Dayton Planning Board

December 6, 2011

 

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

Valerie Cole (Alt.)

Town Employees: Jim Roberts CEO

Public: Amos Gay, Ed LeBlanc III, Sarah LeBlanc, John Gay, Steve Morse, Lisa Morse, Kaitlyn Morse, Kyle Mooers, Kevin Morse, Skip Cushman

 

Administrative:

At the end of the meeting, the November 1, 2011 minutes were read and approved. Dick Hall motioned, Dan Plourde seconded, all voted in favor.

 

Board members requested that the Town purchase two copies of the “2012 Planning and Land Use Laws.”

 

Chair Remi Caron called the meeting to order at 7:00 PM. 

 

Old Business

GOULD ROAD SUBDIVISION: Amos Gay reviewed the information he presented to the Board on November 1, 2011 regarding the Norma Charles property on Gould Road. Norma Charles, a widow, sold two lots in 2000, one to Ted Poirier and one to Ted Poirier and Millie Tuttle. The surveyor at that time was James Bacon. In 2004 Mrs. Charles sold a lot to Harold and Sheri Mishoe, inadvertently creating a subdivision, and conveyed land to her son Steve Goodwin as well. The surveyor was Phil Reed. After the Mishoes built a house, it was discovered that most of the house was on land actually owned by Steve Goodwin, and he conveyed approximately one acre to the Mishoes, which was annexed on to their lot in 2004. Steve Goodwin died intestate in 2010, and his mother, Norma Charles, died testate a week later. Her daughter Judy Andrews inherited the remaining land. Mrs. Andrews has been approached by an abutter who is interested in buying part of the remaining land, which he would annex on to his lot. She proposes to divide the lot, sell part to the abutter, and also sell the remainder of the lot, which contains the house. Attempts to find surveyor Phil Reed and have him submit a subdivision proposal have been fruitless. James Bacon has been asked to review Reed’s work and submit a proposal to the Planning Board, but he has not been responsive. Glenn Anderson is the attorney handling the estate. Amos Gay was retained by Judy Andrews in the fall of 2011.

 

Amos Gay noted that the ordinance he was working from was obsolete, so maybe some of his previous information was inaccurate. He presented copies of the following documents:

• a survey map, based on the pins located by the other surveyors
• a sketch plan, not to scale, of the proposed subdivision
• the land’s location on the Dayton property map
• a list of abutters
• the Dayton Future Land Use Plan, showing the property in Mixed Use
• the FEMA Flood Map Panel 3
• a topographic map pertaining to the property
• the USDA Soil Survey pertaining to the property
• a Town of Dayton subdivision application for a three-lot subdivision
• a request to waive a public hearing and to waive the $400 per lot fee

 

He noted that he does not have soil test information, as James Bacon did not dig test pits because that wasn't the intent at the time. CEO Jim Roberts has provided him with copies of the soil information from Mishoes’ and Poirier’s soil tests. Amos Gay also showed copies from the Register of Probate and the 1961 deed.

 

Mr. Gay is asking for a waiver for the $400 fee per lot for the three lots in view of the circumstances, noting that Judy Andrews inherited this issue. He isn't prepared to pay the application fee tonight and feels there is no liquidity in the estate. He said that Mrs. Andrews is using her personal funds to pay the attorney and other fees. He is asking for a waiver on the public hearing as this situation has been in existence for six years and it appears no one knew until the problem was noticed during the title search.

 

Board members noted that if Poirier buys part of the remaining land now, it would fund the subdivision application fees. The Planning Board does not intend to waive fees but would consider approving the application with the condition that payment of fees to the Town could be made when the sale is completed.

 

The Board noted that there does not have to be a road, and asked if there were any other issues; Mr. Gay did not know of any. He added that there is one lot that has a deeded right of way, which is 40 feet wide. He thought it might need to be extended. He then asked if there was anything else that the Board requires at this time. Board members set the next meeting date for December 20th to continue this matter.

 

New Business:

ED LEBLANC, SUBDIVISION ON BICKFORD ROAD: Remi Caron stated for the record that he would excuse himself from any vote on this matter as he has family involvement.

 

Ed and Sarah LeBlanc owned approximately 76 acres off Bickford Road. On August 16, 2001 they sold approximately five acres to Carl and Debra Sawyer. On December 3, 2004 they sold approximately 25 acres to Howard and Angela Cushman. On November 21, 2005, they sold approximately 46 acres to Steven and Lisa Morse. A portion of this parcel was later conveyed by the Morses to their daughter Kaitlyn, on June 3, 2011. The LeBlancs did not live on the property, and sold three lots in less than five years’ time. They were under the impression that the 46 acre parcel was exempt from subdivision consideration because of its size. CEO Jim Roberts maintains that the 46 acre parcel is not exempt, as part of it falls in shoreland zoning, which renders the entire parcel non-exempt.

 

Copies of the following documents were presented:

• A letter dated November 22, 2011 from CEO Jim Roberts to Ed and Sarah LeBlanc notifying them of the creation of an illegal subdivision
• A letter dated November 25, 2011 from Ed and Sarah LeBlanc to Jim Roberts indicating their intent to attend the December 6, 2011 Planning Board meeting for the purpose of remedying the situation
• A copy of page 5 of the Subdivision Regulation of the Town of Dayton, amended April 2, 1998, and referencing sections 6.2.B, 7.1.B, and 9.1, submitted by the LeBlancs

 

Ed LeBlanc explained that he had no intent to create a subdivision and is willing to work this out so that the subsequent property owners are able to do as they wish with their land.  The LeBlancs feel that the 46 acre parcel is exempt because part of it dries up during part of the year and it is questionable as to whether the water body there is a stream or not. They sold off the parcels of land because of financial needs during two bad years of farming, and needed funds to buy a different piece of land that they had been renting to farm. The Cushmans have not had a survey done, but the Morses have and it was their surveyor who realized that this could be an illegal subdivision. They would like this resolved soon so they may sell part of the land.

 

Jim Roberts felt the question is not whether the stream is dry part of the year, but the fact that if the land is exempt, there needs to be documentation. Amos Gay cautioned that definitions of bodies of water should be observed, as shoreland zoning is determined by the water bodies they contain, which in turn are determined by their sources.

 

Dick Hall asked if there is a common road. (Yes)

 

Board members clarified that the issue is whether or not the parcel is exempt due to the presence of shoreland zoning. Jim Roberts added that if the parcel does not have land in the shoreland zone, then documentation needs to be provided and the Board needs to decide whether or not to accept it.

 

Sarah LeBlanc and Remi Caron asked who is best to determine whether or not the land lies in a shoreland zone. A registered surveyor’s opinion would be best, and any documentation needs to be stamped so as to protect the Morses’ interests in the future. Lisa Morse presented a map, noting that the wet land delineation on it was done in 2006. She questioned whether the land could be considered exempt, as only three acres of the 46 are in wetland status. Jim Roberts replied that the non-exemption applies to the whole lot, and Amos Gay pointed out that a wetland is different than shoreland. Ed LeBlanc said that no one picked up on this in 2001; Jim Roberts noted there is no statute of limitations in zoning. Dick Hall felt the Board has to be careful of setting a precedent.

 

The LeBlancs indicated that if they are required to pay the subdivision application fee, it may constitute a financial hardship. They also indicated that they would expect the application fee to be the amount it was in 2004.

 

Dick Hall clarified that if the exemption does not exist, then this constitutes a major subdivision because of the presence of a road, and the Board has to consider the issue of approving the road and holding it to standards. Sarah LeBlanc noted that there is a house on the property that the Morses gifted to their daughter. Gifting exempts land from the regulations regarding the sale of land within a five-year period.

 

Amos Gay asked if there is a mortgage involved, noting that there may be the issue of title insurance. It was determined that the subdivision was created when the LeBlancs sold to the Cushmans, not the Morses.

 

Dan Plourde asked if wet lands are included in shoreland zoning. (Yes)

 

Lisa Morse asked if the road could be exempt if it was a private road and solely the homeowners’ responsibility. Dick Hall said that it still has to meet some standards.

 

Amos Gay asked to return to the issue of Gould Road, and whether the Board would require a site walk. The Board had not made a determination yet. Amos Gay asked to be notified of a decision as soon as possible.

 

Remi Caron asked if USGS maps are accurate in regards to streams and wetlands. (Not on wetlands) Amos Gay explained that the ordinance calls for topographic maps but does not specify whether they should be 15 minute or 7-1/2 minute intervals.

 

Lisa Morse asked what happens next if the parcel is found to be non-exempt. Dick Hall replied that an application would need to be submitted. Steve Morse noted that when he and Lisa came before the Board six years ago for subdivision approval and then subsequently withdrew their application, no one told them that there was a subdivision problem that had to be fixed. They did not know that there was no statute of limitations on subdivisions.

 

At this point, most members of the public left.

 

The Board discussed whether or not to waive a public hearing for the Gould Road property. There are no new roads proposed, only the right-of-way needs to be addressed. The minimum is 50 feet in width, currently it is 40 feet. This does not necessarily need to be built, but does need to be marked. Frontage is not a requirement, but the set back needs to be met. This would affect the lot with the original house; it would need to give up 10 feet. This piece is held in estate so the owner has control of where the additional land would come from. Soil samples have been done on the other lots and will come into play if someone wants to build, but they are not within the Board’s jurisdiction. The Board decided to waive the public hearing and site walk, but not to waive the $400 per lot fee.

 

Regarding Bickford Road, if the subdivision is found to be illegal, Jim Roberts can fine the LeBlancs retroactively to when the violation occurred. The Board will have to hold the road to certain standards, although there is some discretion with pavement and sidewalks. It is estimated to be 800 feet long. It also has to have some type of turn around.

 

The meeting adjourned at 8:55 PM. The next meeting will be Tuesday, December 20, 2011 at 7:00 PM. Both subdivisions will be on the agenda.

 

 

__________________________________________________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.