PLANNING BOARD MINUTES
WEDNESDAY, SEPTEMBER 17, 2003
MUNICIPAL BUILDING COUNCIL CHAMBER – 7:00 P.M.
Present: Mike Tuell, Mark Kittridge, Andy Perkins, Chris Dorion, Eloise Kleban, David
Thompson, Christa Schwintzer, Eric Landis and David Sewall.
Acceptance of the agenda.
MARK KITTRIDGE MOVED ACCEPTANCE OF THE AGENDA. CHRIS DORION SECONDED THE MOTION. MOTION UNANIMOUSLY APPROVED.
Approval of the minutes of August 20, 2003.
CHRISTA SCHWINTZER MOVED APPROVAL OF THE MINUTES OF AUGUST 20, 2003. MARK KITTRIDGE SECONDED THE MOTION. MOTION UNAIMOUSLY APPROVED.
Public Hearings.
Holly Kinerson explained she is a licensed massage therapist and would like to run a business from her home. Her home is currently under construction and should be finished by late October. She plans on a part-time business with only one to three clients per week. Traffic will be minimal and she has no plans for a sign.
Mark Kittridge asked if the number of clients were going to be spread out or all in one day? Holly explained that they would be spread out.
Mark Kittridge asked if she had received the ordinance pertaining to home occupations and was told yes.
Mark Kittridge asked about deliveries. There will be standard mail and UPS only.
The public hearing was closed.
MIKE TUELL MOVED APPROVAL OF THE HOME OCCUPATION REQUEST BY HOLLY KINERSON TO LOCATE A MASSAGE BUSINESS WITHIN HER HOME LOCATED AT 24 SUNSET DRIVE, TAX MAP 31-1 LOT (PORTION OF) 26. CHRIS DORION SECONDED THE MOTION. MOTION UNANIMOUSLY APPROVED.
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Mike Tuell informed those present that only board members David Thompson, David Sewall, Eric Landis, Christa Schwintzer and himself would be eligible to vote on this, but that other board members could participate in the discussions.
Tom Russell reminded the board that the court has remanded the issues of the sidewalk waiver and the drainage issues back because the board did not make a decision on those issues. New testimony on those two issues can be accepted by the board as they decided at the last meeting.
The board will have to make a determination if the application meets the sidewalk waiver provisions and the criteria in the ordinance and the state subdivision statutory criteria on drainage.
Chris Ruge, legal counsel for Milos Blagojevic, went over the procedural situation with this. Milos had presented a preliminary plan, which was approved March 20, 2002. There were 3+ subsequent hearings on the subdivision with final approval on July 17, 2002. The court has remanded back findings of fact on some specific issues and how those issues were satisfied by record that was presented to the board. He feels this case is still maintained within the jurisdiction of the Superior Court and only remanded to the board only for further findings of fact consistent with the order. This was not remanded for a de-novo hearing or to start all over and take new testimony. The board is limited to the two issues only on the sidewalk and drainage. It has come back to clarify not to decide whether it is approved. He would like to register his objection to reopening the record, but if the board would like to continue on that basis he does have some new information that he feels will be of some assistance.
Sidewalks were decided at the time of preliminary approval on March 20, 2002. He referred the board to page 24 of the transcript from that meeting, where Milos’s plans were submitted prior to that meeting and it showed no sidewalks on the sketch and in the written submission he requested a waiver on the sidewalk. He read from Milos’s written submission the following:
“Eagle Crest Drive is a 50 foot right-of-way, 24 foot paved proposed street with ditches along and a cul-de-sac. We are asking that the existence of sidewalks be waived for several reasons: The subdivision is too far from any public parking and about 5 miles from the center of Town and lots do not start on one side for approximately 740 feet from Forest Avenue. People living this far out usually prefer walking in their own yard than in the street and that upkeep and maintenance of the sidewalk this far out is an undue burden. Building setback
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lines are per zoning requirements. There are some other open spaces proposed that may become public.”
Chris Ruge explained that this was in the record of appeal but not in the material Tom Russell asked to be provided to the board.
Back on page 24 of the transcript, the board is reviewing the ordinance and the fact that the approval of the preliminary plan is not approval of the final plan, but it is the time at which you need to make changes. On page 28 of that transcript the only change suggested is the inclusion and construction of a street light at the end of the street; no other changes were required by the board at that time.
The preliminary plan including the waiver was approved at the end of that meeting and as indicated on page 30 of that transcript. No one other than Milos had mentioned the sidewalk requirements at the July 17, 2002 meeting; it came up again at the final subdivision review. On page 32 of that meeting transcript Mike Tuell reviews all of the street requirements and asks if anybody on the board or anybody sees any way in which there is no compliance. The only person who speaks at that point is Milos who steps up and says, “we have asked for a sidewalk waiver, it was granted as part of the preliminary plan and we just ask for a confirmation of that”. At that point Mike Tuell asks if everyone recollected that and there is an indication that yes they have. The transcript indicates only one person responding, but on the videotape it is very audible that multiple people indicated they recollected this waiver was granted. Chris played the video of that meeting with this portion of the meeting cued up. No one in the audience objects to that, including the abutter and his wife and his legal counsel. The waiver was approved on March 20, 2002, that approval was confirmed July 17, 2002.
At the beginning of last month’s meeting Christa Schwintzer stated the waiver was granted because “we felt this was a very rural place with a very small amount of traffic and there was no sidewalk for the traffic to connect to”. Mike Tuell recalled this was his recollection of why the waiver was granted. The court can not remand this case instructing the board to make a different decision than the one they made before; it remanded the case so the board can make clear the factual findings they had to make in order to make that decision of approval.
Tom Russell felt the board did not make the decision on the sidewalk waiver and so that decision needs to be made. Even if they did make the decision they did not articulate why it met the waiver criteria. The judge made a finding that there was plenty of discussion about it and perhaps approving of those plans may have been an inference that the waiver was granted but there was nothing in the record that showed they actually voted on the waiver. The board is not reaffirming a decision on the waiver, they need to make a decision on it now and then articulate the reasons; either way, yes or no, they have to articulate the reason.
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Chris Ruge felt the reasons, going back to the preliminary plan, for granting the waiver was because this is so far out, it doesn’t connect to any other sidewalk, it is a very low traffic situation, there is a 50 foot easement with 24 foot paved area and 4 foot walk able shoulders on each side. Not only are these special circumstances that would tend to make a sidewalk out there not feasible and not make sense for the Town, but also the safety issues are addressed by the fact that this is a cul-de-sac, this does have these large shoulders on each side for walkways and it meets all the ordinance criteria for granting a waiver. Those points were discussed several times by the board. He has new evidence that he would be happy to share with the board if they wished regarding sidewalks.
Mike Tuell asked for comments and feedback from board members on how to proceed.
Christa Schwintzer still feels they should listen to all evidence and information that might be relevant that people want to give the board.
Mike Tuell asked Christa Schwintzer if she needed to hear additional information before making a decision? Christa would like to make a decision based on all the information that is relevant which means she wants to hear the information.
Chris Ruge stated this is not a matter of dollars vs. children. He presented to the board a list of Orono pedestrian crashes done by the Orono Police Department from 1998-2002. The report showed a total of 981 crashes with only 10 involving pedestrians and almost all if not all occurring on or about the University.
Next he passed out photos of recently approved subdivisions that were developed without the development of a sidewalk. Most of those don’t even have the walk able shoulders that are being proposed on Eagle Crest Subdivision. Those photos showed Sylvan Road, Pinewood, Westwood, Willow Drive and Edgewood Drive, all with no sidewalk and grass up to the road. There were no pedestrian crashes on any of those streets.
Christa Schwintzer asked what he meant by “recently approved”? Chris replied within his lifetime.
The traffic study including the application for a driveway entrance permit was passed out indicating the number of cars per day on Forest Avenue at a little more than 2,000. The added cars per day based on the added subdivision was estimated to be 76.
A letter from Per Garder dated August 25, 2003 was presented to the board. Chris explained that in his letter he indicates … interrupted by Mr. Miller.
Mr. Miller objects to this report because the individual is not here to be cross-examined and they have not had time to review his report.
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Per Garder states in his report that he feels that in his professional opinion “there would be few streets in the state that were safer to live on than this one even if it is built without sidewalks”.
At the last meeting safety was an issue with the sidewalks. Safety is met by the street having the broad shoulders. This specific street as proposed is safe even without a sidewalk. Combining that with the reasons for the waiver that were originally presented to the board in the preliminary plan and the reasons the board has reviewed repeatedly, he thinks it is clear they have met all the statutory criteria and that there are special circumstances to this subdivision that warrant the waiver of the sidewalk and that the affect of waiving this requirement will not nullify the purpose and intent of the ordinance. The purpose and intent of the ordinance is to promote health and safety of individuals in the Town and that is not damaged by waiving the sidewalks here. He feels the plan as approved and provided to the board does meet all the statutory and ordinance related criteria and should be granted.
Christa Schwintzer felt at the last meeting they spent a great deal of time looking for an alternate way for safe circulation of especially children in the community and Mr. Ruge is suggesting that the broad walk able shoulders will do that. She asked if there were any plans for making sure that those shoulders are walk able to begin with and to maintain them in that condition. Can this be addressed by assuring the board that those shoulders will be walk able and not grow up in blackberries or something that is not walk able? Chris replied absolutely; the surface being installed retards the growth of plants.
Aaron Shaw, Milos’s engineer, spoke about Christa’s concerns. He felt crushed stone and gravel is usually used for the shoulder construction and when first installed it is rolled at the time of construction. Typically gravel does not support vegetation very well. Beyond the gravel they will mulch and seed and have grass in the ditches. These gravel shoulders should be a good walking surface.
Christa asked who would be responsible in taking care of those shoulder areas? Aaron understood the road would be turned over to the Town.
John Robichaud anticipates that upon successful completion of the subdivision and after being reviewed by an engineer, the owner will approach the Town Council to accept the road as a public way. Acceptance of the road as a public way is not a mandatory issue; it is the Council’s discretionary action. Until the Council acts on it one way or the other he cannot say whether it will remain private or become a public way.
Mark Kittridge asked if that acceptance was for the whole 50-foot right-of-way and John Robichaud replied yes.
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Christa Schwintzer felt with the presence of walk able shoulders the intent of the sidewalk to allow people to circulate throughout the community and not be in the same place as the
cars are has been met and the board can waive the sidewalk on the grounds that this function is served by the walk able shoulders.
Chris Dorion asked if this was the total build out (8 houses) at this location or is it Phase 1 of a larger project with a safety concern for the future?
Mark Kittridge stated the board is required to review the plan that it has in front of them; you cannot predict what is down the road.
John Robichaud felt if this raises an issue on an application to expand then it would be dealt with at the time the board would be dealing with that issue.
Mike Tuell asked for comments/concerns from those members eligible to vote.
Eric Landis feels the key safety issue is how fast the cars are going. He feels the safety issue is not as big a concern as it stands right now.
David Sewall asked the speed limit on this road? Aaron Shaw felt it was 25 m.p.h.
The posting of the speed limit would be an action taken by Public Works and the Town Council.
David Thompson visited the site earlier in the week. He feels it will be extremely hard to put sidewalks in, as there is ledge on one side and a drop-off on the other. He feels the applicant has proven a hardship, which was one of the reasons for a waiver.
Mike Tuell felt they were in agreement.
Robert Miller felt they were getting away from the ordinance, which provides the standards that the board is to apply here and they are getting into a “gut reaction” situation. In reference to the photos of streets he does not recall when they were developed and he is older than Mr. Ruge. He lives on Chapel Road and it doesn’t have sidewalks either and Mr. Ruge did not include it in his submissions. He feels the ordinance says every street that is developed in the future will have a sidewalk unless you met the waiver requirements. He feels the developer has already built the road and it may be difficult to build the sidewalk and that is a risk the developer took. He felt the board shouldn’t waive the requirement just because the developer created a hardship for himself by building a road and creating a problem as David Thompson makes reference to. He felt the plan originally presented to the board provided plenty of room for a sidewalk. He feels there is no reason a sidewalk cannot be established on this street for the benefit of everyone living in the subdivision. His client wants a sidewalk and it is not fair to him
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and other members of the public that the board grants a waiver under these circumstances. He asked if it was reasonable to conclude that the rest of the property was going to go undeveloped? Obviously not and Milos Blagojevic may not have any present intent to increase the size of this development but he is a businessman and a developer, this is not his first project and he knows what he is doing and if there is an opportunity for him to make a profit to either sell this property to someone else to expand or to do it himself it is reasonable to conclude he is going to do it and you need to have in place streets and sidewalks that will take care of the needs of other people on the property. He felt the board should look at Section 18-82. He asked what the extraordinary and unnecessary hardships were that any other developer doesn’t have to face when they are developing property of this nature? It was not shown in any of the previous hearings. He asked what are the special circumstances if the hardship criteria couldn’t be met? If the waiver is granted what conditions will the board put on it to insure the needs of the people who live in this subdivision and the general public are served? He felt if the board found a hardship, the ordinance doesn’t give any clear-cut guidelines on the waiver issue. He felt it did give them standards they could follow under the variance provisions. He suggested they use that for guidance. He read the criteria for granting a variance based on hardship that is used by the Board of Appeals substituting the term “waiver” for the term “variance” throughout those criteria. He felt a waiver for hardship should not be granted because it is a self created hardship in his view and should not be considered.
Chris Ruge stated that what Mr. Miller summed up with is not applicable here and that Section 18-82, subsection (a) is applicable. He referred the board to Tom Russell’s letter of August 11, 2003. The relevant factors here are whether the requirement will result in extraordinary or unnecessary hardship, which they are going to set aside because he feels they are dealing with special circumstances. He feels number 3 has been taken care of with the walk able shoulders because it will not nullify the affect because there is a safe place to walk and that also takes care of number 4 in Tom Russell’s memo. He urged the board to apply the appropriate standard here and not some other standard relating to variances because that is not what they are talking about.
Mike Tuell referred the board to a memo dated August 11, 2003 from Tom Russell in which Tom outlines on page 2 what the board should be doing.
Mike Tuell felt earlier the 5 voting members were in agreement on the sidewalk waiver and asked if that had changed? All indicated they were still in agreement.
Tom advised Mike Tuell that when he polls the members he get their reasons for voting the way they did at that time.
MIKE TUELL MOVED TO WAIVE THE SIDEWALK REQUIREMENTS FOR THE EAGLE CREST SUBDIVISION FOR REASONS OF SPECIAL CIRCUMSTANCES OF THIS PARTICULAR SUBDIVISION THAT WARRANT THE WAIVER OF THE SIDEWALK REQUIREMENT. ERIC LANDIS SECONDED THE MOTION.
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Eric Landis felt there was no hardship and supports the special circumstances based on geography and topology.
David Sewall stated that is the same sense he has. The particular location of the roadway is in a location where adding a sidewalk is not feasible.
Christa Schwintzer agreed there were special circumstances being the remote location, the relatively low traffic on the road and she thinks that there should be assurances that the shoulders will be walk able because they provide an alternate means of allowing people to circulate in the community, which is the whole purpose of the sidewalk.
David Thompson agreed with what has been said.
Mike Tuell agreed and cited special circumstances, the rural location, inability to make it fit with the topography. He is certain the shoulders as provided in the plan will secure the same objectives as the sidewalk requirement.
The board voted as follows: MOTION UNANIMOUSLY APPROVED. The waiver is granted.
Tom Russell felt they should deal with the two items in his memo, number 3 whether the waiver will nullify the purpose of the Land Use Ordinance, Comp Plan or any other ordinance and number 4 what conditions will be required to secure substantially the same objectives as the sidewalk requirement.
Mike Tuell did not feel the waiver would nullify the Land Use Ordinance, Comp Plan or any other ordinance and all were in agreement on this.
On number 4, the conditions, Mike Tuell felt the shoulders of the roadway would serve substantially the same objectives as the sidewalk requirement. All members were in agreement on this issue.
The board took a 5-minute recess.
Drainage issues were discussed next.
Mike Tuell again referred the board to Tom Russell’s memo of August 11, 2003 in which he outlines the parameters with regard to drainage.
Chris Ruge felt they were deciding on ordinance sections 18-210(c )(1-5) and also discussing 30A MRSA ss. 4404.
On Section 18-210( c)(1) the developer has shown where the drainage facilities will be located and how it will all look.
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On Section 18-210(c )(2)(a) those concerns are addressed by the second revised storm water analysis and subsequent revisions of that analysis going up to revision number 4 which they received today. Exhibit 36 of the appeals record (2nd revised storm water analysis) shows that these facilities are large enough. The April 8, 2002 letter of Mandy Olver also refers to this issue, as does Aaron Shaw’s letter of April 12, 2002 indicating he was including all of the area in the watershed, as there was a little area that wasn’t shown. In the May 10, 2002 report of Mandy Olver she indicated she no longer has an issue. He feels that both Aaron Shaw and Mandy Olver had indicated that the plan was in compliance on that point. He also felt they were not overloading the system or flooding areas not specifically designated to be flooded. The areas to be flooded are indicated on the final plan as the drainage easements that will be conveyed to the Town pursuant to this ordinance. The design of the piped or open channel systems will be based on a 10-year flow frequency without overloading or flooding beyond the channel limits as shown on the plan.
Section 18-210(c)(2)(b) dealing with a 24-hour storm and the rate of flow of storm water from the development not exceeding the rate of outflow from the site prior to development was shown in the 2nd revised analysis and reviewed by Mandy Olver. He feels they are in compliance and meet the criteria of the BMP’s (Best Management Practices) set forth by DEP.
Section 18-210(c )(3) has been reviewed by the Town Manager.
Section 18-210(c )(4) pertaining to floodplains was discussed. Chris does not feel this is in a floodplain and this section does not apply. The FEMA flood maps were checked to verify this.
Section 18-210(c )(5) easements for public drainage will be turned over to the Town. This is something the board needs to do as part of their approval and not something that the developer has to do. These are shown on the final subdivision plan.
Chris Ruge went over 30A MRSA, ss. 4404 as indicated by Mr. Russell as the last drainage issue to deal with. He feels in looking at the proposed subdivision it will provide for adequate storm water management. There have been three engineers to review this, Mr. Shaw, Ms. Olver and Mr. Frank. Mr. Frank in his letter to the board indicated his review of the hydrology didn’t indicate any issues to him. All information points to by all reasonable professional standards that this provides for adequate storm water management pursuant to state and local guidelines.
Mike Tuell asked Tom Russell if what he was reading in Mandy Olver’s letter dated September 16, 2003 has to do with what is on the ground as opposed to what was in the plan? Tom felt the report speaks for itself. He feels they are reviewing the application
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before them, if there are construction deficiencies or anything of that nature it is an enforcement item for the Code Enforcement Officer or Town Manager or Town Council
when they decide whether or not to accept the road and whether it is completed in accordance with the approved plan. He feels they look at the plan that has been submitted to them and make a determination based on the evidence presented to them and whether it complies with the ordinance criteria. Tom felt in reading Mandy Olver’s letter there were some issues which he feels were addressed by the submission the board received this evening that the storm water management analysis was based on corrugated pipe and the plan showed plastic pipe that has a faster time for the water to run through it, so he feels the adjustments have been made to the storm water management analysis to reflect the use of that pipe that is shown on the plan.
John Robichaud felt once you review a plan as meeting the requirements, either they have to comply with the plan or they would have to amend their application to come back before the board to get an alternate plan approved.
Mike Tuell asked who determines if they are complying with the plan or not? He felt they either had to hire Olver Associates or someone like them to do that, as we don’t have a Town Engineer.
John Robichaud stated the Town is going to continue to retain Olver Associates to review this project until it is completed if it is finally approved.
Mike Tuell asked what their lever was to ensure compliance? Is it acceptance of the road or their restriction in selling lots until it is signed off as being built according to the plan?
John Robichaud felt if there were deficiencies and they don’t meet the approved plans it then becomes a violation, which is actionable. Tom Russell will also be in on this up until it is taken care of one way or the other.
Mike Tuell asked if Olver Associates was retained to oversee this project on behalf of the Town until it is completed? John replied yes.
Robert Miller disagreed with Tom Russell. He explained that Mandy Olver did some review of the design at the request of the Town when going through the design process prior to final adoption and she found a number of problems with the plans and as a result there were revisions. After the plan was approved, the developer’s engineers ceased to be involved for any practical purposes. He understands Sewall Company had no direct involvement with the construction activity that has taken place out there. In his view what has happened is that the developer has gone forward and built this and it now has been shown as a result of Rob Frank’s report and now the report from Mandy Olver which they received today that the developer has been building this project in a manner which is not in compliance with what the plan was previously approved. He feels this is relevant
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because this project is not being inspected during the construction process. He feels because of Mandy Olver’s inspection she has pointed out several deficiencies, some of
which came up because of Rob Frank’s review a month ago and still not corrected and others that came to light because of her report. It is important that she continues to be a part of this process until the project is completed. He felt the road had not even been looked at and no one knows what has happened there. The report on the berm that was created as part of the drainage system, no one knows what is in that berm, no soils analysis has been done to determine whether it will support the amount of volume of water that is projected to pass through this drainage system. He felt it did not do any good to design something and then build it in a manner that doesn’t comply with the design in the modeling.
Mike Tuell stated they couldn’t help with that; this board does not oversee that.
Robert Miller felt yes they can because what has happened as a result of this remand, they need to approve this drainage plan based upon the conditions as they exist today and not on a plan they reviewed over a year ago. If this is going to be approved he feels they need to make as a condition that he complies with the deficiencies that were pointed out by the engineers. He feels this also needs to be monitored by an engineer at the developer’s expense. His client had to hire his own engineer to find out that there are problems and the Town has spent taxpayer’s money to address these issues as well. If this is approved these conditions need to be made clear. For the record he asks that the letters of Rob Frank, Mandy Olver and Aaron Shaw be included as part of the record. He feels because the project is 75% done the board needs to look at what is there today. He feels that because no one knows what is in the berm, that S. W. Cole would need to come in an evaluate the berm at the developers expense to ensure it complies with the design standards. He feels the drainage easement should be conveyed to the Town, as they are a part of the road system. Because the town if going to accept this, they need to make sure it complies with the ordinance and should be made as a condition; a condition of on-going inspections and reports until this matter is finally taken overtaken by the Town. He feels Mandy Olver’s letter indicates changes. He feels the board needs to require the developer to revise his submittals to this board to reflect what is taking place out there. On the issue of administration vs. enforcement, the ordinance indicates that the Planning Board is responsible for this plan through the design phase and until it reaches a point where it has received final complete unequivocal approval. He feels the Code Enforcement Officer is responsible under the ordinance to enforce the ordinance in respect to violations of the ordinance. He feels the violations in an ordinance sense do not come to fruition until after the project is finished. Then if there are violations he has the ability to enforce the ordinance and seek a fine or whatever.
Mandy Olver was asked by Mike Tuell if her services had been retained by the Town of Orono? Mandy replied yes she is working on the Town’s behalf to oversee this project.
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Her role thus far has been to do an evaluation of the construction that has occurred to date and produce the report that she did. She is not sure if it is actively going on at the
moment and no one was on-site when she did her review. In the past an inspector has been on-site when needed either full-time such as when laying pipe or on an intermittent
basis to check grades and make sure everything is in conformance with a plan. There is no specific scope of services from here to the end of the project but she thinks they will be going there as needed to make sure it gets built according to the approved plan. They will have to do a little backtracking and test the berm to make sure it is in compliance with the ordinance.
Mike Tuell asked who paid for the engineering reviews? John Robichaud stated there are funds held in escrow.
Mike Tuell felt they are already doing what they are being asked to do and John replied he believes they are on track.
Mike Tuell asked if Mandy’s report of September 16th was based on what was on the ground? Mandy replied that was the primary focus of this review. She doesn’t believe any of the management plan done by the Sewall Co. has changed. She has not reviewed the calculations done by Aaron Shaw dated September 17th but if they have no problem with his calculations his conclusion is that even with what was found to date, even though it varies from the approved plan, it still meets the intent of the storm water management plan which not only retained the peak flows in the future to be equal to the present flows but actually reduced them slightly.
Mike Tuell asked about different materials used and things occurring in different tolerances that she finds acceptable. Mandy Olver basically went out with two objectives (1) She had the approved plans and went out and surveyed what had been done to date, which was about two weeks ago on the 4th. She did a general conformance review with the actual elevations and the approved plan vs. what was there. Some things were close and within a couple of inches and some things weren’t so close and those things she knows affects the capacity of the culverts, which affects the storm water management. What she didn’t know without doing the model over again was what the bottom line impact with that would be. Based on Sewall’s calculations, there is none. (2) She addressed the concerns in Mr. Miller’s and Mr. Frank’s letters.
Mike Tuell asked if she reports findings that vary from the approved plan to whom? Mandy replied usually when they are out there working with a developer at the same time it is installed they try to head that off. In this case she hasn’t specifically gone over the elevations. She has the measurements and she has all the information of what it would take to reset culverts at the right elevations and they could alternatively see if there has been a true change in the intention of the capacities of the culverts; there is some tolerance to change grades and slopes and sizes and still meet the intent of the ordinance.
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This does happen and is a pretty routine thing to change pipe materials and sizes as long as it stays in conformance with what the board has approved.
Mike Tuell asked if in her opinion have those things have varied in a substantial enough way as to cause her concern that she reported to the developer or to the Town, have those
items been addressed and corrected? Mandy stated her report was only issued yesterday (September 16, 2003) so no one has had a chance to correct anything. Customarily you allow small changes that never come back to the board. Sometimes site conditions will warrant those kinds of changes. She cannot say these were all warranted but in one circumstance the two most significant changes besides the minor changes in grade is that one driveway and its culverts were relocated. The only reason this was noticed was because there is a detention pond proposed upstream of this, but based on Sewall calculations it appears that even with that change the detention is still achieved. She has not reviewed those calculations but if that were the case she would not normally say that was something that needed to go back to the Planning Board for a modification and that it would be in conformance with what the board had approved.
Mike Tuell asked if in her professional opinion there were conditions that exist on the ground out there now that would cause us to view or review differently the original storm water management plan that was approved? Mandy replied no, she thinks the plan in general is still applicable.
Mike Tuell asked Tom Russell if it was his opinion that the board is still talking about the plan as it was proposed to the board in July 2002?
Tom replied that was correct, the applicant has not submitted any revised plan to show the changes that have been discussed so what is before the board is the original plan submitted.
Mike Tuell asked Tom Russell if there was anything about this application that would require the board to require any greater oversight or scrutiny from an independent third party engineer more than what has already been done?
Tom replied it is not his area of expertise. He still maintains that is for the Town Administration to decide. He feels a revised plan should be submitted to the Town that conforms so that we have something on paper that has been approved, we know this is what is out there, these are the changes and the engineers say the outcome is still the same and is still a good storm water management plan. We need something so that when the Town goes to accept that road we know what it is that is supposed to be out there.
Mike Tuell asked if there was any board member who feels that the board needs to get into enforcement of what is actually on the ground out there any more than what has been done by securing the services of an engineering firm hired by the Town at the developers expense?
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There were no comments from board members.
Rob Frank, WBRC, visited Mr. Rioux’s property at his request approximately a month ago. It was a casual review; he did not seek permission or access the applicant’s site. His
findings were around Pond 2P of the Sewall report. He looked at the Sewall report and he found the hydrology methodology, the findings, to be within generally accepted practice. In reading Mandy Olver’s report he feels it covers all the items he observed
that generally was compatible with the findings of somebody that may have been the first on-site inspection for something in that area as that construction occurred. He did not review the plan and the details, he looked at it from a Best Management Practices standpoint and making those findings for things that he knows to be requirements through either the subdivision law or the Town ordinance. During construction there was a larger amount of non re-vegetated area that was causing run-off and erosion because it was exposed. He did not observe some of the BMP devises in place, sedimentation basins with the dry basin with no area to collect it before it ran off. These are all enforcement measures that could be done with a third party inspection. He concurs with Mandy Olver’s letter and he concurs he does not know, nor anyone know whether the large boulder embankment will work right. He asked on behalf of Mr. Rioux that a third party inspection sign off that the plan which is generally following accepted practice, is also following through to the construction that it is meeting generally accepted construction of the plans themselves. If there is a deviation a simple sign-off from a geo-technical engineer stating that in absence of following the plan and specs as they are shown this is an acceptable alternative, that would be acceptable mainly for the issue of failure of the pond next to Mr. Rioux’s property.
The only other issue which is outside the purview of the ordinance because it would deal with issues greater than a 25-year storm is the location of the detention basin and the emergency outlet to the detention basin. The purpose of the emergency outlet is to protect that pond in the event of failure of the primary outlet or secondary outlets, overtopping the berm from washing out and causing damage downstream. It is not there intending to direct run-off onto an abutter’s property if there is such an event, it is to prevent catastrophic failure. Those are typically cited so that the emergency run-off will find its way back to a natural drainage course, i.e. the culvert in the driveway. He did not observe and he did not survey, but it is clear to his eye that the topography of Mr. Rioux’s property where the emergency outlet is located now, any discharge now would not go through Mr. Rioux’s existing culvert which appears to be the natural drainage way but would go further into his property and cross and possibly wash out another area. If the applicants engineer and the Town’s engineer can find no better alternative location for that emergency outlet than it is now, then that would be acceptable. He feels there are other places where it could discharge on a natural ground, possibly find its way back into the natural drainage way and not travel onto Mr. Rioux’s property at a different location. Unless Mr. Rioux changes the topography on his site it would flood his driveway in a different location.
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Mike Tuell felt they have the third party doing the oversight.
Rob Frank is in general concurrence with all the Town Engineer’s findings with specific direction pointed at the berm construction and the emergency outlet location.
Mike Tuell asked Mandy Olver if she understood that was what her role was going to be? Mandy replied they would have to do whatever it takes to satisfy everyone and specifically with the items Mr. Frank mentioned.
Mike Tuell asked if the board was in agreement that they have taken the appropriate steps for enforcement for what they have approved? They now need to go down and specifically indicate where the applicant may or may not have met the criteria outlined in Section 18-210(c )(1-5). Is everyone satisfied? There were no comments.
Mike Tuell referred the board to page 2 of Tom Russell’s memo of August 11, 2003 and the standards that they are to apply here. They will be voting on each one separately and canvassing the voting members for their reasons when voting on each one so the record is clear if it goes any further.
Section 18-210(c ) (1) – see attachment A at the end of these minutes.
CHRISTA SCHWINTZER MOVED THAT THE APPLICATION MEETS THE CRITERIA AS OUTLINED IN SECTION 18-210(C )(1). ERIC LANDIS SECONDED THE MOTION.
Christa Schwintzer felt they had a drainage plan and the drainage facilities are located in the street right-of-way so that requirement is met.
All board members were in agreement (Christa Schwintzer, Eric Landis, David Thompson, David Sewall and Mike Tuell).
The board voted on the motion before them. MOTION UNANIMOUSLY APPROVED.
Section 18-210(c )(2)(a) – See attachment A at the end of these minutes.
ERIC LANDIS MOVED THAT THIS PLAN CONFORMS WITH THE 25-YEAR FREQUENCY EVENT UNDER SECTION 18-210(C)(2)(A). DAVID THOMPSON SECONDED THE MOTION.
Christa Schwintzer felt it was basically met and the only question that could be raised would be regarding the words “or flooding areas not specifically designated to be flooded.” She felt it didn’t apply to the developer’s property but there may be some flooding downstream on the abutter’s property.
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Mandy Olver felt there should be no impact on the abutter’s property because the intention is of the design of the facility to maintain the peaks at or at less than the existing rate so there should be no change at the culvert.
Christa Schwintzer asked if the topography downstream was such that it could keep water moving and not pond there? Mandy explained it would go just as it goes now. Without knowing a true analysis of what happens downstream she cannot say there is no flooding, but it should be no different than it is now. That is the design intent of the facility in accordance with the ordinance.
Mike Tuell asked if anyone felt the application failed to meet the criteria of this subsection?
Christa Schwintzer was satisfied with the explanation she has been given.
The board voted on the motion before them. MOTION UNANIMOUSLY APPROVED.
Section 18-210(c )(2)(b) – see attachment A at the end of these minutes.
ERIC LANDIS MOVED THIS COMPLIES WITH SECTION 18-210(C )(2)(B). DAVID SEWALL SECONDED THE MOTION.
Christa Schwintzer felt the storm water management plan that has been presented indicates that these criteria are met.
Mike Tuell agreed and asked if anyone disagreed or needed further information or clarification?
Eric Landis asked if it complies based on the new information with the new calculations by Aaron Shaw, would we need further engineering review?
Mandy Olver understood they were approving the plan that was submitted last year that she reviewed and what she will do as a third party service is make sure if there are any changes that are subsequent that it does come back to the attention of the Code Enforcement Officer and if he thinks it needs to come back before the board then it will, otherwise it will be handled in the field with their review that it doesn’t change the intent of what has been approved.
The board voted on the motion before them. MOTION UNANIMOUSLY APPROVED.
Section 18-210(c )(3) – see attachment A at the end of these minutes.
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CHRISTA SCHWINTZER MOVED THAT THE PLAN MEETS THE REQUIREMENTS OF SECTION 18-210(C )(3). ERIC LANDIS SECONDED THE MOTION.
There was no further discussion or clarification.
The board voted on the motion before them. MOTION UNANIMOUSLY APPROVED.
Section 18-210(c )(4) – see attachment A at the end of these minutes.
Mike Tuell felt this was not applicable to the application before them because they are not in a floodplain.
John Robichaud confirmed that this area is not in a designated floodplain as shown on the FEMA floodplain maps.
MIKE TUELL MOVED THAT SECTION 18-210(C )(4) ENTITLED “FLOODPLAIN DEVELOPMENT” IS NOT APPLICABLE TO THE APPLICATION BEFORE THE BOARD. CHRISTA SCHWINTZER SECONDED THE MOTION.
There were no further comments.
The board voted on the motion before them. MOTION UNANIMOUSLY APPROVED.
Section 18-210(c )(5) – see attachment A at the end of these minutes.
Mandy Olver indicated those easements are shown on the plan and they will be turned over to the Town upon completion of the project.
Chris Ruge agreed with this.
MIKE TUELL MOVED THAT THE APPLICATION MEETS THE CRITERIA OUTLINED IN SECTION 18-210(C )(5) ENTITLED “EASEMENT”. ERIC LANDIS SECONDED THE MOTION.
Christa Schwintzer felt the intent was to comply with this, they are required to do it and they agree to do it so there is no disagreement here. There was no further discussion on this issue.
The board voted on the motion before them. MOTION UNANIMOUSLY APPROVED.
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Tom Russell felt the first sentence under Section 18-210(c ) (4) should be addressed which pertains to protecting life and minimizing losses to private and public property
from the hazard of flooding. He felt relying on the title of the section could be problematic.
MIKE TUELL MOVED THAT THE APPLICATION AS PROPOSED HAS BEEN PLANNED SO AS TO PROTECT LIFE AND MINIMIZE LOSS TO PRIVATE AND PUBLIC SAFETY FROM THE HAZARD OF FLOODING. CHRISTA SCHWINTZER SECONDED THE MOTION.
There was no further discussion on this issue.
The board voted on the motion before them. MOTION UNANIMOUSLY APPROVED.
30A MRSA ss. 4404(16) pertaining to the subdivision providing adequate storm water management was discussed next.
Mandy Olver stated the management plan as submitted does comply with the Town Ordinance and to all applicable regulations regarding storm water.
MIKE TUELL MOVED THAT THE APPLICATION AS PROPOSED WILL PROVIDE FOR ADEQUATE STORMWATER MANAGEMENT AS REQUIRED BY 30A MRSA SS. 4404(16). ERIC LANDIS SECONDED THE MOTION.
There was no further discussion.
The board voted on the motion before them. MOTION UNANIMOUSLY APPROVED.
Tom Russell felt a condition should be attached that a new plan should be submitted showing the changes that were outlined in Mandy Olver’s report and that we receive the results from Mr. Shaw’s analysis and a copy of the actual analysis should be made available to the Town’s engineer as a condition. He felt that what Mandy observed in her report as far as the different types of culverts and the sizes, this was all factored into this new storm water management analysis and we have to have a record of that.
Mandy Olver felt they should say upon completion of the project that a record drawing that demonstrates compliance with the approved plan be submitted.
Tom Russell felt that was problematic because it won’t conform to the approved plan. They plan they are approving tonight; we know there are some differences on the type of material.
Mandy Olver asked if it could demonstrate compliance with the intent of the approved plan?
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Robert Miller felt it needs to be enforceable and what exactly was approved. He also felt until they have approved the revised plan there is always going to be debate between the developer and John Robichaud as to what is the plan that was approved by the board. He feels it is an enforcement issue.
Tom Russell wants a plan that shows what Mandy Olver’s observations were.
Andy Perkins explained there are design plans, construction plans and as built plans. The as built plan is the record plan. The as built plan may not conform exactly to the
construction plan because of site conditions. That as built plan is what they are really looking for and the board cannot approve an as built plan until it is built.
Tom Russell felt we could have a plan now that shows these changes that Mandy Olver has observed.
Rob Frank asked if the board would consider Mandy Olver’s letter, which is fairly definitive in describing changes that were made and as a matter of record that the plan as amended verbally and described in Mandy Olver’s letter is the final plan and the summarization of her findings be attached to that final plan as a text on the front page of that plan.
Mark Kittridge asked if they were also looking for a revision to the storm water analysis that takes into affect all of the changes that have been discussed?
Tom Russell felt we have the results and that they need the underlying modeling.
Mark Kittridge asked Aaron Shaw if this was a comprehensive revision of the analysis that takes into affect all of the things that are in Mandy Olver’s report, such as pipe length and materials?
Aaron Shaw only addressed the changes that would affect the storm water hydrology; he did not try to address any of the construction issues. The changes on the inverts, etc. are minor changes. It covers what was in Mandy Olver’s findings as it relates to storm water hydrology.
Mark Kittridge asked if they were saying with Mandy Olver’s verbal report and analysis that addresses what she found and that we now have a record of what is on site?
Tom replied apparently, but he would still like to see a plan that the Town has showing what is there.
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Mark Kittridge asked the developer if this was a problem to do? Both Milos Blagojevic and Aaron Shaw replied no and agreed to provide a plan.
MIKE TUELL MOVED THAT THE DEVELOPER SUBMIT A REVISED PLAN SHOWING THE MATTERS OUTLINED IN MANDY OLVER’S REPORT DATED SEPTEMBER 16, 2003 AND THAT SHE GET THE SUPPORTING DOCUMENTATION TO CONFIRM THE CALCULATIONS THAT WERE HANDED OUT THIS EVENING. ERIC LANDIS SECONDED THE MOTION.
MOTION UNANIMOUSLY APPROVED.
The public hearing was closed.
Discussion.
Board members were reminded that they have a training session with MMA at the Black Bear Inn on Thursday, September 25, 2003 from 6:oo to 8:30 p.m.
CHRIS DORION MOVED TO ADJOURN. DAVID THOMPSON SECONDED THE MOTION. MOTION UNANIMOUSLY APPROVED.
The meeting adjourned at 9:45 p.m.
Respectfully submitted,
Ruth Vaughan
Attachment A follows these minutes.