Town of Cumberland, Maine - December 8, 2005 Board of Appeals Minutes

Mr. Kendall welcomed the applicants and gave an overview of the rules of procedure for the meeting. Stating there would be opportunity for public testimony.

Hearings and Presentations:

1. Foreside Village, LLC requests a special permit for extraction of earth materials at U.S. Route One, Tax Assessor Map R01, Lot 8 and a portion of Lot 11 in the Office Commercial (OC) district, David Chase Owner.

Mr. Longley presented background information as follows: The Applicant was at the Planning Board for permission to renew the permit for one final blast. The one-year renewable permit was issued in March 2003, and has expired. There was a complaint from a neighbor that the blasting was continuing; as a result Mr. Chase was issued a Stop Work Order. Mr. Chase chained off the site to comply with the Stop Work Order and has been continuing in Falmouth.

Mr. David Chase, applicant stated the work is 99% complete. The last blast will result in approximately 1,000 to 1,500 cubic yards of ledge. This blast is needed to clean, grade and seed the site per the requirements of the original approval. The original permit was issued to Mr. Kennedy; he purchased the property from Mr. Kennedy. There is a bond in place in Mr. Kennedy's name, which will be replaced in his name.

Mr. Kendall reviewed the Conditions of Approval from the Planning Board. He asked if the fencing was chain link or if it had been replaced?

1. That the perimeter safety fencing at the top of the slope be repaired/ reinforced.

Mr. Chase stated there is currently a plastic orange snow fence.

2. That a plan for dust control relating to the drilling, blasting, and removal of materials be provided to the CEO prior to the issuance of the permit.

Mr. Chase stated he works under DEP guidelines, and there is water from Portland Water District on the site.

3. That the hours of operation be limited to Monday through Friday from 7:00 a.m. to 5:00 p.m.; no work on holidays as defined by the Town of Cumberland.

Mr. Chase stated he understood the restrictions on the hours of operation.

4. Pre-blast surveys are updated to account for the new housing units along Route 1.

Mr. Chase stated that Maine Drilling & Blasting will update the surveys and they are aware of Hawks Ridge and True Spring Farms

5. That a blasting schedule be provided to and coordinated with the Cumberland Rescue Chief or CEO and Fire Department and that any necessary permits are acquired.

Mr. Chase stated that Maine Drilling & Blasting are aware of guidelines for blasting.

Mr. Wilson asked the purpose of the fence at the top perimeter.

Mr. Chase stated there is a sixty foot face of ledge, for safety of animals, people, etc.

Mr. Wilson asked if the purpose of this project was for site preparation.

Mr. Chase stated yes, the existing land contours are not conducive for a building. The property is being leveled for commercial development. There are no building approvals on the property at this time.

Mr. Wilson asked about the plan for a building.

Mr. Chase stated there are no particular plans at this time.

Mr. Martin asked if the fence would be installed after the work was completed.

Mr. Chase stated the work is almost complete; he needs permission for this final blast to stabilize the site in accordance with best management practices from DEP.

Mr. Martin stated the Planning Board conditioned their recommendation that the safety perimeter fence be repaired / reinforced.

Mr. Chase stated a more permanent fence would be installed within a few months.

Mr. Copp asked the time frame.

Mr. Chase stated he will blast and grade the property and loam in the spring.

Mr. Copp asked if the project could be completed in a year.

Mr. Chase stated yes.

Mr. Black asked when Mr. Chase purchased the property.

Mr. Chase stated approximately two to three months ago.

Mr. Black asked if he was doing any work on the site.

Mr. Chase stated no, he is working on the Falmouth side.

Mr. Black asked the last time he worked on the Cumberland site.

Mr. Chase stated 4 or 5 months ago, he has not worked on the site since the Stop Work Order.

Mr. Black stated the original approval required a chain link fence. Mr. Black asked Mr. Chase if he were willing to comply with the same provisions as the original permit.

Mr. Chase stated yes.

Mr. Black asked about the detention pond.

Mr. Chase stated there is not one; it would need to be constructed.

Mr. Kendall asked if there was a need for a detention pond.

Mr. Chase stated he didn"t see a need, but if DEP stated one was required he would install a detention pond.

Mr. Black clarified that the application was 99% complete.

Mr. Chase stated yes, as far as extracting material, and then the site needs to be stabilized in accordance with DEP regulations.

Mr. Black asked if 99% of the extraction had been done, then the site has changed.

Mr. Chase stated yes.

Mr. Black asked Mr. Chase if he were aware that the approvals had expired.

Mr. Chase stated not initially he had no intent to work without the proper approvals.

Mr. Kendall stated it would have been helpful to have an updated plan showing what has been done on the site and what still needs to be done.

Mr. Manahan stated the problem is that the application is asking the Board to re-issue the same permit, and things are different. A stormwater detention pond may not be required. It would have been very useful to have more clarification on the differences from 2003.

Mr. Chase stated he has additional 50-acres under contract and will have a master plan proposal before the Planning Board in a few months. The current site needs to be stabilized to be in accordance with DEP requirements. He is willing to post a bond to ensure that the work will be completed. The current intent is to clean the site and comply with DEP regulations.

Mr. Manahan asked if there were any other on-going enforcement issues.

Mr. Longley stated no, only the stop work order for failure to have a permit.

The Board discussed the status of the existing Bond.

Mr. Kendall suggested that a copy of the Bond be placed in the file.

Mr. Longley stated the Town Planner or Town Manager would have the details on the status of the current Bond by Mr. Kennedy.

Mr. Kendall asked for testimony from the public in support of the application. There was none. Mr. Kendall asked for testimony that was in opposition.

Mr. Tom Foley, of 29 Granite Ridge Road stated he had some concerns and questions, he understood when the project started that it was for site preparation for building to be built. It seems to have become an ongoing quarry operation. Earth materials have been moved in and out of the site. Mr. Kennedy sold in good faith to Mr. Chase who assumes responsibility, but appears to be not responsible for the Bond or the original permit. Mr. Chase is now asking that the permit be renewed under new conditions, stating that original conditions will be met. His question is clarification on the exact request of the applicant, and location of the final blast. Mr. Chase does not have a vested interest in the Bond of Mr. Kennedy.

The Board reviewed the tax map to clarify the location of the excavation and blasting.

Mr. Dick Corbin, of 1 Granite Ridge Road stated he wanted to make a point of clarification. At Mr. Kennedys approval the following items were represented:

1. A fence would be installed on top of that hill because it is not safe to do any excavation without a fence. It was to be a permanent chain link fence installed as part of the operation.

2. There will be minimal work done; most of the work will be to create a terraced effect, so that there could be plantings and such on the face of the wall. It is now straight down.

3. It was not to be excavated below ground level, so that a basement could go in and be built on slab.

Mr. Black asked if there had been excavation below the adjacent street.

Mr. Corbin stated no, last time he walked up there, there was no excavation below ground. He wouldnt call the wall terraced, and there is only an orange safety fence.

Mr. Kendall asked for testimony that was neither for nor against but on a neutral basis.

Mr. Robert Matulonis, of 7 Granite Ridge Road stated when the project was first proposed the thrust was to do the necessary procedural work on the property to be ready for a building. In looking at the Towns Route One Guidelines there is a lot of emphasis of maintaining a rural character. He thinks the emphasis of the project has changed from construction of a building to quarry mining. He believes it is totally inconsistent with the Towns goals in the Route One Guidelines.

Mr. Wilkinson stated he understood the frustration and concerns, and asked what Mr. Corbin was seeking in opposing this request.

Mr. Corbin stated his remarks were for clarification. Any opposition would be that any present work, be finished in a manner in which it was approved. However, reality sets in, and if the terracing was not done, it might not sense to re-blast for terracing. He would simply like is to have the project finished and as close as possible to the approval.

Mr. Wilkinson stated the parcel is only 2.9 acres, it is a small area.

Mr. Chase stated he is asking for approval for the 2.9 acres, a portion of lot 8. The existing site along Route One has significant contours on the frontage. The earth that has been removed is to allow and encourage commercial development. It looks like a quarry operation, it is a quarry operation, and however, it is done to accomplish the original goals. Once the material was crushed, it needed to be hauled away. He is simply asking for approval to finish what was originally proposed.

Mr. Longley provided the Board with photos of the existing site, which showed the balance of the rock to be blasted. The holes have already been drilled. The property in Cumberland is approximately 2,000 feet from True Spring Farm Condos.

Mr. Manahan stated it is unfortunate this was inherited by Mr. Chase, and there wasnt a new application showing what was completed and what needs to be done.

Mr. Chase stated he was sorry for the confusion. The proposed detention pond is 60 under ledge, he is seeking permission to finish the project. The biggest portion has been completed he must now stabilize the site to prevent erosion, with loam and seeding in accordance with the DEP requirements. An alternative would be for the Town to cash in Mr. Kennedys Bond and hire someone like himself to finish the project.

Mr. Martin asked if he could complete the project as approved by June 2006.

Mr. Chase stated yes.

Mr. Kendall asked for an explanation of what was needed for approval.

Mr. Chase stated there was attempt to terrace the rock; it cant be planted in accordance with the plan, unless there is more blasting.

Mr. Wilson asked if 1,000 cubic yards was variable, could it be 50,000 cubic yards.

Mr. Chase stated yes, it is variable, but he is confident there is approximately 1,000 cubic yards.

Mr. Wilson asked if the rock were terraced how many yards would that add.

Mr. Chase stated approximately 2,000 cubic yards.

Mr. Foley asked if the blasting would be right across the street from Hawks Ridge.

Mr. Longley stated the entrance is substantially south of Hawks Ridge.

The public portion of the meeting was closed.

Mr. Wilkinson stated the deed of August 2005, states a parcel of 500 feet by 300 feet deep, this is a relatively small piece of land, it would be better to finish up the work and stabilize the site.

Mr. Manahan agreed with everything, he was inclined to approve based on the previous submittal.

Mr. Copp agreed with Mr. Manahan, he would have liked to see the fence installed prior to any blasting.

Mr. Manahan moved to approve the application in the name of Mr. David Chase, for a special exception permit effectively identical to the permit the Board granted in March, 2003, to Foreside Village, LLC and based upon those same application materials as amended as discussed at the December 8, 2005 meeting, for extraction of earth materials at U.S. Route One, Tax Assessor Map R01, Lots 8 and potentially a portion of Lot 11 in the Office Commercial district; with the conditions included in that prior approval and based upon the assumptions of the prior approval and the five conditions discussed in the Planning Board Notice of Decision; and specifically with regard to Condition # 1 of the 5 conditions that the perimeter safety fencing at the top of the slope be repaired or re-enforced to provide an adequate warning barrier before any further work is conducted on the site; and within a period of 90-day the fencing required by the approval of March 2003 be in place.

The Board conditioned its approval with the following conditions:

· That the wetlands are accurately depicted on the plan.

· That a local blasting permit is received and Bill Longley, Code Enforcement Officer is notified 24 hours prior to the start of the blasting.

· That the letter of credit or surety bond be approved by the Town Manager

Planning Board Conditions for Advisory Recommendation:

1. That the perimeter safety fencing at the top of the slope be repaired/ reinforced.

2. That a plan for dust control relating to the drilling, blasting, and removal of materials be provided to the CEO prior to the issuance of the permit.

3. That the hours of operation be limited to Monday through Friday from 7:00 a.m. to 5:00 p.m.; no work on holidays as defined by the Town of Cumberland.

4. Pre-blast surveys are updated to account for the new housing units along Route 1.

5. That a blasting schedule be provided to and coordinated with the Cumberland Rescue Chief or CEO and Fire Department and that any necessary permits are acquired.

Mr. Martin seconded. VOTE: 6 in favor (Black, Wilkinson, Manahan, Martin, Kendall, Copp)

1 opposed: (Wilson)

Mr. Wilson motioned to amend the motion to include the language limiting the gravel extraction to 1,500 cubic yards.

Mr. Manahan seconded. VOTE: 1 in favor (Wilson)

6 opposed (Black, Wilkinson, Manahan, Martin, Kendall, Copp)

The amendment did not carry. The original motion was approved.

2. Cumberland Salvage requests an expansion of a Non-Conforming Use for an addition at 40 Blackstrap Road, Tax Assessor Map R07, Lot 60 in the Rural Residential 2 (RR2) district: Jerald Copp, owner, applicant.

Mr. Longley stated there was a small amendment to the application; the proposed addition will be 50 x 38 instead of 40 x 38. The applicant received Minor Site Plan approval from the Planning Board subject to approval from the Board of Adjustment and Appeals.

Mr. Copp asked to be recused, as the applicant is a relative.

Mr. Jerald Copp reviewed his request as follows: He stated he is the owner of Cumberland Salvage located at 40 Blackstrap Road. He is requesting to construct a small 38 x 50 attached addition to an existing office/garage building. The structure will be stick built with wooden materials, T-1-11 siding, and a pitched roof. The addition is needed to provide space for two extra dismantling bays. There will be no removal of fuel or other contaminants in this area. This inside area is needed so that cars and workers can be indoors during the winter months. This business has been in operation for over 30 years. There will be no special or hazardous wastes generated from the use of this space. Most vehicles arrive on site having been drained of all fluids. There are no additional utility requirements such as water, electric, septic. No additional employees are contemplated. There will be no external changes to the site such as entrances, parking, loading, etc. There will be no increase to traffic as a result of this addition. All setbacks are respected. The site is completely flat with a sand and gravel surface / soils. Fire protection will be from the West Cumberland Fire Station which is located approximately 1 mile to the East.

Mr. Kendall asked if the applicant was moving existing operations under cover, the equipment already exists.

Mr. Copp stated yes.

Mr. Black asked if the building conformed and the use is non-conforming due to the adoption of the Ordinance.

Mr. Copp stated yes.

Mr. Manahan reviewed the criteria in Section 501.1.1 - Expansions of a Non-Conforming Use.

Mr. Longley stated in researching the file there has been three recent additions, since the adoption of current zoning, the three previous expansions came before the Board for review. The Board determined the extension was not necessary.

Mr. Black reviewed Section 501.4.1 - Extension of a Non-Conforming Use.

Mr. Manahan stated the structure is not non-conforming, just the use.

Mr. Kendall stated the intensity has not changed or expanded, this addition will put current activities under cover.

Mr. Manahan stated Section 501.1.1.4.2 states an expansion &when a determination by the Board of Adjustment and Appeals that the proposed use has no greater adverse impact upon the subject and adjacent properties and resources than does the existing use,&.

Mr. Kendall stated the Ordinance is ambiguous and has to be resolved in favor of the applicant.

Mr. Manahan agreed the criteria was vague.

The Board reviewed Section 501.1.1 and based on testimony determined the request met the standards.

501.1.1 - A non-conforming building may be added to or expanded after obtaining a permit from the same permitting authority as that for a new structure, if such addition or expansion does not increase the non-conformity of the structure or expand the area of a non-conforming use. The number of square feet of floor area devoted to the non-conforming use may not be increased, unless the Board of Adjustment and Appeals finds that the proposed expansion of the non-conforming use will not adversely affect other property in the same district and neighborhood and that the granting of such approval by the Board will not substantially depart from the intended purposes of this Ordinance.

The addition will not adversely affect other property in the same area; the addition will be in the back of the existing building.

The Board found the standards of this section have been met.

Mr. Manahan moved to grant an expansion of a non-conforming use for a 38 x 50 addition at 40 Blackstrap Road, Tax Assessor Map R07, Lot 60 in the Rural Residential 2 (RR2) district.

Mr. Black seconded. VOTE: Unanimous

2. Administrative Matters

1. Approval of Minutes of September 8, 2006

Mr. Manahan moved to approve the minutes of September 8, 2005.

Mr. Martin seconded. VOTE: Unanimous

3. Adjournment

Mr. Manahan moved to adjourn at 9:15 p.m.

Mr. Martin seconded. VOTE: Unanimous

A TRUE COPY ATTEST:

___________________________ _____________________________

Adrian Kendall, Board Vice-Chair Pam Bosarge, Board Clerk

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