Staff:                 Barbara McPheters, Code Enforcement Officer, Pam Bosarge, Clerk

The meeting was called to order at 7:15 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 to approve a request.

Hearings and Presentations:

1.      Interpretation                      Lee Bowman
                                                  34 Deer Point Road
                                                  Chebeague Island, ME 04017
                                                  Tax Assessor Map I01, Lot 74

Ms. McPheters presented background information as follows: Lee Bowman requests an interpretation of the Code Enforcement Officer's decision to deny electrical service for a storage shed at 34 Deer Point Road on Map I01 Lot 74 in the Island Residential / Limited Residential Shoreland Overlay (IR/LR) Districts.

This issue was raised as part of a recent request from an electrical contractor to apply for a permit to install a service on the building.  The building was constructed as a storage shed and is the only building on the lot.  

Historically, the Code Enforcement Office has not issued permits for outbuildings due to the requirements of the Zoning Ordinance that if a use is not specifically allowed then it is prohibited (see Section 103).  A principal use must be established prior to accessory structures being permitted.  Robert Littlefield, former Building Inspector, issued the permit on April 25, 1997 and an electrical permit for a 100-amp service was issued on May 1, 1997.  The electrical permit has since expired.  

The record indicates that a violation existed in August and September 1997 due to the occupancy of the shed by the owner"s daughter.  Based upon notes written by Bob Littlefield, the applicant was advised on the process to convert the shed to a dwelling.  The record is silent on other activity until the time of this request.
The Board will need to determine whether the decisions of the Code Enforcement Officer are in conformity with the provisions of this Ordinance, and interpret the meaning of the Ordinance in cases of uncertainty as required in Section 603.2.1 of the Zoning Ordinance.

Mr. Wyman stated he had talked with the applicant by phone prior to the hearing.

Mr. Bowman, applicant stated the Town had issued a permit for service in 1997.  He had the service disconnected about a year and a half later.  It is true his daughter camped out in the shed, for a short time.  The shed is used in connection with his lobster fisherman business.  He didnt see a problem with the daughter camping in the shed as opposed to a tent.  He would like to use the shed for utility purposes connected with his lobster fishing business.  

Mr. Wyman asked if he had previously had electricity.

Mr. Bowman stated yes, it was disconnected in 1999.

Mr. Kendall asked if the shed would be used for fishing purposes.

Mr. Bowman stated that currently he needed the electricity for his workshop to repair and build traps.

Mr. Kendall asked about Section 204.3, which allow uses, related to commercial fishing.

Ms. McPheters stated they are allowed as a home occupation.  The shed is the only structure on the property.

Mr. Kendall asked how close Mr. Bowmans house was to the property with the shed.

Mr. Bowman stated approximately ½ mile away.

Mr. Wyman asked if there was anything else stored in the shed.

Mr. Bowman stated lobster equipment and some junk.

Mr. Copp asked if the lot was a buildable lot.

Ms. McPheters stated it would need a septic and well, but with the size it is potentially buildable.

Mr. Wyman asked for testimony from the public in support of the application.  There was none.  Mr. Wyman asked for testimony that was in opposition, neutral or informational.  There was none.  The public portion of the meeting was closed.

Mr. Kendall referenced Sections 101, 102 and 103 the purpose and intent of the Ordinance.

Mr. Wyman asked if Ms. McPheters would have a guess as to why the building permit was issued.

Ms. McPheters that stated she didnt know, in reviewing past permits Mr. Littlefield did deny requests for accessory structures without dwellings.

Mr. Wyman asked Ms. McPheters if she had visited the property.

Ms. McPheters stated no.

The Board discussed the uses related to commercial fishing and home occupations.

Mr. Wyman stated uses related to fishing in the Island Business district do not need to be home occupations.

The Board referred to the original building permit, which referenced residential use.  It makes no sense to deny the request; the building and electrical permit has already been issued.

The Board reviewed Sections 204.4.3 and 104.27 with the following findings and conclusions.

204.4.3 Uses related to commercial fishing, including storage and repair of traps, seines, boats and other equipment, the keeping and cooking of fish for sale at retail on the premises, and fish processing as a home occupation.
The applicant stated the shed is used to store, maintain and build lobster traps and equipment related to his full time employment as a lobster fisherman.
The Board found the use of the shed conforms to the requirements of Section 204.4.3.
Based on the information provided the Standards of this section have been met.

104.27 Commercial Fishing: Activities directly related to commercial fishing and those commercial activities commonly associated with or supportive of commercial fishing, such as the manufacture or sale of ice, bait and nets, and the sale, manufacture, installation or repair of boats, engines and other equipment commonly used on boats [Adopted, Effective 12/10/91].
The applicant uses the shed to store, maintain and build lobster traps and equipment related to his full time employment as a lobster fisherman.
The Board found the use of the shed conforms to the requirements of Section 104.27.
Based on the information provided the standards of this Section have been met.

Mr. Kendall moved to find that the use of the shed located at 34 Deer Point Road, Tax Assessor Map I01, 74 are related to commercial fishing and a permitted use.  The Code Enforcement Officer will issue permits accordingly.

Mr. Turner seconded.                                VOTE:  Unanimous

2.      Special Exception                           Timothy Gooch
                                                  199 Gray Road
                                                  Cumberland, ME 04021
                                                  Tax Assessor Map U20, Lot 70
The item was tabled at the applicants request.

3.      Special Permit                      Town of Cumberland
                                                  Goose Pond Road
                                                  Cumberland, ME 04021
                                                  Tax Assessor Map R07, Lot 48
                                                  Industrial District

Ms. McPheters presented background information as follows: The Town of Cumberland requests a special permit for a gravel pit at Goose Pond Road on Map R7 Lot 48 in the Industrial (I) District.

The applicant is requesting approval of the annually renewable special permit to operate a gravel pit as a municipal use.  The Public Works Director, Adam Ogden will be representing the Town in this request.  The Board is requested to approve the one-year, annually renewable special permit as allowed in Section 410.1.  At the March 18, 2003 Planning Board meeting, the applicant received a favorable advisory recommendation.  A copy of the recommendation is included as part of the submittal.  The question of requiring a surety bond is not applicable in this instance because the Town of Cumberland will not issue a surety bond to itself.

The Board will need to determine that the use will comply with the Extraction of Earth Materials regulation as stated in Section 410 of the Cumberland Zoning Ordinance:

Mr. Ogden, Public Works Director presented an overview as follows: the town owns a ten-acre gravel pit off from Goose Pond Road.  The gravel pit is surrounded on all sides by gravel pits.  A new access road was installed last year.  The State processes stockpile at its pit.  The gravel pits have been excavated to the common boundaries as allowed by Code.  There have been no complaints, there is a buffer along the road and they have had no accidents or vandalism.  Mr. Ogden provided an aerial view with the new access road.

Mr. Wyman asked if there were any environmental hazards.

Mr. Ogden stated there are no chemicals on the land and there are monitoring wells, five feet above the water table.  The facility is gated and locked.  There is contamination in other areas of West Cumberland, which have been contained.  The 3:1 slopes are maintained and there are berms.

Ms. McPheters confirmed she had received no complaints within the last year.

Mr. Wyman asked Ms. McPheters if she had any concerns with issuing the permit.

Ms. McPheters stated none.

Mr. Wyman asked for testimony from the public in support of the application.  There was none.  Mr. Wyman asked for testimony that was in opposition, neutral or informational.  There was none.  The public portion of the meeting was closed.

The Board reviewed the standards of Section 410.3 with the following findings:

Sec. 410        Extraction of Earth Materials

410.1   Top soil, rock, sand, gravel and similar earth materials may be removed from locations where permitted under the terms of this Ordinance only after the granting of a one year, annually renewable special permit for such operations as may be issued by the Board of Adjustment and Appeals and under such terms and conditions as may be approved and provided for by the Board and as provided for in this Ordinance.

410.3   Standards:

.1      The operation shall be shielded from surrounding property by an adequate buffer area of not less than 200 feet from the top of the final grade to the property line, except that the Board of Adjustment and Appeals may reduce the buffer area from the minimum requirement of two hundred (200) feet to a minimum requirement of not less than one hundred (100) feet provided that any excavated property remaining will be left in a condition more useful for some future purpose conforming to the district requirements in which the excavation site is located.
The property is bordered on all sides by gravel pits. The common boundaries have been excavated with no buffers as allowed in the original site plan approval that was drafted by the Town Attorney.
The standards of this section have been met.

.2      An applicant may specifically apply as a part of his application for the excavation and removal of lands to the Board of Adjustment and Appeals for waiver of the requirement of the 200 foot buffer strip when the protective barrier serves only to separate two existing gravel pits.  The Board of Adjustment and Appeals may only grant a waiver from this requirement of the Ordinance if (1) the protective buffer zones exist only between two existing gravel pits, (2) the owner of the respective properties mutually and voluntarily consent to the removal of the buffer zone, and (3) the Board of Adjustment and Appeals find that it shall not have a detrimental effect upon adjoining properties.
The Board determined this standard did not apply.

.3      Specific plans shall be established to avoid hazards from excessive slopes and/or standing water.  In no case may soils be removed or excavated to closer than within five (5) feet of the seasonal high water table as may be determined by a competent authority.  Where an embankment must be left upon the completion of operations, it shall be at a slope of not steeper than one (1) foot vertical to three (3) feet horizontal, except that where the required buffer area has been reduced to 100 feet the slope of the edge of the excavation area shall not exceed one (1) foot vertical to four (4) feet horizontal.
There are monitoring wells on the property and the soil is not excavated to closer than within five (5) feet of the seasonal high-water table.
The standards of this section have been met.

.4      No standing water shall be allowed to remain longer than two consecutive calendar weeks unless specifically provided for by the Board of Adjustment and Appeals.
There is no standing water in the pit, any standing water is melting snow and ice and does not remain longer than two consecutive calendar weeks.
The standards of this section have been met.

.5      In the case of any excavation to a depth of more than 20 feet below the surface there shall be constructed a substantial fence with suitable gates completely enclosing the property or area in which the excavation is located.  No portion of such fence shall be located closer than forty feet to the edge of such excavation.  However, this condition shall not apply in the case of an excavation or removal of lands adding a slope of one-foot vertical to greater than 3 feet horizontal.
There is a berm along Goose Pond Road until the woods line, the entrance is cabled and the other access is gated.
The standards of this section have been met.

.6      No excavation shall be extended below the grade of adjacent streets unless a 200-foot buffer strip shall be provided from the edge of the right-of-way except in cases where a specific condition has been made with the consent of the Board of Adjustment and Appeals and other involved parties such as the Cumberland Highway
Department, Maine State Department of Transportation and other property owners for the reconstruction of the right-of-way and street at a different level.
The elevation is not below the adjacent streets.
The standards of this section have been met.

.7      Provision shall be made for the control of stormwater runoff to prevent on-site erosion, and to ensure that stormwater runoff leaves the site at the same location and is not significantly increased.
The stormwater pit is internally drained.  There is no off site impact.
The standards of this section have been met.

.8      Sufficient topsoil shall be retained on the site or otherwise provided sufficient to cover all disturbed areas with an average depth of not less than two (2) inches.  All disturbed areas resulting from the excavation and removal of lands or soils shall be graded and sloped to conform to the provisions of this Ordinance, reloamed and seeded with grasses indigenous to the area and such trees as the Board of Adjustment and Appeals may require and otherwise restored to a natural condition.  In the case of topsoil removal, the upper six inches of topsoil shall be stockpiled and restored to a depth of six (6) inches throughout the site.
The Board determined this standard did not apply.

.9      Loaded vehicles shall be suitably covered to prevent dust and contents from spilling or blowing from the load.
Based on testimony from the applicant all trucks are covered with tarps.  There will be no dust and contents spilling or blowing from the load.
The standards of this section have been met.

.10     All access roads leading from the extraction site to public ways shall be treated with stone, calcium or other suitable materials to reduce mud and dust.
The applicant has not used calcium, there have been no complaints of dust, and the exit surface is re-claim pavement.
The standards of this section have been met.

410.4   A surety bond shall be posted with the Town Treasurer by the applicant in an amount and form approved by the Board of Adjustment and Appeals with the advice of the Town Manager sufficient to guarantee performance and conformity with the provisions of this Ordinance and approval of the special permit for the excavation and removal of lands.
The Board determined this standard did not apply.

410.5   The foregoing provisions shall not apply to any lawful use of land for the removal of sand or gravel and the quarrying of stone, existing at the time of adoption of this Ordinance provided, however (a) that no such existing operation shall expand closer to or within two hundred feet to any adjoining property line or to the line of any existing public way, (b) that no such existing operation which may be within two hundred feet to any such adjoining property line or the line of any existing public right-of-way shall be permitted to expand closer to such line or lines, and (c) existing restrictions as may have been previously provided for previous approvals shall continue in full force and effect, and (d) further provided the Board of Adjustment and Appeals shall have the authority to approve applications for the expansion of such existing pits or quarries into such areas, under the same terms and conditions as it may approve applications for new gravel pits and quarries for the excavation and removal of lands pursuant to the provisions of this ordinance.
The Board determined this standard did not apply.

410.6   This subsection shall not apply to (a) extraction necessarily incidental to construction, alteration, excavation, or grading for which a building permit has been issued, (b) to extraction from one portion of a lot for use on another portion of the same lot, or contiguous lot of the same owner, or (c) removal of topsoil from a site that is less than one acre in area during a one-year period.
The Board determined this standard did not apply.

410.7   Violations of this section of the Ordinance shall be punishable by a fine as established by order of the Town Council.  Each day such violations are permitted to continue to exist shall constitute a separate violation. [Amended, effective 9/1/98]
The Board determined this standard did not apply.

Mr. Copp asked how long the pit would be productive, and if gravel was used from the pit for the reconstruction of Blanchard Road.

Mr. Ogden stated it is estimated that the pit will be operational for 50 years, depending on the Town projects.  The Blanchard Road project used 10,000 yards of three-inch gravel and 2,600 yards for drainage of bank run sand.

Mr. Copp stated the gravel pit is saving the taxpayers thousands of dollars.

Mr. Turner moved based on the findings and conclusions of Section 410.3 to grant to the Town of Cumberland a special permit for extraction of earth materials at the Town owned gravel pit located at Goose Pond Road, Tax Assessor Map R07, Lot 48 in the Industrial district.

Mr. Kendall seconded.                        VOTE:  Unanimous

4.      Variance                                   Dwight and Lori Shibles
                                                  24 Woodside Drive
                                                  Cumberland, ME 04021
                                                  Tax Assessor Map U14, Lot 104
                                                  MDR / Setback Overlay 2 districts

Ms. McPheters presented background information as follows: Dwight and Lori Shibles request a variance of six (6) feet from the forty (40) foot rear setback requirement for an addition to a single family dwelling at 24 Woodside Drive on Map U14 Lot 104 in the Medium Density Residential / Setback Overlay 2 (MDR/SO2) District.

The applicants are requesting approval for a two-story addition to accommodate an expanded dining area, a new family room on the first floor and a bedroom on the second floor.  The applicant has provided plans for review.  It appears that, based on the recent right-of-way ordinance changes, this variance may no longer be required.  The Board should review the lot line definitions, in particular the rear lot line as it applies to a corner lot.

The variance request must comply with the following practical difficulty definition found in Section 104.97.

Ms. Shibles presented a new plot plan to the Board that was drawn by Greg Thorpe.  She stated that if the addition were reduced it wouldnt enlarge the dining room.

Mr. Wyman asked if the building could be moved forward.

Ms. Shibles stated she still wouldnt be able to meet the setback.

Ms. McPheters stated that the property is in the Setback Overlay 2 District.  The amendments approved by Council on March 24, 2003 to Section 107.74 b state: on a lot that abuts more than one street, the rear lot line shall be that line opposite the shortest front lot line.  The shortest front lot line is Longview.  The new addition would be considered a side setback.  These amendments went into effect immediately, she mistakenly had the understanding that the amendment went into effect in thirty days.
Ms. McPheters stated the application could be withdrawn.

The Board reviewed the amendments to Section 104.74 b, that were approved and adopted on March 24, 2003.


The Board considered the request of Dwight and Lori Shibles for a variance of six (6) feet from the forty (40) foot rear setback requirement for an addition to a single family dwelling at 24 Woodside Drive, Tax Assessor Map U14, Lot 104.  

Mr. Kendall motioned based on amendment changes to Section 104.74 b, and information provided, the applicant did not require a variance and no action was taken.  

Mr. Turner seconded.                         VOTE:  Unanimous

Administrative Matters

1.      Minutes of March 13, 2003 meeting.

Mr. Kendall moved to approve the minutes of the March 13, 2003 meeting.

Mr. Wyman seconded.                   VOTE:  2 in favor (Kendall, Wyman)
                                             2 abstain (Copp, Turner)

2.      Update on Ordinance Changes

Ms. McPheters stated the Council had voted to adopt the right-of-way changes on March 24, 2003.

She stated she would not be at the June 2003 meeting, and asked Mr. Kendall if he would provide the background information from the meeting notes.

Mr. Kendall agreed.

Mr. Kendall motioned to adjourn.

Mr. Copp seconded.                           VOTE:  Unanimous

Adjournment: 8:15 p.m.

A TRUE COPY ATTEST:



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