Limington Planning Board Minutes
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THURSDAY OCTOBER 12, 2000 AT 7:00 P.M.





Review of Manahan letter



These minutes were approved at the October 26, 2000 Planning Board meeting with the following changes:

Page 1, Raymond Coffin was not present.
Page 5, paragraph 7, Wendy Walker said that the Planning Board must document the reasons for accepting or declining .........
Page 7, paragraph 3, Teri Hawkins was recorded as taking offense ......



The meeting was called to order by Wendy Walker, Chairperson, on Thursday, October 12, 2000 at 7:08 P.M. at the Limington Municipal Building,

Regular members present: Wendy Walker, Chairperson; Kreg Rose, Vice-Chairperson; Stanley Blake, Jr.; Raymond Coffin; Diane Hubbard; Harold Jordan.
[correction: Raymond Coffin was not present]

Regular members absent: Chris Clark

Alternate members present: Ronald Perkins

Also present: Priscilla Tucker, Secretary; Freeman Abbott, C.E.O.

The meeting was videotaped by Richard Jarrett.

The first order of business was the approval of the minutes of the August 29, 2000 meeting and the September 09, 2000 meeting.

The approval of minutes was tabled until the next meeting.

The Board next addressed the letter (see attached) from Attorney Matthew D. Manahan, of Pierce Atwood, dated September 21, 2000. The letter was on behalf of Webster Mill Associates and summarized the legal issues and the position being taken by Webster Mill Associates.

The letter was read into the record. Mr. Manahan's letter has seven points. Each point expressed in the letter was reviewed and discussed individually by the Board.

Point 1 - Whether the proposed multifamily development requires 60,000 square feet of lot size for one dwelling unit in each building.
As you know, the Dimensional Requirements Table in Section 6.3 of the Zoning Ordinance lists "Multifamily Dwelling (first dwelling unit)" as requiring in the Commercial Zone a minimum lot size of 60,000 square feet, and "Multifamily Dwelling (each additional unit)" as requiring 40,000 square feet. The question is whether the term "Multifamily Dwelling" refers to a multifamily dwelling use of the property, or to each multifamily dwelling on the property. If it refers to a multifamily use, then the first dwelling unit on the property requires 60,000 square feet of lot size, and each additional dwelling unit (in this case 19 of them) requires 40,000 square feet of lot size. Here, the minimum lot size requirement would be 820,000 square feet, or about 19 acres. On the other hand, if it refers to each multifamily dwelling, then the first dwelling unit in each structure requires 60,000 square feet of lot size, and each additional dwelling unit (now 15 of them) requires 40,000 square feet. In that case, the minimum lot size would be 900,000 square feet, or about 21 acres.

Planning Board Minutes
October 12, 2000 Meeting
Page 2

The Planning Board's reasoning in concluding that the term "multifamily dwelling" in the Dimensional Requirements Table refers to each multifamily dwelling structure is based on the definition of the term "multifamily dwelling," which begins "a building . . . ." Thus, the reasoning goes, the use of that term in the table must mean each building, or multifamily dwelling structure. This reasoning, though, ignores the issue of whether the term "multifamily dwelling" refers to a multifamily dwelling use, as opposed to a specific multifamily dwelling itself To reach a determination on that question, one must review the context of the Dimensional Requirements Table.
When discussing lot sizes the table lists uses, not structures, so that each listed use of a property -- not each structure -- requires a certain lot size. The mere fact that a use takes place within a structure does not convert the lot size requirement from one that applies to the use of the property to one that applies separately to each structure on the property. For example, the table speaks of "mobile home parks," "commercial," and "industrial" uses, all of which refer to the use of the overall property.
When the drafters of the ordinance wanted to base a requirement on each multifamily dwelling structure on a property, they knew how to do so. In setting minimum road frontage, the Ordinance expressly refers to "multifamily housing (per principal structure)." If the term 4~ multifamily dwelling" in the lot size section referred to the multifamily dwelling structure, rather than the multifamily dwelling use, then the drafters of the Ordinance would have used that same term in the road frontage section. That is, they would have said "multifamily dwelling,'" and there would have been no need to add the "per principal structure" parenthetical -- because the simple use of the term "multifamily dwelling" would have referred to each separate structure (under the Planning Board's reasoning). Because the table speaks in general in terms of uses, though, not structures, they had to use a different term when they wanted to refer to the structures themselves. Hence, they used the phrase "multifamily housing (per principal structure)" in the road frontage section, to refer to each structure.
Here, because the property at issue will be used for a multifamily dwelling use, the minimum lot size is 60,000 square feet for the first dwelling unit and 40,000 square feet for each additional dwelling unit.
The Planning Board's interpretation also would run afoul of constitutional requirements. In combination with Section 8.14 of the ordinance, * the Planning Board's interpretation has the effect of requiring almost 1,300,000 square feet of lot size (not considering the community building, which is discussed below) -- or over 30 acres of land. It is completely unnecessary, and excessive, to require so much land for a 20-unit apartment complex, and it raises serious concerns about whether Limington is either intentionally or unintentionally zoning out low-income housing.
Courts in other states have addressed the issue of zoning out low-income housing, and have concluded that equal protection and due process requires towns to provide for adequate low income housing. See, e.g., South Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151, 174, 336 A.2d 713 (N.J. 1975) ("We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need therefor"); Britton v. Chester, 595 A.2d 492 (N.H. 1991) (overturning local ordinance that had the effect of excluding most multi-family, affordable housing).

*Note that the density provisions of Section 8.14.C make no sense. Section 8.14.C.b states that "in order to determine the maximum number of dwelling units permitted on a tract of land, the net residential acreage shall be divided by the minimum lot size required in the District." Because Section 6.3 requires that the minimum lot size required in the District be calculated by reference to the number of dwelling units. one cannot then determine the permitted number of dwelling units by dividing the net residential acreage by that very same minimum lot size. Because Section 8.14.C cannot be applied, it must be ignored. This results in a minimum lot size based only on the 40,000/60,000 formula set forth in Section 6.3.

Planning Board Minutes
October 12, 2000 Meeting
Page 3

It appears that Limington has discouraged low-income housing, with the exception of allowing landowners to place mobile homes on their properties (which requires ownership of the mobile home, and often ownership of the underlying land). In the appendix to the Limington Comprehensive Plan, discussing survey results, the Plan notes that "none of the proposed policies for providing affordable housing were met with any enthusiasm. The only one with a positive response was to encourage more owner-built homes . .... Non-residents tended to favor allowing smaller lot sizes and oppose requiring a development mix, residents more strongly opposed multi-family housing as a strategy . .... For multi-family housing, there was a direct link between length of residence and opposition to the idea." App. I at 4-6. Recent statements concerning WMA's proposed project echo this distaste for non-elderly low-income housing. For example, in the attached March 23, 2000 letters the Chair of the Limington Board of Selectmen wrote that the Board was "extremely pleased to learn of the proposed 24-unit apartment complex for elderly housing," and "looks forward to this project with excitement and will support this project in all possible respects." In contrast, in regard to this proposed non-elderly low-income housing project, the Chair of the Selectmen wrote that "the Board of Selectmen very much opposes such a project," citing as concerns Limington's inability to offer services, including shopping, health care facilities, and public transportation. The March 23 letters do not explain why low income families need those services more than the elderly need them.
It seems clear that the Town has done as little as possible to accommodate the need for low-income housing in Limington. If the Planning Board were to interpret the Ordinance to require 40,000 square feet of lot size for all units after the first one on the property, however (rather than after the first unit in each building**), and addressed our concern (discussed below) with regard to the community building our concerns in this regard would be somewhat alleviated.

**Note that because it prohibits multi-family dwellings of more than four units each (see the definition of "dwelling, multi-family"), requiring 60,000 square feet for one unit in each building would make multi-family housing only marginally more attractive that multiple single family dwellings, which require 60,000 square feet each in the Commercial District.

The Board made the Findings of Fact after lengthy discussion of Point 1:

Dwelling is defined, in the Limington Zoning Ordinance as any building or structure or portion thereof, designed or used for residential purposes. Mr. Manahan is stating that we have only one primary use and the rest are auxiliary uses as opposed to the dimensional requirements. He is confusing use and dimension.

A Multi-family dwelling is defined as a building containing two to four dwelling such buildings being designed for residential use and occupancy by two to four families living independently of one another with the number of families not exceeding the number of dwelling units. Therefore, a multifamily dwelling is a building.

The Dimensional Requirements for a Multi-family dwelling shall be 60,000 square feet for the first dwelling unit in each building and 40,000 square feet for each additional unit in the building. Thus, the calculation for the first dwelling unit in each of the five structures would be 5 x 60,000 = 300,000

Planning Board Minutes
October 12, 2000 Meeting
Page 4
square feet. The calculation for the additional units in the five buildings would be 15 x 40,000 = 600,000 square feet. The total is 900,000 square feet or about twenty-one acres which is the calculation the Board will use for lot size. This is based in part on the Zoning Ordinance and in part on the Town Attorney's previous communication to the Chairperson.

Dimensional requirements refers to lots and structures rather than uses in the Board's understanding.

Mr. Manahan is concerned that Section 2.B of Dimensional Requirements Table is referring to multi-family use when in fact it is referring to a structure consistently. Therefore, if we take multi-family per structure, if there are determined to be five structures, in the commercial zone, we would say that 5 x 250 feet (1,250 feet) of road frontage would be required for this sub-division.

Mr. Manahan is contending that 2.B is referring to structures specifically because LB possibly refers to a multi-family dwelling use because it doesn't say the word structure. They want to differentiate. The Planning Board disagrees and feels that the whole thing refers to structure. The Planning Board will take the five principle structures and multiply by 250 feet and get the 1,250 feet of road frontage. There is not near enough. WMA, only has 700 some odd feet of frontage. The calculation is to be confirmed by the Town Attorney.

Using Mr. Manahan's logic there are six principal structures because if they meant dwelling structures they would have used the same terminology as before, dwelling unit. That is the difference between dwelling structures and principal structures. A building is a building.

Do we have five or six principal structures when calculating road frontage?

WMA is saying that they are starting out with 1,216,341 square feet and the Board is saying that they have 27.8 acres. The buildable lot size is 40,000 square feet x 27.8 acres it calculates 1,112,000 square feet. The Planning Board could not figure how WMA calculated the 1,216,341 square feet. The Planning Board is not asking for thirty (30) acres.

Planning Board Minutes
October 12, 2000 Meeting
Page 5
The statement that Limington discourages low-income housing with exception of allowing landowners to place mobile homes on their properties requiring ownership of the mobile and often ownership of the underlying land is not true. It is not a requirement that the people own the mobile homes or the land.

Reasons for elderly housing versus low-income families are: 1. The elderly people do not go to school; 2. Because we expect there will be increased walking traffic on a dangerous road to Jongerdens, we would have to request that sidewalks be put in which would mean the roads would have to be widened;

There will be thirty (30) to fifty (50) school age children and below in an area where they could be in area walking to the shopping center. Route 25 is a very dangerous area to stop a school bus and there is no way to make it safer. The Planning Board would request that school bus signs be posted.

The Planning Board has already set a precedence in the town with multi-family housing with Mike York He built duplexes in the rural district. The Planning Board required that Mr. York for each individual structure 120,000 because it was in a rural area and additional 40,000 on the other side. Whereas, this is in the commercial district so the first structure would only be 60,000. We are not discriminating because of the low-income housing.

Wendy Walker said that the Planning Board will be going through the letter, the Ordinance, the Comprehensive Plan and draw our own conclusions. If WMA wants to come back with a whole new set of rules, then the conclusions will be drawn from those.

Ron Perkins said that we must try to protect the people in the Town and give them better services and make things better instead of allowing things to become complicated by getting more low-income housing, and not the revenues we need to take care of the services that we don't have.

Wendy Walker said that the Planning Board must document the reasons for [correction: add "accepting or"] declining the application then there will be no need to worry about a turnover upon appeal.

Freeman Abbott said there are crime statistics from the mobile home park when the State Police worked with the the Town Fathers. The study shows the crime is near the mobile home park. Kreg Rose will look into getting the statistics.

Planning Board Minutes
October 12, 2000 Meeting
Page 6

Point 2. Whether the proposed community building requires an additional 60,000 square feet of lot size.
At the September 14, 2000 Planning Board hearing one issue that arose is whether the proposed community building (which will be 22' x 45', or 990 square feet, and will contain laundry facilities, a computer room, a bathroom, and the boiler room) requires additional lot area. Because the community building will be an accessory use, though, it does not require additional lot area, even if WMA proposes to maintain it as a freestanding building.
The Ordinance defines the term "accessory use or structure" on page 2 in relevant part as "a use or structure which is customarily and in fact both incidental and subordinate to the principal use or structure. The term 'incidental' in reference to the principal use or structure shall mean subordinate and minor in significance to the principal use or structure." There can be no doubt that the community building, which would not and could not exist but for the permitted principal multi-family dwelling use on the property, is both incidental and subordinate to the multi-family dwelling use.
Because the Ordinance does not impose additional lot size requirements on accessory uses and structures, *** there is no additional lot size requirement for the proposed community building.

***Even if the Ordinance did contain a lot size requirement for the community building, the Ordinance does not contain any requirement that lot size minimums applicable to separate uses must be aggregated, except in the shoreland zone. That is, as long as the lot size is greater than the larger of the two lot size minimums, it would satisfy both minimum lot size requirements. In regard to lots in the shoreland zone, see Ordinance Section 6.4.8.A.5 ("if more than one residential dwelling unit or more than one principal commercial light structure is constructed on a single parcel, all dimensional requirements shall be met for each additional dwelling unit or principal structure").

Findings of Fact

The community building is an accessory use. Need to base road frontage on five (5) buildings which will be 1,250 foot frontage.

The coin operated laundry is a money making venture for the development. If it is not a money making venture it will be considered an accessory use. If it is profitable it will be a commercial use. If it is a commercial use then the Planning Board will require an additional one and a half (1 1/2) acres or 60,000 feet for the building. It would not require additional road frontage.

Point 3. Whether Section of the Subdivision Ordinance applies only to streets.
Opponents of Webster Mill Place have argued that Section applies to this application to require that no entrance of any type onto Route 25 may be located within 1,000 feet of any other entrance onto Route 25. Because the existing driveway shared by the Boston/Edgecomb lot and the southeast portion of the retained Blake lot would be within 1,000 feet of the access road that will serve Webster Mill Place, the opponents argue that WMA instead must use the existing driveway to access Webster Mill Place. This interpretation is mistaken, though, because applies only to "streets," and the existing Boston/Edgecomb driveway is not a street."

Planning Board Minutes
October 12, 2000 Meeting
Page 7

Section is a part of Section 10.3.2, entitled "Layout." Section 10.3.2 is a part of Section 10.3, entitled "Streets." Thus, Section applies to the layout of "streets." That word is defined on pages 5-6 of the Subdivision Ordinance, as follows: "The word 'street' means and includes such ways as alleys, avenues, boulevards, highways, roads, streets and other rights-of-way. The term 'street' shall also apply to areas on subdivision plans designated as 'streets', etc." None of the listed terms is defined in the ordinance, but all of them refer to something that is a public way, and not a private driveway. Despite this, the project's opponents have argued that the phrase "and other rights-of-way" includes private rights-of-way. That interpretation, though, ignores the black-letter law ejusdem generis rule: "where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." New Orleans Tanker Corp. v. Department of Transportation, 1999 ME 67, 7, 728 A.2d 673, 675 (citation omitted). Thus, because the words of enumeration in the definition of "street" all relate to public rights-of-way, the general phrase "and other rights-of-way" must also refer only to public rights-of-way -- and therefore does not encompass private driveways.
Because the Boston/Edgecomb driveway is not public, it is not a "street," and thus there is no prohibition on constructing a street (in this case the Webster Mill Place access road) within 1,000 feet of that driveway.

Terry [Hawkins] was recorded as taking offense to being called an opponent of the project. She was concerned only that the rules were being followed and WMA must follow the rules as well as any other applicant who applies for a subdivision permit.

Findings of Fact

WMA is contending that their street can be public because it is for multi-family dwellings. They claim that the right-of-way to Boston/Edgecomb property is private and does not fit into the 1,000 foot distance rule. This is an issue with the Planning Board.

Section was read into the record. "Entrances into existing or proposed collector streets shall not exceed a frequency of one per 400 feet of street frontage. Entrances onto existing or proposed arterial streets shall not exceed a frequency of one per 1000 feet of street frontage."

The arterial street would be Route 25. Section states that subdivisions that contain fifteen (15) lots or more and this is declared either twenty-one or twenty two, shall have at least two street connections with existing public streets or streets shown on the official map, if such exists, or streets on an approved subdivision plan. WMA does not have two street connections unless you count the fact that inside their primary street they have the little arterial driveway going to the buildings. This is probably for emergency evacuation with a way in and a way out. They could loop around to the Boston/Edgecomb driveway but they would not be 1,000 feet.

Planning Board Minutes
October 12, 2000 Meeting
Page 8 applies only to the street. It requires that they have no more than one entrance per 1,000 feet. requires that any subdivision with fifteen or more lots must have two entrances on public streets. You cannot have two entrances closer than 1,000 feet. Still outstanding is whether the Boston/Edgecomb night-of-way is a street. If there are commercial vehicles coming out of the Boston/Edgecomb street on a regular basis it is a street. It would not be private if it is being used for commercial. If it being used for commercial use there should be road standards on it. It is a path right now. The road was not reviewed as it was not listed in the application as an access road. By virtue of use it would be an access road. This question whether the Boston/Edgecomb right-of-way is an access road will be directed to the Town Attorney.

Point 4 Whether Section of the Subdivision Ordinance applies only to new entrances.
Section also does not prohibit construction of the Webster Mill Place access road within 1,000 feet of the Boston/Edgecomb driveway because that section applies only to new entrances. That is, even if it applied to driveways, it would not apply to an existing entrance like the Boston/Edgecomb driveway (or to the Webster Mill Place access road itself, which will be an upgrade of an existing tote road). The very sentence at issue demonstrates this: "Entrances onto existing or proposed arterial streets shall not exceed a frequency of one per 1000 feet of street frontage." The drafters clearly knew how to cover both existing and proposed entrances, because they expressly spoke of "existing or proposed arterial streets." In contrast, by referring not to "existing or proposed" entrances, but simply "entrances," the ordinance must refer only to those new entrances that are proposed as part of the subdivision application.
Thus, Section does not prohibit the Webster Mill Place access road from being within 1,000 feet of the existing Boston/Edgecomb driveway.

This was addressed in point 3.

Point 5. Whether the Board may reject the project out of concern that it will increase the crime rate, or will otherwise be inconsistent with the "public health, safety, or welfare."
Although at least one member of the Planning Board has assumed -- with no empirical evidence -- that the project will increase crime, it is clear that the Planning Board may not reject the proposal out of concern that it will increase crime, or based on alleged inconsistency with "public health, safety, and welfare." General feelings of uneasiness are not sufficient grounds to reject an application for a permitted use. The Maine Supreme Judicial Court has stated on numerous occasions that administrative boards may not reject applications on the basis of vague notions of what is adverse to the "public health, safety, and welfare." Such determinations may only be made by a legislative body. See Kosalka v. Town of Georgetown, 2000 ME 106, 12; Cope v. Inhabitants of Brunswick, 464 A.2d 223, 227 (Me. 1983) (compliance with the "health, safety and welfare of the public and the essential character of the area" is not sufficiently specific to withstand challenge).

Kreg Rose will be getting the crime statistics from the Town Fathers to address the crime issue.

Planning Board Minutes
October 12, 2000 Meeting
Page 9

Point 6. How much weight should the Planning Board give to certain alleged inconsistency between the proposed project and the Limington Comprehensive Plan?
One member of the Planning Board asked how much weight the Board should give to the alleged inconsistency between the project and the provision on page 74 of the Comprehensive Plan stating that one goal is to "provide efficient and economical public services to the citizens of Limington." The member argued that the Town has a shortage of school space, **** as well as an inability to provide the policing that would be necessary as a result of increased crime that allegedly will be brought about by the project.
According to Section 9.2.1 of the Subdivision Ordinance, "any proposed subdivision shall be in conformity with a Comprehensive Plan or policy statement of the municipality and with the provisions of all pertinent state and local codes and ordinances." Thus, the Planning Board must consider whether the proposed subdivision will conform to the Comprehensive Plan. This requirement is similar to the requirement in State law that land use and zoning ordinances that are not consistent with a comprehensive plan are void after certain dates set forth in the law. 30-A M.R.S.A. SS 4314(2,3). The Maine Supreme Judicial Court has stated that the test for determining whether an ordinance is "consistent" with a comprehensive plan is whether the Town's legislative body "could have found the amendments to the Land Use Ordinance to be in basic harmony with the comprehensive plan." Adelman v. Town of Baldwin, 2000 ME 91, 22 (emphasis added). That is, it is not necessary that the ordinance "comply" in every respect with the comprehensive plan; basis harmony is all that is required. This is because comprehensive plans are documents that do not have the force of law, but which are intended to serve as 'planning documents to guide a town's future growth, and to serve as the blueprint for future land use ordinances.
The Limington Comprehensive Plan contains several provisions that show that the proposed Webster Mill Place project is in conformity with the Plan:

Planning Board Minutes
October 12, 2000 Meeting
Page 10

In short, it is clear that the proposed project is in conformity with the Limington Comprehensive Plan. Further, as previously noted, the Board may not reject the application based on vague notions that the project is not consistent with the public health, safety, or welfare.

****It should be noted that the Town currently has a building permit limit, so construction of 20 new apartments would be in lieu of construction of 20 new single family dwellings. The impact on town services of 20 new apartments will be no different than the impact of 20 new single family dwellings. In regard to schools in particular, most of the residents of the new apartments will come from Limington or surrounding towns, and therefore would attend the SAD 6 school system anyway (as would the children of whomever else used those 20 building permits).

Article IX of the Subdivision Ordinance is entitled General Requirements, Section 9.2 is entitled Subdivision Plan shall conform to Comprehensive Plan.

Section 9.2.1 of the Subdivision Ordinance was read into the record as follows:

"Any proposed subdivision shall be in conformity with a Comprehensive Plan or policy statement of the municipality and with the provisions of all pertinent state and local codes and ordinances."

The Board will return to and address Point #6.

Point 7 How many "lots" are included in the proposed subdivision?
The Limington Subdivision Ordinance, adopted in 1972, does not include the 1990 amendments to the State Subdivision Law that provide that the term "subdivision" includes "the division of a new structure or structures on a tract or parcel of land into 3 or more dwelling units within a 5-year period [and] the construction of 3 or more dwelling units on a single tract or parcel of land. . . ." 30-A M.R.S.A. Section 4401(4). Nonetheless, because these provisions are mandated by State law, the Webster Mill Place application must obtain local subdivision approval. Although this issue is not in doubt, because the Limington Subdivision Ordinance speaks only in terms of "lots" it raises the question of how to treat the 20 proposed dwelling units and the five proposed multifamily dwellings. Are they "lots" for purposes of determining the appropriate application fee? ***** Are they "lots" for purposes of determining whether the application is for a major or minor subdivision?
Although the Subdivision Ordinance does not define the word "lot," it is clear that it does not include separate dwelling units, or separate multifamily dwellings on one parcel of land. The word "lot" is defined in the Limington Zoning Ordinance as follows: "A parcel of land occupied or capable of being occupied by at least one building and the accessory buildings or uses customarily incidental to it, including such open spaces as are required by the Ordinance, and having frontage upon a street, road, or private road, as required by this Ordinance." Zoning Ordinance, p. 9. This definition cannot include a dwelling unit, because such dwelling units (1) are not parcels of land, (2) are not occupied or capable of being occupied by a building, and (3) do not have frontage upon a street, road, or private road. Similarly, the five multifamily dwellings that will comprise Webster Mill Place cannot be "lots" because they will not have independent frontage on a street or road. The Subdivision Ordinance treats "lots" as separate parcels of land with separate street frontage, and to try to shoehorn dwelling units or multifamily dwellings into "lots" would lead to absurd results. See, e.g., Subdivision Ordinance Section 9.8.

Planning Board Minutes
October 12, 2000 Meeting
Page 11

Thus, although they require review under the subdivision ordinance, dwelling units and multifamily dwellings are not "lots." Because the proposed subdivision application would divide the existing Blake parcel into three lots (one for the Webster Mill Place project and two to be retained by Mr. Blake for later development), the application proposes three "lots."
We understand that there is a concern that treatment of the application as only three lots would result in review as a minor, rather than a major, subdivision. If this is a concern, the Planning Board has authority to require that a minor subdivision comply with all or any of the requirements specified for major subdivisions. Subdivision Ordinance Section 5.1.1. Further, it is quite clear that any subdivision must meet all the requirements contained in State law. 30-A M.R.S.A. Section 4404.

*****It is not clear how the Town calculates the appropriate fee for this application. We understand that the subdivision application fee is based on the number of "lots" in the subdivision, but we have been unable to locate an ordinance provision setting forth that requirement. Although we understand that the Town Clerk has stated that the site plan review fee is $150, we also are unable to locate an ordinance provision setting forth that requirement, and we do not know whether the $150 applies per building, per lot, or per overall application. We request clarification of these points, including citations to the ordinance provisions that form the basis for the applicable fee.

Wendy Walker asked where the documentation was for the $150 application fee.

Richard Jarrett said that the fee was $200 and has been that way for years. The information should be found in Subdivision Ordinance Section 6.1.2. Mr. Jarrett said that we do not charge $150 application for the zoning, just the per lot fee. Diane Hubbard said that this fee had been charged on all previous subdivisions.

Wendy Walker requested that the Town Clerk be asked to provide a certified copy of the documentation of the charge and a copy sent to WMA. Also, a copy of the Subdivision Ordinance, with a bill for same, is to be sent to WMA.

Wendy Walker read the definition of subdivision (Subdivision Ordinance) into the record, "the division of a tract or parcel of land into 3 or more lots for the purpose, immediate or future, of lease, sale, development or building whether this division is accomplished by immediate platting of the land or by sale of the land by metes and bounds. The term subdivision shall include the subdivision of land for non-residential purposes, mobile home parks and the re-subdivision of land."

Definition of subdivision from Zoning Ordinance is "a division of land as defined in Title 30-A, Section 4401 of the Maine Revised Statutes Annotated. Without limiting or expanding the foregoing, a subdivision is, in general terms, the division of a lot of land into three or more lots, or the creation of three or more dwelling units on a lot of land, within a single five year period.

Planning Board Minutes
October 12, 2000 Meeting
Page 12

Wendy Walker said that Mr. Manahan's contention is that this definition cannot include a dwelling unit because such dwelling units are not a parcel of land. Yet, a dwelling unit is considered a unit in a subdivision. Therefore, this appears that twenty dwelling units equals twenty lots for the purpose of a subdivision. Her interpretation is that a dwelling unit is a lot. If Subdivision 30.A, Section 4401(4) which is the definition in which it states that a dwelling unit is equivalent to a lot.

Richard Jarrett stated that some of Mr. Manahan's confusion in his letter may be because he is taking definitions from different ordinances. You can't go from the zoning ordinance to the subdivision ordinance and back. The subdivision ordinance states that if something is not defined you should go to the dictionary for definition. He felt that the Board would be well within their rights to state that the dwelling unit is a lot definition. It is consistent with the State subdivision definition of a lot which backs them up. He felt the Board would be on solid legal grounds to define a dwelling unit as a lot.

Wendy Walker read the email she received from the Town Attorney. He stated that for purposes of subdivision law generally, the land is considered to be subdivided into the total number of dwelling units, in this case twenty (20). This project should be handled in essence as though it were twenty single family homes.

Richard Jarrett said that Mr. Manahan, in his letter, states that 9.8 does not make any sense and there is one section that does not make sense. It states that you have to have a hundred feet of frontage per lot, that would mean he would have to have four hundred feet of frontage. It doesn't really make sense. The subdivision ordinance did not take into account the fact that people would be developing multifamily subdivisions and possibly this could be waived saying the Board is following tile Zoning regulations for multifamily which would make sense.

Wendy Walker said that 9.8.3 of the Subdivision Ordinance states, "The subdividing of the land shall be such as to provide that all lots shall have a minimum frontage of 100 feet on a public street."

Findings of Fact

Subdivision Ordinance 9.8.3, lots in a subdivision should each have a minimum frontage of 100 feet on a public street.

The Board will use Zoning Ordinance multifamily dimensional requirements of 250 feet per structure which translates to 1,250 feet rather than 2,000.

This is a major subdivision and not a minor subdivision.

Planning Board Minutes
October 12, 2000 Meeting
Page 13

Wendy Walker said the question is whether it is a 20 lot major subdivision or a 22 lot major subdivision. So far the Board has taken it as five building x 250 feet. The proposal made at the last meeting claimed that they were going to take the two lots in the front and make them residential lots. This would say there are 7 buildings or 22 lots. Thus, 7 x 22 would mean they would need 1,750 feet of frontage.

Wendy Walker said there was a discrepancy in the calculation of the road frontage. The Board is trying to come up with 1,750 feet but WMA is saying there is 1,250 feet because they did not consider the other two lots. There is no way WMA has 1,250 feet but they are claiming they do have 1,250 and we assume that it is because WMA has 600 on Route 25 and 600 on their road which is less than 1,250. The Board reviewed the Plan Map to try to determine how WMA arrived at the frontage.

Richard Jarrett suggested the Board contact the Engineer to clarify his calculation on the road frontage. Freeman Abbott said that an independent Engineer could be approached for his study.

Diane Hubbard asked if the Board had done anything about an independent study. Wendy Walker said that she didn't feel that an independent name for a study was appropriate until the Board knows what is going on with the project. The Board does not know how many lots there are or where they are going and information about added nitrate studies.

They have a meeting with Mr. Blake to determine what is going on with the front two front lots.

Richard Jarrett questioned whether the fee had been paid yet. Mr. Perkins said that Mr. Greer stated at the last meeting that as soon as the Board sets the fee he will be willing to pay it.

Ron Perkins made the following motion:

MOTION: To adjourn the October 12, 2000 meeting of the Planning Board.

The motion was seconded by Harold Jordan and carried unanimously.

The meeting adjourned at 10:00 P.M.

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