Present:   R. Scott Wyman, Mike Martin, Andrew Black, George Turner, Matt Manahan, Adrian Kendall
        
Absent: Ron Copp       

Staff:       Barbara McPheters, Code Enforcement Officer

The meeting was called to order at 7:05 p.m.

Mr. Wyman welcomed the applicants and gave an overview of the order of the meeting.  Stating there would be opportunity for public testimony and four positive votes would be required approving a request.

Hearings and Presentations:

1.      Special Exception                                  Philip and Linda Storey
                                                         50 Middle Road
                                                         Tax Assessor Map R01, Lot 50A
                                                         Rural Residential 2 district

Ms. McPheters presented background information as follows: Philip and Linda Storey request a special exception for a day care center at 50 Middle Road on Map R01 Lot 50A in the Rural Residential 2 (RR2) District.  

Day care centers and nursery schools, subject to the provisions of Sec. 408A and Site Plan Review are allowed as special exception uses in the Rural Residential 2 (RR2) District.  The applicants would like to utilize the portion of the dwelling that previously housed the occupational therapy outpatient pediatric clinic that was approved on August 12, 1999.  The Board approved a special exception for an accessory apartment in the same space on January 10, 2002.  The day care component will provide before and after school care as needed.  The education portion of the facility will be operational weekdays from 9:00 a.m. to 3:00 p.m. during the school year.  The applicant anticipates approval by the State for a childcare center license for 12 to 20 children with 2 or more adults.  Site improvements will include a proposed fenced outdoor play area.  The applicant has not addressed the septic system capacity and the Board may wish to discuss the requirements with the applicant.

The Board will need to determine that the use will comply with Sections 104.36, 104.87 and Sections 408A.1 and 408A.2 and Sections 603.2.3 and 603.2.7 of the Cumberland Zoning Ordinance.


In addition it was discovered today that there is an above ground pool that encroaches on the side setbacks.  Research indicates there was not a permit for the pool.  The Board might want to address the age and location of the pool.

Mr. Wyman asked the applicant for an explanation of what the business will be, the operator and the employees.  The Board will also review the physical structure of the building, safety, sewerage, signage and the pool.

Ms. Linda Storey, applicant stated the proposal would be a pre-school from 9:00 a.m. to 3:00 p.m., but because of the hours of operation the business will be licensed with the State as a child care facility.

Mr. Wyman asked if the hours of operation required the classification of a daycare facility.

Ms. Storey stated because the center will be open more than three hours a day, it must be considered a childcare facility.  The proposed area was originally used as Pediatric Clinic until April of 2002 when the clinic was moved to 85 Middle Road.  In 2002 they received an approval for an accessory apartment.  It is the accessory apartment that would be used for the childcare facility.

Mr. Wyman asked who lived in the house?

Ms. Storey stated she and Phil occupy the main section of the house at 50 Middle Road.  The accessory apartment is 50A Middle Road.

Mr. Wyman asked the status of their State license.

Ms. Storey stated applications have been submitted and they are waiting for reply.

Mr. Wyman asked if she were a licensed physical therapist.

Ms. Storey answered no; her daughter Jaime StoreySmith is a licensed occupational therapist.

Mr. Wyman asked Ms. Storey if she were a teacher.

Ms. Storey stated she is a dental hygienist, but works as the office manager for the clinic.

Mr. Wyman asked the name on the license application.

Ms. Storey stated Jaime StoreySmith.

Mr. Manahan asked if the proposal was for a day care center?

Ms. Storey stated yes.

Mr. Manahan asked if lunches would be served?

Ms. Storey stated no, the children will bring their lunch and the hours will be from 9:00 a.m. to 3:00 p.m.

Mr. Manahan reviewed the definitions in the Ordinance for childcare centers and nursery schools.  He asked if the main purpose would be for education.

Ms. Storey stated it is set up on pre-school criteria.

Mr. Manahan stated the application must comply with the definitions from Section 104.36 (Day Care Center) and 104.87 (Nursery School).  He asked Ms. McPheters if the application should be considered as a private school.   

Ms. McPheters stated she did not consider that, it was advertised as a childcare center.

Mr. Manahan stated the application doesn't appear to meet the definition of day care center; it appears the primary function is education.

Ms. Storey stated they would prefer to be licensed as a pre-school, but the State does not allow that type of licensure.

Mr. Kendall stated the Board has to work with definitions of the Ordinance, which does not define a preschool.

Mr. Manahan said the application doesn"t seem to fit the definition of private school, which talks about kindergarten, or elementary school.

Mr. Kendall stated that if the primary function were education it would be a school, but if the primary function were daycare he would not consider it a school.  

Mr. Manahan stated if the business were a day care center or nursery school the application would have to comply with Section 408A and receive site plan approval from the Planning Board.

Ms. McPheters stated the definition for commercial schools is not used in any of the zoning districts; the only term used is private school.

Mr. Manahan asked if it were a terminology error?

Mr. Wyman stated the Board might want to add the definition to the list for review and amendments.

Mr. Manahan asked the applicant if the primary function of My School was to provide education.

Ms. Storey answered yes.

Mr. Manahan stated that the proposal might not be a daycare center but a private school.

Mr. Black asked about the language of the Ordinance.

Ms. McPheters stated she thought the Planning Board and Staff tried to model the language on the State guidelines.

Mr. Black asked if most daycare centers offer an educational component.

Ms. Storey stated yes.  The State licensing for a nursery school is less stringent, but due to the length of the day they are requesting a license for a daycare facility.

Mr. Wyman said the Board would need to address the location of the pool.

Ms. Storey said the above ground pool is ten years old, at time of installation they were informed a permit was not necessary.  The pool is totally enclosed, the steps lock to prevent a child from opening the pool.  The fenced play area does not include the pool.

Mr. Wyman asked if the applicant would point out the proposed fenced play area on the sketch.

Ms. Storey showed the Board the proposed location of the fenced play area.

Mr. Turner asked if the facility were deemed a school would that affect your ability to get licensed by the State?

Ms. Storey stated she didnt believe it would, they are applying for license as a childcare facility.

Mr. Wyman asked for testimony from the public in support of the application.

Ms. Donna Kane, of 53 Middle Road stated she has run a daycare center for up to twenty children since 1990. She currently has only six children, and will be closing and going to work for Jaime.  Regarding the impact as far as school numbers and licensing - a nursery school license is the easiest license to obtain from the State.  Licenses for a childcare center is the most widely observed and mandated.  Her daycare center was open from 7:00 a.m. to 5:30 p.m. Monday through Friday, fifty weeks a year.  This proposal has fewer hours with the same number of children, and will not adversely impact the neighborhood.  

Mr. Wyman asked Ms. Kane asked about the balance between occupational therapy and teaching, and was she the teacher, and would her credentials be used for licensing?

Ms. Kane stated yes she would be teaching from 9:00 a.m. to 3:00 p.m. She has a four-year degree in early childhood, and Jaime has a degree in occupational therapy, specializing in pediatrics.

Mr. Wyman asked if she left what would happen to the licensing.

Ms. Kane stated the license will be issued in Jaimes name, and if she left a new teacher would be hired to meet the required criteria.

Mr. Black asked for clarification on the State licensure; do you have to apply for both a daycare center and a nursery school?

Ms. Kane stated no; they have applied for a license for a childcare facility.  There is no licensing for pre-school.

Mr. Black asked if there were anything in the childcare facility licensing that would prevent the educational component.

Ms. Kane stated no.

Mr. Black asked if the educational component would be from 9:00 a.m. to 3:00 p.m.

Ms. Kane stated yes, for children three years to five years of age.

Mr. Wyman asked for testimony from the public in opposition, neutral or for informational purposes.  There were no comments.  The public portion of the meeting was closed.

Mr. Wyman asked if they would like a sign, and if so what size.

Ms. Storey stated yes, for location purposes.  The sign at the clinic is a 3 x 5- 15 square feet.

Mr. Wyman asked they would like a sign of similar size.

Ms. Storey stated yes.

Mr. Wyman asked if the Plumbing Inspector had inspected the property.

Ms. Storey stated no.

Mr. Wyman asked if they anticipated any problems.

Ms. Storey stated no, they have a mound system and have never had any problems, and the leach bed is on the front side of the house.  As a precautionary measure the tank will be pumped next week.  

Mr. Wyman asked about safety features.

Ms. Storey stated there is a deck off the apartment that is closed in, they are having a fenced play area, and there are smoke detectors on both levels.  There is more than one exit for fire and safety.  The proposed employees have several years experience working with children.

Mr. Black asked if there would be structured instruction from 9:00 a.m. to 3:00 p.m.

Ms. Storey stated no, children will have center activities, and will not be sitting at desks.  There will be a morning session, a lunch break, rest time and more activity time in the afternoon.
 
Mr. Black asked if there would be educational activities after 3:00 p.m.?

Ms. Storey stated no, before 9:00 a.m. and after 3:00 p.m. would be daycare.

Mr. Black asked the hours of operation.

Ms. Storey stated from 7:30 a.m. to 4:30 p.m.

Mr. Black asked if they had a name.

Ms. Storey stated My School.

Mr. Black asked if there would be any hot meals served.

Ms. Storey stated no.

Mr. Wyman stated that the Board should determine if the proposal is a day care center or nursery school.

Mr. Kendall moved to find that the proposed enterprise would be a private school per their ordinance.

Mr. Manahan seconded.

Mr. Manahan and Mr. Black discussed the definition Sections 104.115 School and 104.116 School, Commercial.

Mr. Black didnt think the daycare facility would be considered a school, if it were considered a private school it would require licensure from the State.

Mr. Kendall stated the definitions are from the State, which serves a different purpose from land use.  He would be equally comfortable disregarding the aspect of chiefly providing educational purpose.

Mr. Turner stated you could agree the nursery school definition limits instruction to 3 ½ hours based on the shorter attention span of three to five year olds. Testimony supports three-hour sessions with breaks.

Mr. Manahan stated to be a nursery school you can only have two 3-½ hour sessions, and if you dont meet those criteria you become a private school different requirements than Section 408.A.  

Mr. Kendall stated it makes perfect sense if the definition is lifted from State regulations.

Mr. Manahan stated he felt the facility meets the definition of a commercial school.

Mr. Martin stated any district has private schools and there are no standards for private school.

Mr. Wyman asked about findings for the request.

Mr. Black asked about daycare centers with more than thirteen children.

Mr. Wyman stated what they have applied for is the strictest form of application.  

Mr. Black stated a home daycare excludes the education component.

Mr. Wyman stated Section 104.87 doesnt include a private school approved by the Commissioner of Educational and Cultural Services.

Mr. Wyman asked Ms. Storey if the Department of Human Services was the location of the license application.

Ms. Storey stated yes.

Mr. Wyman stated the Toddle Inn was primarily for the care of children and education was secondary in nature.  Licensure is the key factor to allow a private school.

Mr. Black asked what was the factor that required State licensure.

Ms. Storey stated as a childcare facility, one of the things is the number of children involved, up to twenty children.

Mr. Wyman asked for testimony from Ms. StoreySmith as she will own the license.

Ms. Jaime StoreySmith stated a childcare facility is for 13 to 20 children, and the care is longer than 3.5 hours.

Mr. Black asked about licensing for less than 13 children.

Ms. StoreySmith stated she has applied for a small childcare facility, because the daycare is not located in her home it cannot be considered a daycare home.

Mr. Black asked if there were any restrictions or requirements regarding the type of education that is offered at a childcare facility.

Ms. StoreySmith stated no.

Mr. Black asked about licensing requirements for a childcare facility.

Ms. StoreySmith stated they are planning to have an educational component from 9:00 a.m. to 3:00 p.m. with licensing as a childcare facility.

Mr. Black asked if there were any differences in licensing as a nursery school.

Ms. StoreySmith stated a nursery school is limited to 3 ½ hours.

Mr. Black asked if there was a limit on the number of children for a nursery school.

Ms. StoreySmith stated there is ratio of 8 students to a 1 teacher.

Mr. Black asked what is the requirement for a daycare center.

Ms. StoreySmith stated for greater than seven children it is two adults up to fourteen children, or seven children to one adult, depending on the childrens ages you are allowed more children from ages 3 to 5 years old and before and after school age children.

Mr. Black asked if the birth to two years has a ratio of one adult to seven children.

Ms. StoreySmith stated no it is lower than that, one adult to four children.

Mr. Wyman asked the proposed age of the children.

Ms. StoreySmith stated from three years to five years of age.

Mr. Black asked the ages of children for a childcare facility.

Ms. StoreySmith stated from birth to age thirteen.

Ms. StoreySmith stated the ratios of adult to child change with the ages of children.  They are only going to have children three years to five years of age.

Mr. Black asked if they were licensed as a daycare facility and could they care for children from 0-2 years of age.

Mr. Manahan stated if the facility is licensed as a childcare facility, they could have children younger than three years old.

Ms. StoreySmith stated they could, but are only going to have children three years to five years old.

Mr. Turner asked about the limit of 3 ½ hours.  

Mr. Manahan stated he feels the proposal is a daycare center.  The question for the Board is can the chief purpose of a facility provide education for an entire day.

Mr. Turner stated he felt the chief purpose of the facility is daycare with an educational component.

Mr. Wyman asked if the facility could be considered a daycare center.

Mr. Black voiced concern if the license from the State was for a daycare center or facility it could not be advertised as a nursery school.  The State regulations suggest nursery schools are limited to (2) 3 ½ hour sessions.

Ms. StoreySmith stated a nursery school license is the easiest State license to obtain.

Mr. Black asked if the State was saying you must choose one facility or another?

Mr. Martin stated he has had two children go through nursery school, three hours a day three days a week, the education was not very intense.  He understands the stated mission and purpose is for education but the facility is a daycare facility.

Mr. Kendall withdrew his motion to find the facility a private school.

Mr. Manahan withdrew his second.

Mr. Kendall moved to find the enterprise proposed by Linda and Philip Storey to be a daycare center.

Mr. Manahan seconded.   

Mr. Wyman asked about a daycare center offering education.

Mr. Manahan stated testimony has been given stating the chief purpose is not education, but a daycare facility.  

Mr. Wyman reviewed the standards of 603.2.3 with following findings:

.1      The proposed use will not create hazards to vehicular or pedestrian traffic on the roads and sidewalks serving the proposed use as determined by the size and condition of such roads and sidewalks, lighting, drainage, intensity of use by both pedestrians and vehicles and the visibility afforded to pedestrians and the operators of motor vehicles;
Ms. Storey stated the driveway is safe with ample room to turn vehicles around and will not create hazards to vehicular or pedestrian traffic.
The Board found this requirement to be satisfied.

.2      The proposed use will not cause water pollution, sedimentation, erosion, contaminate any water supply nor reduce the capacity of the land to hold water so that a dangerous, aesthetically unpleasant, or unhealthy condition may result;
Ms. Storey stated there would be no water pollution; the property has an adequate septic system.
The Board found this requirement to be satisfied.

.3      The proposed use will not create unhealthful conditions because of smoke, dust, or other airborne contaminants;
No, the daycare facility use will not create unhealthful conditions.
The Board found this requirement to be satisfied.
 
.4      The proposed use will be compatible with the uses that are adjacent to and neighboring the proposed location, as measured in terms of its physical size, intensity of use, visual impact, and proximity to other structures and the scale and bulk of any new structures for the proposed use shall be compatible with structures existing or permitted to be constructed on neighboring properties;
The daycare facility will be compatible with the neighborhood; there is no proposed new construction.
The Board found this requirement to be satisfied.

.5      The proposed use will not create nuisances to neighboring properties because of odors, fumes, glare, hours of operation, noise, vibration or fire hazard or restrict access of light and air to neighboring properties;
The daycare facility will not create nuisances to neighboring properties.
The Board found this requirement to be satisfied.

.6      The proposed location for the use has no peculiar physical characteristics due to its size, shape, topography, or soils which will create or aggravate adverse environmental impacts on surrounding properties;
The daycare facility will not have an adverse impact on the environment or surrounding properties.
The Board found this requirement to be satisfied.

.7      The proposed use has no unusual characteristics atypical of the generic use which proposed use will depreciate the economic value of surrounding properties;
The daycare facility will have no unusual characteristics that would depreciate the economic value of surrounding properties.
The Board found this requirement to be satisfied.

.8      If located in a shoreland zone, the proposed use (1) will not result in damage to spawning grounds, fish, aquatic life, bird and other wildlife habitat; (ii) will conserve shoreland vegetation; (iii) will conserve visual points of access to waters as viewed from public facilities; (iv) will conserve actual points of access to waters; (v) will conserve natural beauty and (vi) will avoid problems associated with flood plain development and use.  [Amended, effective 12/2/86]
The Board determined the property is not in a shoreland zone.

In addition, Section 603.2.7 was reviewed with the following findings.

In addition to the standards contained in Section 603.2.3, all special exceptions must conform with the performance standards set forth herein.  No use already established on the date of adoption of this ordinance shall be so altered or modified as to conflict with or, if already in conflict with, to further conflict with these performance standards.

.1      The volume of sound, measured by a sound level meter and frequency weighting network (manufactured according the standards prescribed by the American Standards Association), inherently and recurrently generated shall not exceed a maximum of 60 decibels at lot boundaries, excepting air raid sirens and similar warning devices;
The daycare facility will not generate any noise that is not typical to the neighborhood.
The Board found this requirement to be satisfied.

.2      Vibration inherently and recurrently generated shall not exceed a peak particle velocity of .01 inches per second at lot boundaries;
There will be no vibration or noise above the peak particle velocity of .01 inches per second at lot boundaries.
The Board found this requirement to be satisfied.

.3      No materials or wastes shall be deposited on any lot in such form or manner that they may be transferred beyond the lot boundaries by regularly recurring natural causes or forces, and all materials which cause fumes or dust, constitute a fire hazard, or are edible or otherwise attractive to rodents or insects if stored out-of-doors shall be in closed containers;
There will be no materials or wastes that would constitute a fire hazard, or attract rodents or insects.  There will be no materials stored out-of-doors.
The Board found this requirement to be satisfied.

.4      The emission of noxious, odorous matter across lot boundaries in such quantities as to be offensive to persons of ordinary sensibilities is prohibited; and
There will be no emission of noxious, odorous matter across lot boundaries to be offensive to persons.
The Board found this requirement to be satisfied.

.5      No discharge into any private sewage disposal system, or stream or into the ground of any materials in such nature or at such temperature as to contaminate any water supply or otherwise cause the emission of dangerous or unhealthful elements is permitted, and no accumulation of solid waste conducive to the breeding of rodents or insects shall be allowed.  [Amended, effective 12/2/86]
The septic system on the property is adequate for the proposed use and is functioning normally.
The Board found this requirement to be satisfied.

Discussion on the motion:

Mr. Black asked if State licensing for childcare facilities had restrictions regarding providing education.

Ms. Storey stated no.

Mr. Black asked about the history of licensing requirements.

Ms. Donna Kane stated within the last two years State licensing has changed dramatically, ratios of care, educational requirements for staff, and criteria has been added requiring training classes for childcare providers.  Last November the State changed regulations and everyone operating a childcare facility had to be in compliance by this November.  The regulations were also updated in 1997 and 1994. Ms. Kane stated she received her approval for her daycare in 1990.  She stated it appears the struggle of the Board is the word education.  It is not the same education children seven years old would receive.  The children will be learning how to use scissors and coloring.  Most of the childcare centers offer the same programs as a nursery school; only the offerings are spread out during the day.  The nursery school is the easiest licensing to obtain from the State.  A nursery school can be in a basement, but a daycare facility must have daylight areas with windows.  

Mr. Wyman stated the State will issue their licensure and the Planning Board will conduct Site Plan Review.  The Board of Appeals issues variances and special exceptions.  An applicant must prove the need for a variance.  A special exception is neither special nor an exception but tantamount to a permitted use.  The Board is trying very hard to make sure the request meets the definitions of the Ordinance.

After much discussion the Board voted on the following motion.

Mr. Kendall moved to find the enterprise proposed by Linda and Philip Storey to be a daycare center.

Mr. Manahan seconded.                               VOTE:  Unanimous

The Board reviewed Section 408A with the following findings:

408A.1  Purpose:

It is the intent of these provisions to allow the location of day care centers and nursery schools in healthy and safe environments in a manner that will not be disruptive to neighborhoods.  Such uses should be considered integral components of neighborhood life.  [Amended, effective 12/13/89]

408A.2  Standards for Day Care Centers and Nursery Schools:

In addition to state requirements and the requirements of any other ordinance, including the special exception and site plan review ordinances; the following standards shall apply to the review of day care centers and nursery schools:

.1      No Day Care Center or Nursery School shall be located on a lot less than 24,000 square feet in area.
The daycare facility will be located at 50 Middle Road; the lot size is 3.6 acres.
The Board found this requirement to be satisfied.

.2      Day Care Centers and Nursery Schools shall have at least 1,000 square feet of lot area per child received into the home, including the operator's own children under 16 years of age.
The house has a total of 1,100 square feet of lot area, which would accommodate 31 children.
The Board found this requirement to be satisfied.

.3      Day Care Centers and Nursery Schools shall be subject to the provisions of Sec. 7.15 -- Sewage Disposal -- of the Cumberland Subdivision Ordinance.  At a minimum, the applicant must present the approval of the Town's local plumbing inspector that the proposed Day Care Center or Nursery School's sewage disposal system can accommodate the proposed use.
The septic system is adequate for a family plus an accessory apartment.  The septic system is to be pumped on 11/20/03 as a preventative measure.
The Board requested as a condition of approval that the Plumbing Inspector inspect the septic system and verify it is working properly.

.4      There shall be a fifteen-foot setback for outdoor play areas in side and rear yards, which setback shall be enforced by fencing and/or plantings.  Outdoor play areas shall not be permitted in front yards or yards adjacent to a street.
The applicant is proposing a fenced in play area in the back of the house.
The Board found this requirement to be satisfied.

.5      There shall be one (1) off-street parking space for each employee and volunteer worker not living at the site, and the parking area shall be designed to provide a safe location for vehicular ingress and egress and for the loading and unloading of children.
The existing condition plan shows a total of five existing parking spaces, which will be adequate for the number of proposed employees.
The Board found this requirement to be satisfied.

.6      The Planning Board and/or the Board of Adjustment and Appeals may attach additional conditions directly related to screening and buffering, hours of operation, vehicular access restrictions, off-street parking, traffic volume, wastewater disposal, and barriers and other safety devices. [Sec. 408A enacted effective 12/13/89]

Mr. Wyman asked about the above ground pool?

Ms. McPheters stated the Board could leave it up to the Code Enforcement Officers discretion.

The Board discussed the size of the proposed sign.  The applicant has requested a sign similar to the existing sign at the pediatric clinic.

Ms. StoreySmith stated they were given permission for a 4 x 4 sign for the clinic and have a sign of 3 x 5.  

Ms. McPheters stated she has been requesting that a sign compliance plan is part of the review process.  Generally the planning department has indicated as long as the sign meets the requirements it is not necessary to be shown on the plan.  Ms. McPheters stated she thinks a 25-square foot sign is a little excessive for a residential district.

The Board agreed on a sign no greater than ten square feet.

Mr. Kendall moved to approve the application of Philip and Linda Storey for a daycare center at 50 Middle Road, Tax Assessor Map R01, Lot 50A in the Rural Residential 2 district.  The approval is conditioned upon the applicant presenting approval from the Towns local plumbing inspector that the proposed daycare center sewage disposal system can accommodate the proposed use, and further conditioned upon signage to be limited to ten square feet two-sided.

Mr. Black seconded.                                 VOTE:  Unanimous

Minutes of October 9, 2003 meeting.

Mr. Martin moved to approve the minutes of the October 9, 2003 meeting.

Mr. Black seconded.                                 VOTE: 4 in favor (Martin, Wyman, Turner, Black)
                                                                 2 abstain (Manahan, Kendall)

Mr. Black asked if the language of daycare and nursery school could be addressed.

Ms. McPheters suggested a workshop.

The meeting was adjourned at 8:20 p.m.

A TRUE COPY ATTEST:



__________________________                           _______________________
R. Scott Wyman, Board Chair                                 Pam Bosarge, Board Clerk