions for lots and boundaries, to cover the minimum subdivision requirements. Pat Sughrue agreed with this suggestion, stressing that he would first ask Frick and Mike Morse to talk. Rand Clark suggested that the Board could provide a letter tonight indicating to the potential buyer that the Board understands the LeBlancs are working on this issue.


Dan Plourde reminded everyone that two streams are mentioned in the documents; MDEP should be aware.


Lisa Morse thought that since they have owned the land for over five years, they should be able to sell it legally. Dick Hall explained that the subdivision has to be cleared first. Lisa Morse asked Jim Roberts if the road could be considered as having a turn-around now, but the Board didn’t feel it was sufficient, although Dick Hall noted that he has driven in there and the road is passable. Steve Morse wondered where the turn-around could be located, perhaps on Cushmans’ land. LeBlancs felt that the Cushmans would not agree to that. Steve Morse then suggested that a hammerhead could be located after his daughter’s lot, on the right.


Sarah LeBlanc again asked where the town subdivision regulations reference the state regulations. Dick Hall asked if the requirement to reference the state regulations exists; if it doesn’t, then it seems to set up someone to still do the wrong thing, even after reading everything in the town handbook.


Remi Caron noted there was one place in the town regulations that excluded 40 acre lots, and the Frick documents reference it at the state level as well. Jim Roberts said the town can't be less stringent than the state, adding that the town regulations are old and outdated.


Dick Hall questioned if the Planning Board has the authority to say that because the town did not tell the LeBlancs to research further, the state regulations can be overridden. Ed LeBlanc requested that the Board check with Attorney David Ordway on that issue.

Dick Hall proposed that the most practical way to resolve this is to complete the subdivision. He asked if the LeBlancs could create a subdivision plan with a hammerhead and a road agreement. Ed LeBlanc expressed concern that one of the lot owners would not agree to be part of a road association. He noted there is a road there with a 50 foot right-of-way. Jim Roberts pointed out that there is a state mandate requiring lot owners to participate in the road maintenance whether there is a road agreement or not.


Ed LeBlanc asked if they agree tonight to try to work out a subdivision, if it would be possible to produce a letter for the Morses as well as themselves, although the LeBlancs don't own any of the property now. If they could get a letter saying that they are willing to go through the subdivision process and are trying to work it out as soon as possible, then the Morses would have something to show their potential buyers.


Dan Plourde was concerned with the town’s liability regarding the road if the town eventually takes it over. For this to happen the road would have to be brought up to town specs and the town voters would need to approve it.


Rand Clark expressed concern about emergency vehicles’ ability to get in and turn around. Ed LeBlanc noted that any subdivisions proposed in the future would have to revisit that issue.


Sarah LeBlanc asked again why everyone says that they have to go by state regulations. She can't find the reference in the town handbook. Dick Hall noted there was a reference to the state in the LeBlancs packet of documents from Frick and Riordan, but it does not seem to say so in the town regulations. He felt their lawyer failed them in this matter, as he would expect a lawyer to do the homework, and a real estate lawyer should know this.  Ed LeBlanc said they are now using a different lawyer.


Jim Roberts noted that the State of Maine Land Law books were printed after the town subdivision handbook. Lisa Morse asked what building code the town has adopted, and if it has not been adopted by the town, why did they have to go by that code? Jim Roberts explained that one has to follow state statutes.


Sarah LeBlanc referenced Article 3, Section 3.2A of the Dayton Zoning Ordinances, questioning whether or not the stream is a shoreland stream, based on the terms in that paragraph. Dick Hall pointed out that MDEP said in writing that it is a shoreland zone. He suggested again that Frick talk with MDEP, and if they can't resolve this, then the next best thing is to go through the subdivision process. Ed LeBlanc asked if the fee could be assessed at $200 as it was in 2004 instead of $400 as it is now.  He repeated that he would like the Morses to get a letter tonight indicating that resolution is in process.


Steve Morse asked how this would be done as a subdivision. Jim Roberts reiterated that the daughter’s lot is legal. Dick Hall explained that the Board wants to make legal the lots that exist now. The Morses have had the 46 acres for more than five years so they can sell a lot. Jim Roberts reminded the Morses that when there are five or more houses the road has to be wider, so they should allow for that with the turn-around. This is a requirement even if it is a private road, and even if a lot is sold no more frequently than once every five years.


Dick Hall asked Remi Caron to talk with Attorney Ordway to make sure nothing is being overlooked and to clarify that the five year timeline started when the Morses purchased the land. Dick then asked Jim if the Board should require anything else in addition to plans and a turn-around. Jim Roberts asked about the water source and suggested that the Planning Board make sure it has the authority to waive requirements such as a fire pond before they do so. Lisa Morse indicated that they could create a pond if needed.


Dick Hall asked Ed LeBlanc if he was aware of the requirement for a water source, noting that the Planning Board now requires cisterns. Ed LeBlanc replied that at the time he sold it, there were no buildings on the land. Rand Clark pointed out that when a subdivision is approved, this is part of the process. Ed LeBlanc felt that they have reason to fight this but would rather have this work out. Lisa Morse said there is a hydrant on Bickford Road, apparently close to their daughter’s house.


Ed LeBlanc indicated that his lawyer will contact Attorney Ordway as well and gave the Board a business card for his lawyer.


Dick Hall made a motion that if subdivision documentation is provided adequate to the Planning Board’s needs, the Planning Boards requirements will be that an adequate hammerhead is put in, and the road as is will be accepted, and other minimum requirements that are necessary will be met. (See attached copy of the letter.) Rand Clark seconded, all voted in favor.


Upon review, Dick Hall clarified that if the Planning Board does not have the authority to accept the road as it is, then the road would have to meet other minimum requirements that are necessary. The language in the letter reflects the intention of the Planning Board to accept the minimum if it has the authority to do so and it serves all the owners’ needs.


Dan Plourde expressed concern that the road should be sufficient for the passage of a fire truck. Dick Hall said that he has been on the road recently and felt that it is.


Ed LeBlanc asked where the hammerhead could be located; Dick Hall said the Planning Board is not concerned with that now but it is something that needs work. The Board’s intent tonight is to provide a letter for the Morses and LeBlancs to take with them.


At this point, the LeBlancs and Morses left after receiving signed copies of the above letter.


ESTATE OF NORMA CHARLES SUBDIVISION, GOULD ROAD:  (Note: Agent Amos Gay was not present due to another commitment, but he submitted seven copies of the plan as well as a Mylar earlier in the week.)


Board members reviewed the plans submitted by Amos Gay and noted that all the corrections detailed on January 3rd, 2012 had been made. Remi Caron reviewed the checklist for minor subdivisions and determined that the Board doesn't have any paperwork indicating that Mrs. Judith Andrews is the legal owner of the property in question. The applications fees have not been paid yet and are due upon the sale of part of the property.


Further review is tabled until the Board receives proof of ownership, then once that is provided, the Board can approve the subdivision with the condition of receipt of payment.


Amos Gay will be asked to appear for the January 17th, 2012 meeting.


The meeting adjourned at 9:20 PM.



Valerie J. Cole, Secretary



Remi Caron, Chair






Planning Board Members,

     I have been in contact with Mike Morse to verify what I have been saying for the past two weeks.  The Planning Board does not have the authority to remove the stream from the map.  It needs to be done after public hearings and after a vote at Town Meeting.  Then the map goes to DEP for approval/disapproval.  It is also his opinion that the stream in question needs to be protected.  He has sent the information to his boss in Bangor to review, and he hopes to have something in writing before tomorrow night.


 Jim Roberts



----- Original Message -----

From: Morse, Michael J

To: ceodayton@roadrunner.com

Sent: Tuesday, January 10, 2012 11:12 AM

Subject: Shoreland Zoned Stream


Hello Jim.  Thank you for discussing with me and submitting information regarding a stream located near the terminus ofBickford Roadin the Town ofDayton.  You inquired whether the stream is currently shoreland zone regulated according to the effective Town zoning map, and also whether or not the stream is required to be shoreland zone regulated according to the State’s minimum shoreland zoning provisions.  Department staff has considered the matter and offers the following:


Current zoning-  Based on the materials provided and the “Dayton Zoning Districts” (Map), dated June 1, 1993 (note that this is the currently legally effective shoreland zoning map approved by MDEP), there is a Shoreland Overlay 75’ that appears to exist within the subject area.


State minimum requirement-  According to the Department’s minimum requirements the stream is required to be shoreland zone regulated within the subject parcel of land.  Department staff considered the State’s stream definition within the shoreland zoning regulations (Chapter 1000, State of Maine Guidelines for Municipal Shoreland Zoning Ordinances, and the statute, 38 M.R.S.A. §436-A(11-A)) and also evaluated the USGS topographic map data.  The short segments of missing blue line on the USGS topographic maps- where the stream flows through wetland- does not cause the stream to be considered intermittent and the stream does in fact meet the shoreland zoning definitions of a stream.  Please note that should the Town eventually amend its Map that the upstream limits of the stream would extend somewhat further than the existing Map depicts. 


Thank you for requesting our opinion on this matter.  We hope you find it to be beneficial.  Please don’t hesitate to contact me with any questions or comments.


Mike Morse


Mike Morse


Asst. Shoreland Zoning Coordinator

312 Canco Rd, Portland, ME 04103


822-6303 (fax)

















Incorporated April 7, 1854



Ed and Sarah LeBlanc

77 Buda Road

Dayton ME 04005


Steve and Lisa Morse

17 Cal Vista Drive

Dayton ME 04005




January 10, 2012



To Whom It May Concern:



The Dayton Planning Board has voted and approved the following motion in a special session on January 10, 2012 in regard to the property formerly owned by Ed and Sarah LeBlanc on Bickford Road in Dayton:

If subdivision documentation is provided adequate to the Planning Boards needs, the Planning Boards requirements will be that an adequate hammerhead is put in, and the road as is will be accepted, and other minimum requirements that are necessary will be met.






Remi Caron, Chair

Dayton Planning Board