October 26, 2000 Letter from Matthew Manahan of Pierce Atwood to Limington Planning Board Chair Wendy Walker regarding the Webster Mill Place, a low-income housing project proposed by York Cumberland Housing
Also, Wendy Walker's Email Response to this letter.
A T T O R N E Y S
VIA EMAIL, FAX, AND U.S. MAIL
Wendy Walker, Chair
On behalf of Webster Mill Associates ("WMA"), I have reviewed the first two hours of the videotape of the Planning Board's October 12, 2000 meeting, at which the Planning Board discussed this matter in detail. The purpose of this letter is to file our objection to the Board's procedures in this matter, and to request that the Board seek the immediate assistance of the Town Attorney in this matter.
We have the following specific objections. First, WMA did not receive notice that the Planning Board would be considering WMA's application at the Board's October 12 meeting. Such failure to notify WMA is a clear violation of WMA's right to due process, and we object to that process. Nor have we received notice that the Planning Board will again be considering WMA's application at its meeting tonight. We only discovered that WMA is on the agenda because yesterday we happened to look at the web site http://www.limington.org/, and we saw the agenda for tonight's meeting that appears on that site.
Second, we object to the preparation of findings of fact before all the facts have been presented in this matter. It is inappropriate for the Board to begin to make factual conclusions before WMA has even had the opportunity to present all those facts.
Third, we request that the Planning Board follow the process it agreed to at its September 14 meeting, to ask the Town Attorney to review the legal issues that arose at that meeting and give the Board advice on the resolution of those issues. My September 21 letter to you outlined those issues and our position on those issues. It is improper for the Board first to reach its own conclusions on those legal issues, and only then to ask the Town Attorney to tell the Board if the Board's conclusions are wrong. That process is unfair to the applicant because it predisposes both the Board and the Town Attorney to reach a particular conclusion.
Wendy Walker, Chair
October 26, 2000
It is particularly important that the Board obtain advice from the Town Attorney on the question of how many "lots" are included in the proposed subdivision. The answer to that question bears, for example, on the applicability of Subdivision Ordinance Section 10.3.2.11, which the Board discussed at the October 12 meeting. It is my understanding, based on both Jim Haddow's August 29, 2000 email to you and my subsequent conversations with Mr. Haddow, that his advice to the Board in the August 29 email was not intended to be his final word on the issue.
Fourth, we object to the Board's effort to manufacture ways to make the WMA project more expensive. It is clear from a review of the videotape of the October 12 Planning Board meeting that the Board seeks to make the project prohibitively expensive. For example, the Board discussed the possibility of requiring WMA to install sidewalks on Route 25. Such a requirement is inappropriate, given that such sidewalks would benefit the entire Town. WMA cannot be asked to fund such improvements to the Town's infrastructure.
Fifth, we object to the participation of any member of the Board who has demonstrated opposition to the project. Such participation violates WMA's right to a fair and impartial tribunal. See, e.g., Pelkey v. City of Presque Isle, 577 A.2d 341 (Me. 1990). We request that the Board excuse from participating in this matter any member who has expressed opposition to the WMA project. In particular, we object to the continued participation in this matter of Ron Perkins. At the October 12 meeting Mr. Perkins clearly expressed his opposition to the WMA project. For example, Mr. Perkins made several statements similar to the following:
- "We've got to stop this" project "on the ground that we have inadequate services. We will be the low income hub of Maine."
- "I'm trying to look out for the Town. We need to stop this thing."
- "As much as we'd like to see crime hold water [to kill the project], it won't."
Sixth, we object to the Planning Board's slow pace in this matter. Without answers to the legal issues discussed in my September 21 letter, WMA cannot proceed to prepare its final application. That letter has been pending now for well over a month. There is simply no reason the Town Attorney could not have been asked to immediately respond to the issues raised in that letter.
Several other issues arose at the October 12 meeting. We request that the Board also seek the advice of the Town Attorney on those issues.
First, members of the Board stated that it appears that WMA does not have enough road frontage, because the Ordinance requires 1,250 feet. In fact, the access road is a "road" under the Ordinance's definition because it will be a "private way with a minimum right-of-way width of thirty (30) feet and constructed to meet the private road definition contained in" the Ordinance. The access road, together with existing road frontage on Route 25, has more than enough frontage to satisfy the Ordinance requirements.
Wendy Walker, Chair
October 26, 2000
Second, Mr. Jarrett stated that if WMA makes money on the laundry facilities in the community building, then that facility must be a commercial use that requires an additional 60,000 square feet of lot size. That is simply not true. The question, as I noted in my September 21 letter, is whether the community building is a principal use or an accessory use. Because it would be incidental and subordinate to the principal multifamily dwelling use on the property, the community building is an accessory use even if WMA makes money on the laundry facilities. The fact that someone makes money on something does not convert that use from an accessory use to a principal use. If it did, that would mean that a dwelling could be converted to a principal commercial use by the mere presence of a soda dispensing machine in the basement.
In any case, as shown by the attached description of WMA's laundry arrangements, once the cost of utilities, janitorial services, and building maintenance are paid from the net income there is little or no profit from the laundry facilities. The laundry is provided to the residents as a convenience, not as a source of income to the development. The community building is locked and not used by the general public.
Third, the mere fact that the Boston/Edgecomb lot may use an existing driveway to serve a commercial use does not make that driveway a "street." As I explained in my September 21 letter, to be a "street" under the definition of that word the right-of-way must be public. The mere fact that the public may be allowed to use the right-of-way, though, does not make it public, because the owner may at any time prohibit anyone from using the driveway. Because neither Boston/Edgecomb driveway is public, they are not "streets," and thus there is no prohibition under Subdivision Ordinance Section 10.3.2.12 on constructing a street (in this case the Webster Mill Place access road) within 1,000 feet of that driveway.
Additionally, Mr. Jarrett was correct when he stated that Section 10.3.2.12 applies only to entrances proposed within the subdivision.
* * * * *
In my September 21 letter I requested a copy of the Limington Subdivision Ordinance that includes any post-1972 amendments. At the October 12 meeting the Board directed the Code Enforcement Officer to send me a copy of the Town's Subdivision Ordinance. Should I assume that the copy sent to me includes all post-1972 amendments (if any)?
Given the difficulty the Planning Board has had in handling this application, we request that the Town Attorney be asked to be present at any future meetings at which the Planning Board discusses this matter. Further, because we did not receive notice of tonight's meeting, we request that the Planning Board not consider this matter at tonight's meeting; we will not be able to be present. Instead, we ask that the Board simply request that the Town Attorney respond to the points in my September 21 letter, and to the additional points in this letter, as soon as possible.
Wendy Walker, Chair
October 26, 2000
Thank you for your continued attention to this matter.
Matthew D. Manahan
cc: James B. Haddow, Esq.
Thomas S. Greer
Herbert A. Semple
Enclosure with October 26, 2000 letter
Webster Mill Place
Application to Planning Board
York-Cumberland Housing Management Corporation leases coin-operated washers and dryers for its properties from Mac-Gray Co., Inc. (P.O. Box 475, Standish, Maine, 1-800-237-7050, contact is George McCrillis) The income from the machines is collected quarterly by Mac-Gray and is divided equally between Mac-Gray and the property, Mac-Gray's portion being reimbursement for the rental and maintenance of the machines. Below is an example of collections, gross rent, and net income for a 3-month period for the laundry equipment at Steeple Square, a 73 unit family property in Westbrook with 35 3-bedroom, 15 2-bedroom and 23 1-bedroom apartments, pro-rated for 20 units:
Steeple Square: Pro-Rated for 20 Units: Gross Income $1,384.25 $379.25 Net Income $ 553.70 $189.62 Per Month $ 184.56 $ 63.20 Less Water/Sewer Oil (hot water) Natural Gas Electricity (dryers) Janitorial Janitorial Maintenance (building) Maintenance (building)
The cost of utilities, janitorial, and building maintenance is not tracked separately for the laundry use. However, once these are paid from the net income each month, there is little or no "profit" from the laundry facilities. The laundry is provided to the residents as a convenience and not as a source of income to the development. The community building is locked and not used by the general public.
Sent: Thursday, October 26, 2000 4:25 PM
To: Matt Manahan
Cc: James Haddow; Stanley Blake Jr; Raymond Coffin; Kreg Rose; Freeman Abbott; Diane Hubbard; Chris Clark; Ron Perkins Subject: RE: Webster Mill Place
Matt, you are free to object to the length of time this project is taking, but please understand that we are trying to make informed decisions. My decision to gather the Board's input to your letter was intended to speed up the process by getting Mr. Haddow the most complete list of questions as possible and also so that the entire board's input was reflected in the documentation (rather than just mine).
I spoke with our secretary (Priscilla) today and she has just finished the minutes of that meeting. Those minutes, along with any minutes where the Webster's Mills subdivision was discussed will be forwarded to you.
Priscilla has mailed you a copy of the subdivision ordinance, but has not been able to secure the subdivision lot fee schedule. I hope to have that information tonight and will email it to you tomorrow.
I apologize for not inviting you to the meeting. As it was my intention to only discuss your letter and compose questions for Mr. Haddow, I didn't realize it required your attendance and I stand corrected. Per my voicemail to you today, we are rescheduling our follow-up to ordinance concerns/questions/confusions on November 4 and have invited Mr. Haddow to be present.
I am not prepared to commit to having Mr. Haddow present at every future meeting where this project is discussed, but will invite Mr. Haddow's opinion via a copy of this note.
Your objection to our Findings of Fact is most likely because you do not understand our current process. It has been our experience in the past that facts and/or decisions have been lost due to several factors. The purpose of our Decision Documentation is to document all questions and facts and use this document as work-in-progress so that all data is in one place and the document can serve as an historical document in the event the decision is appealed or we need to backtrack. Our documentation is meant in NO WAY to be a preparation of the final document.
Realistically, we have not even received a complete application from WMA that can be formally reviewed.
I have discussed your concern about Mr. Perkins with the town attorney and understand your concern.
As to your other concerns, I will leave them to Mr. Haddow's review of the material once he receives Priscilla's package. What you may not have picked up on the video is that our complete meeting minutes encompass our questions to the attorney, and we are actively seeking advice on all outstanding issues and questions identified to date.
From: Matt Manahan [mailto:mmanahan@PierceAtwood.com]
Sent: Thursday, October 26, 2000 2:58 PM
To: Wendy Walker (E-mail)
Cc: James B. Haddow Esq. (E-mail); Genie Nakell (E-mail); Thomas S.
Greer (E-mail); Herbert A. Semple (E-mail); John Blake (E-mail); Kreg
Rose (E-mail); Stanley Blake Jr. (E-mail); Chris Clark (E-mail); Raymond
Coffin (E-mail); Diane Hubbard (E-mail); Freeman Abbott (E-mail)
Subject: Webster Mill Place
Please see the attached letter.
York-Cumberland housing.limington.letter to walker re 101200 meeting issues 102600.doc
Please note that www.Limington.org is not the official website of the Government of the Town of Limington.