Planning Bo= ard Meeting
01/22/09
PLANNING BOARD PRESENT: Linda Hardesty, Sherri Dill, F= rank Kearney, Marty Jackson, Shawn Brown and Dean Bennett
STAFF PRESENT: Melissa Doane, Charles Norburg and Virg= inia Oakes as note taker
PUBLIC PRESENT: Eric Gifford
OPEN MEETING: Chairperson Hardesty opened meeting at <= st1:time Hour=3D"18" Minute=3D"40" w:st=3D"on">6:40 p.m.
REVIEW OF MINUTES: Frank Kearney motioned to accept mi= nutes as written. Shawn Brown seconded the motion. Motion carried.
CITIZENS REQUEST: None
NEW BUSINESS:
Manager Doane addressed the Planning Board: We have a = little problem. The Rowells, Robert and Minnie, came to the Town Council asking for approval on their road. Eric brought to my attention that the dry hydrant h= as not been placed on the subdivision. It was Chief Gifford’s understanding th= at that was going to be a requirement of the subdivision that they had to plac= e a dry hydrant in the subdivision. The Rowell’s contention is that they were required to give a piece of land for a dry hydrant which they did. Being sa= id, the Town Council wants to make sure that developers are responsible for put= ting in their own dry hydrant. That shouldn’t be a cost to the Town.
Chairperson H= ardesty: Was the stuff perused from the minutes from before to see exactly what was said? Did it state it specifically?
Manager Doane= : It may be discussed in the tape. The minutes ate a brief biopsy of what happen= ed at the meeting.
Chairperson H= ardesty: You would like that include in what we’re drafting here?
Manager Doane= : We want to know if it’s a possibility.
Manager Doane= : The second problem is that in filing in November, in April, Minnie and Bob = were approved and then in November of the same year the Wilcox’s for their Pine Knoll subdivision and Mr. Wilcox was told he needed to put a dry hydrant in= and Mr. Wilcox did. So Mr. Wilcox’s contention is that why did I have to put in= a dry hydrant.
Charles Norbu= rg: I think that this is a case of that awful thing called assume. We assumed t= hat the Rowells were going to put it in and that they were required to. They ha= d to provide a piece of land for the dry hydrant which they were going to put in. This was my assumption. It’s the obligation of the developer to put the hyd= rant in.
Chief Gifford= : I know we talked about it. He approached me and asked about the size of the t= ank needed. Then when I was at the Town Office I saw the agenda for a Town Coun= cil meeting to approve the Rowells subdivision and I didn’t get notified on the= dry hydrant or anything. I took a ride up there and didn’t see anything. I didn= ’t get a letter or notification to check it out.
Manager Doane= : Because there isn’t a dry hydrant there. It’s his contention that he doesn’t have to put one in. I haven’t had any controversy with him. That’s what he = said and I left it at that.
Shawn Brown: How much is a dry hydrant?
Manager Doane= : About $5000.
Frank Kearney= : Is there a final plan that shows the location of the property reserved?
Manager Doane= : Yes.
Dean Bennett<= /b>: I’m not familiar with the subdivisions. The subdivision that was approved, the = one in contention, under what ordinance was that approved?
Manager Doane= : Under the old ordinance.
Dean Bennett<= /b>: And the Wilcox’s subdivision?
Manager Doane= : The old ordinance.
Dean Bennett<= /b>: The thing to do is go back and look and see what the ordinance specifically empowers the Planning Board to do, and to review it very carefully. That’s = one issue. I don’t if it says the Town will assume the cost. In the absence of language that says the Town will pay for it, the presumption is that the applicant has to prove the criteria of the subdivision ordinance. I am 99% = sure a legal opinion would be that the Planning Board, in the absence of language that says the Town will pay for it, Case law, Planning Board and Presumptive law is going to say they are responsible for it.
Manager Doane= : So is the Planning Board willing to review the ordinance and write a letter to= Mr. Rowell, stating something to that effect?
Dean Bennett<= /b>: The process should be decision of the Board, have 30 days gone by since the approval of that subdivision?
Manager Doane= : Yes
Dean Bennett<= /b>: By the letter of the law, and I’m not an attorney, there is a thirty day appeal period. Whereas that appeal period is exhausted then it is up to the Town to grant or not grant a hearing to the Board of Appeals, under administrative appeal, to clarify the intent of the language in that ordinance, if the Town wishes to. If the Town doesn’t wish to address this and wishes to maintain = that it’s required then we need to get a legal opinion as to what to do.
Manager Doane= : Should we get a letter from the Planning Board that that was the intent of = the Planning Board.
Dean Bennett<= /b>: Anything this Board says needs to be substantiated by going back to the minutes, go back to the specifics of the ordinance, If the Board can go bac= k to the old ordinance and say as stated in such and such, our determination was, our presumption was the burden was on such and such. So we render our decis= ion in good faith that this is what our presumption would be. If possible, idea= lly the Board can point to where in the ordinance it says it. In the absence of specific language, maybe there are minutes where that was discussed. If min= utes aren’t available or recorded then we are hard pressed to take a position th= at that’s what we ordered, or that that’s what our understanding was. At that point we’d be better off of have a legal opinion come in and say the do pro= cess of the subdivision approval public safety of it is that it is the burden of= the applicant. What can happen is the Planning Board can say yes that’s what we ment, then we’ve rendered a decision that is appealable because we’ve made a new decision. So we open our door up to additional action for another decis= ion we’ve made, whereas, we really don’t even need to make a decision again. I wouldn’t suggest we do that unless we have some good standing to make that decision.
Manager Doane= : Ok Dean, so what are we going to do?
Dean Bennett: I am not familiar with the old ordinance= , I have no personal recollection of this. That’s why I’m being careful how I answer this. And from the perspective of any appeal process, there of the s= ame position that I’m in, show me the evidence. Show me where they drew that decision out of the ordinance. If you can’t do that then I would go to the = Town Attorney and ask him to render an opinion on it. I think we should review t= he language of the ordinance, go back and see if there were minutes there reco= rded or printed or check the plan itself to see if it’s noted on that plan becau= se it’s an enforceable document and it’s registered in the registry of deeds. = That in fact might be the answer if it’s on there ultimately if it’s on there it= ’s the obligation of the applicant to fulfill that. So first step is to review= the minutes and any documentation we have, carefully review the existing ordina= nce and those members that rendered the decision should really review that and = I’m willing to help review it if you’d like to see if the language is in there = that clearly says we required it and this is the section of the ordinance empowe= red us to make this decision and that’s what we based the decision on. I would = not recommend that the Board address it again. They’ve addressed it once and ge= t a legal opinion presuming this is what the Board did, where we stand legally = if we have to enforce that.
Manager Doane= : The minutes from the April 26th meeting, which you were present = at, just says, Oscar Emerson, Down to Earth Professional Land Services, representing Robert Rowell in Phase II of Highpoint subdivision, came before the Planning Board for final plan approval. Public Information hearing notification have been completed, a place has been designated for the dry hydrant on final plan along the 100’ cul-de-sac. It goes on to state that t= hey completed the check list.
Dean Bennett<= /b>: If I remember correctly, the Town had 13 of the 19 criteria at the time in that ordinance. I think I made that motion to approve that. I remember carefully wording it to say that the criteria have been reviewed.
Manager Doane= : Final approval, Bennett made a motion that all criteria including timber harvesting in Title 30A 4404 State of Maine Subdivision Law have been met a= nd was seconded by Dill.
Dean Bennett:= I based that motion in consistency with State Law. I didn’t look at the ordinance. If you’ve got 2 approvals under the same ordinance and one was d= ealt with one way and one was dealt with the other way, I think in the interest = of consistency the decision needs to be made by someone, whether thru the Plan= ning Board’s help in reviewing or legal opinion as to where the Town wants to ta= ke a position on it.
Sherrie Dill:= Don’t we need to go back further than the final approval to see what was st= ated as to why he was told that a dry hydrant was needed, because I don’t think = the Board ever led him to believe that the Town was going to pay for the dry hydrant.
Marty Jackson= : Criteria were met by providing a place for a dry hydrant, right?
Manager Doane= : Right.
Sherrie Dill:= We discussed with him putting a dry hydrant in, maybe we need to go back that = far and get that conversation. Did he come to you, the Fire Chief, or was there ever a letter stating that we wanted a dry hydrant.
Chief Gifford= : The day of the Planning Board meeting I met with Charlie in his office and discussed and I came to the Planning Board meeting that evening.
Manager Doane: So what I’ll do is go back and get those minutes and get those typed verbatim and be available here in the office. T= hat will be step one. We can bring that to the next Planning Board meeting. Town Council is looking for Planning Board action.
Dean Bennett:= I’m willing to help you review those. What we’re looking for is language saying that they don’t have to pay. The whole subdivision law is the burden of pro= of is on the applicant and the criteria is, is there sufficient water, quantit= y, and quality to meet the needs in the subdivision. This pertains to not only drinking water but water for emergencies services and all that. You say here are the criteria, you’ve got to meet it come to us with what you’ve got. An= d if a dry hydrant was even mentioned or discussed, the reason for that would be= a necessity to meet the criteria. That burden is without question on the applicant. On the first section, there is a dry hydrant there right?
Manager Doane= : Yes, but the Town put that in with a forestry grant.
Chief Gifford: I was on the fire department; we had a = couple put in and had a couple put in with the forestry grant.
Manager Doane= : The subdivisions were approved without any consideration for hydrants. The forestry department brought it to the Town’s attention.
Sherrie Dill<= /b>: I remember because with the first subdivision, their argument was they were c= lose enough to the Town hydrant. They felt they were close enough to the hydrant that they didn’t need to place a dry hydrant. I remember bringing it up.
Dean Bennett<= /b>: If that opinion was rendered, it has to be rendered by someone responsible for fire prevention. The applicant can’t say, we’ve decided we close enough.
Manager Doane= : Charles, could you write a letter that we are investigating the responsibil= ity of a dry hydrant?
UNFINISHED BUSINESS:
A review of the subdivision checklist and application = was done.
Charles Norbu= rg: Let’s go through what is required on there.
Dean Bennett<= /b>: These are great for a Code Enforcement officer to do the intake on. They fi= ll it out, the applicant gives it back, all the information is here as per the ordinance. Charles, ideally would go through and check all these on our beh= alf. This here is another checklist for preliminary detailing all the necessary submittal information which he can review on behalf of the board and provid= e us this with the plans that have been submitted. What we need in my opinion is= a checklist of the criteria.
Charles Norbu= rg: I wasn’t thinking of it that way.
Dean Bennett<= /b>: I trying to shorten, up as a staff person you could help us prepare for the review of the criteria. To me it makes sense that the CEO do this and make = sure everything is there and in essence report to us the application materials a= s a whole. Then the Planning Board’s responsibility would be to go down through= to review the criteria to determine whether they have met the criteria or not.= Our motion is not to determine is not to determine whether the application is h= ere, it’s to determine if the criteria has been met. What I was looking for is a checklist for the Planning Board. To me that’s the best use of the Planning Board’s time and you’re the staff person and if you need more time to do th= at in the allocation of hours than we as a Planning Board should support you.<= /p>
Charles Norbu= rg: So the applicant comes in drops this off, 2 weeks he scheduled to come in a= nd I go through this and find something missing, what do I do then?
Dean Bennett:= Call him up, tell him you have so many days until the meeting and you need = this and this. Ideally we’d have a cut off date when the agenda has been created= . If that material isn’t to you by the time that agenda goes out then they have = to wait until next month. That way you’re protecting yourself under the right = to know law, in that you are posting the agenda, it’s detailed, information has been collected, and it is available to the public.
Charles Norbu= rg: Is everything on here that we want on here?
Dean Bennett<= /b>: Yes, I think that this is the most efficient way to do this. In Hampden, wh= en a developer comes in to do a subdivision, we as a department get together and review his sketch plan before even going to the Planning Board. The departm= ent heads all sign of on the sketch plan. The staff works with the applicant 2 weeks, 2 months, whatever it takes to get them ready to go to go to the Planning Board. So when that applicant goes to the Planning Board he goes w= ith the endorsement of the department heads of the Town and a checklist from the CEO verify everything is done. It also has a cover sheet saying maybe Public works director has these concerns, or the Fire Chief has these concerns. Th= en the Board goes what they are supposed to do that criteria and has it been m= et. That way there are to repeated visits to the Planning Board, it’s a one shot deal. It’s in there best interest that they are prepared.
Charles Norbu= rg: Missy wanted a checklist, to make sure things weren’t missed.
Dean Bennett<= /b>: The law requires that an application be deemed complete before any action can be taken by the Planning Board. That can be done at the staff level.
Charles Norbu= rg: I don’t want to do that all on my own.
Dean Bennett<= /b>: The idea is the Board has to make that finding at some point and it would be mu= ch easier if you review that material, not to the extent that has they met the criteria but is it here. Then it comes to us, and we ask if everything is h= ere. We quickly review the application and deem it complete then start the revie= w of the plan. By deeming the application complete, we also start a legal time frame. The law requires us to act within 30 days of deeming an application complete. We are on the hook as according to legislation according to how timely we have to act and the steps we have to take.
Charles Norburg: The sketch plan could be coming in on= the night of the meeting.
Dean Bennett:= We’re responsible for review and approval of the sketch plan but as far as assembling the material for submission for us to do our job. I don’t think = we should be doing that, that’s a staff function of the Town of Bradley. The T= own should be paying staff people to do that in the interest of facilitating development.
Charles Norbu= rg: On the bottom of the application where it says for office use only, it shows sketch plan was received by me, reviewed by Planning Board. The Chairman wo= uld initial the original copy; the scheduled site inspection would go on there = that night, whether it is a preliminary or final and the date when that meeting = was schedules for and public hearing date. This would all go onto the bottom of that form.
Dean Bennett:= I like this. Here’s the information that the ordinance details needs to be th= ere. It’s provided to us at the time of the meeting, we can review it, ask quest= ions or whatever. Everything is verified; let’s move on to the review, we do eve= rything down here that night. If we had a preliminary review designed the same way where we went through the checklist and submission materials. Then at the bottom, here are the review steps by the Planning Board, whatever those ste= ps are that the Board has to take detailed on bottom. The final would probably= be 3 pages long. You’d have an attachment with each criteria with a thing of m= et, not met, or consistent or inconsistent and reason why that would be perfect= . If you need more time to prepare this Board to follow the law and be consistent with the review of every applicant that comes then we as a Board needs to s= tep up and say something.
Charles Norbu= rg: I don’t like the idea of someone coming in for a sketch plan review next we= ek. Two weeks should be the minimum.
Dean Bennett<= /b>: There should be a date of material submission to you, then 2 weeks later, a date where there is an agenda deadline, and then you decide who get on the agenda before the day the agenda goes out. Have they met the requirements to get on the agenda?
Dean Bennett went on to review the zoning map with the Planning Board. They went over each zone and what would be acceptable or not and who would be responsible for approving it.
NEXT MEETING: February 19, 2009 @ 6:30
ADJOURN: Motion to adjourn at 8:50.