Town of Cumberland, Maine - August 4, 2005 Board of Appeals Minutes

Mr. Wyman welcomed the applicants and gave an overview of the rules of procedure for the meeting. Stating there would be opportunity for public testimony. The meeting is a make up meeting.

Hearings and Presentations:

1. Special Exception - Planet Dog requests a special exception for Light Manufacturing; Day Care for employee's children and a Retail Store at its proposed Corporate Campus on Lots 4 & 5 of the Cumberland Business Park, U.S. Route One, Tax Assessor Map R02D, Lot 1 (portion); representative SYTDesign Consultants, owner Guidi Flash Holdings, LLC.

Mr. Longley presented background information as follows: Planet Dog requests a special exception for Light Manufacturing; Day Care for employee"s children and a Retail Store at its proposed Corporate Campus on Lots 4 & 5 of the Cumberland Business Park, U.S. Route One.

At the June 9, 2005 meeting the Board the request was tabled by the applicant to allow the applicant to submit additional information. The applicant has a representative present at tonights meeting to provide more detailed information.

Mr. Decker stated that Mr. Travis Bezio, CFO of Planet Dog and Mr. Scott Tieggs, architect were present to answer any questions. Mr. Decker reviewed Planet Dogs proposal as follows: Planet Dog wishes to establish its Corporate Campus on Lots 4 and 5 of the Cumberland Business Park adjacent to Route One in Cumberland. At present Planet Dog is based out of a facility in Portland. The Cumberland facility would be comprised of two buildings attached with a skywalk. The two buildings will total approximately 21,500 gross square feet. The buildings will be located on lot # 4 and would employ approximately 60-people with approximately 54 of them being office support personnel, 4 of them performing packaging and warehouse support and the other 2 would provide retail support. The facility would be open from 8:00 a.m. to 8:00 p.m.; access to the site is planned from U.S. Route One, via a shared access for lots 4 and 5.

This parcel is in the office commercial (OC) zone. Permitted uses in this zone are business and professional offices and research facilities. The CFO has indicated that the primary use of offices for the company headquarters is allowed in the zone. A secondary use of research and development for prototypes of products to be manufactured elsewhere is also permitted. As long as the office use is the primary one, it is our understanding that these two uses do not require any further review from the Board. Light manufacturing and day care for children of employees are special exception uses in the OC zone and require approval by the Board of Adjustment and Appeals. Retail Business is allowed as a special exception in the OC as a "permitted use in the Local Business zone. The light manufacturing will have 500+- sq. ft. and the retail store will be 1,200 +- sq. ft.

Mr. Travis Bezio stated he was the CFO and lived in New Gloucester. He stated Planet Dog is a wholesale manufacturer and distributor of dog toys. They use an injection mold process. The stores are supplemented with leashes, dog beds, etc. They have one retail store in Portland. The proposed light manufacturing is research and development. The development team reviews and tests the molds. The molds are made in Maine and the manufacturing is done at an off site location.

Mr. Wyman asked if any of the materials used were toxic.

Mr. Bezio stated all the materials are FDA approved and not toxic.

Mr. Wyman asked if they made dog toys, dog houses etc.

Mr. Bezio stated toys, fetch, and chew toys that are environmentally friendly for dogs.

Mr. Martin asked about the proposed dog park with trails and the number of employees dogs.

Mr. Bezio stated they are currently in a downtown office with professional offices and a retail establishment. There are no complaints regarding the dogs. There are approximately 7 or 8 dogs in the office. The proposed dog trails are to create an atmosphere where the community can walk their dogs.

Mr. Wyman asked if the area would be fenced, and would the employees dog run at large?

Mr. Bezio stated the current plan is to have the entire area fenced with an internal fence for the employees dogs.

Mr. Martin asked the number of employees.

Mr. Bezio stated 30 50 they have seasonal employees. There are currently 35 employees with 25 in Portland.

Mr. Martin asked the number of employees that bring dogs to work.

Mr. Bezio stated it varied there may be as few as five or as many as ten dogs.

Mr. Kendall asked if the proposed use was research and development and not true manufacturing.

Mr. Bezio stated they have no intention to manufacture and ship products from the Cumberland location.

Mr. Wyman asked about truck deliveries.

Mr. Bezio stated one or two deliveries a month.

Mr. Wyman asked about the retail component.

Mr. Bezio stated the retail would be exclusively their products, used as a showroom, to potential retailers such as LL Bean and Petco. They would sell products to people using the dog trail.

Mr. Wyman asked if they would sell dog food.

Mr. Bezio stated no. Mr. Bezio stated they are known as a contract manufacturer, they dont own any machines for distribution, they design, develop, and research the toys.

Mr. Wyman asked about the daycare, number of children, licensure and if the dogs would be in a separate area of the building.

Mr. Bezio apologized he was not as involved with the day care component. The dogs would be separate. The daycare would meet all the State licensing requirements. Planet Dog would either contract out the daycare or hire an employee with the proper credentials to run the daycare.

Mr. Wyman asked if the applicant were willing to come back to the Board to re-apply for the daycare with more detail, and if the daycare were not part of the application would that be a deal breaker.

Mr. Bezio stated the goal of Planet Dog is to create an environment as a premium place for employees, and the daycare is an important component of the long range plan, he couldnt answer if not having the daycare would put the project in jeopardy.

Mr. Wyman stated a special exception is tantamount to a permitted use; it is neither special nor an exception. The Board has the burden of proving the use will be compatible with zoning.

Mr. Black asked where the product was distributed.

Mr. Bezio stated the project does not return to the home office, they have distribution centers.

Mr. Black asked if dogs were allowed in the store.

Mr. Bezio stated yes.

Mr. Wyman asked if there would be grooming or boarding.

Mr. Bezio stated no, the Portland store does grooming.

Mr. Black asked the time line for opening.

Mr. Bezio stated it would depend upon approvals, but they would like to break ground next spring.

Mr. Martin voiced concern for immediate neighbors with dogs running at large in the fenced in trails; would the trail have buffering.

Mr. Bezio stated the existing walking trails will be preserved, the trails will be gated.

Mr. Kendall stated the OC district permits Health facilities.

Mr. Copp asked the hours of the dog park.

Mr. Bezio stated the property will be gated, yes there will be hours.

Mr. Copp asked who the customer for the retail store was.

Mr. Bezio stated the store will be used as a specialized marketing tool for companies such as LL Bean; Eddie Bauer, and Petco with light retail (walk in) traffic.

Mr. Copp asked if Planet Dog was a franchise or a Maine company.

Mr. Bezio stated it is a Maine company.

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

Ms. Trish Gardner, of Tuttle Road stated she is a current customer of Planet Dog, and thinks trails for dogs will be a great benefit for the community of Cumberland.

Mr. Wyman asked for testimony that was in opposition, neutral or informational.

Mr. Stretch Madore, of 40 Schooner Ridge Road stated he was a direct abutter. His concern was similar to the Boards. He was concerned with barking dogs and the impact dog trail would have on the existing wildlife animals such as turkeys, deer fox etc.

Mr. Martin asked Mr. Madore is he was representing the Schooner Ridge Homeowners Association, and how many homes that involved.

Mr. Madore stated no. There are approximately 29 houses in Schooner Ridge. The concern with dogs is noise, and additional clearing which allows noise from Route One and 295.

Mr. Kendall asked if he could see people on the existing trail and the extent of current use.

Mr. Madore stated he didnt know the current use, but thought it would increase with the senior housing at Rockwood.

Ms. Helen Cleaves, of 89 Schooner Ridge Road voiced the same concerns regarding noise. She stated the clear cutting for Rockwood Phase IV has greatly increased the noise in the neighborhood.

Mr. Longley stated noise, buffering, and trail locations would be reviewed by the Planning Board at Site Plan Review.

Mr. Paul Cloutier, of 54 Schooner Ridge Road voiced concern of the fencing composition and location.

Mr. Kendall stated the plan shows a 100 buffer strip.

Mr. Cloutier stated there is only scrub brush after the 100 buffer.

Mr. Copp stated the plan shows another 300 beyond the buffer.

The public portion of the meeting was closed.

Mr. Decker stated there is approximately 300 to 400 feet between the parking lot and the property. There is no plan to utilize the space for anything other than a trail.

Mr. Black asked about an easement for the trail.

Mr. Decker stated there is a note on the Cumberland Business Park subdivision plat that the trail must be maintained.

Mr. Martin stated it appears all of the recent development on Route One connects to the trail.

Mr. Decker stated that is correct, there has been some discussion regarding moving the trail back further.

Mr. Kendall asked about the buffer on Route One.

Mr. Decker stated the 75 Route One buffer will be maintained.

Mr. Kendall stated based on testimony at the Boards discretion the activity could be defined as research and not manufacturing. Technically light manufacturing would be for outward distribution and sale. The intended use is very light and limited in scope.

Mr. Wyman stated this is a growing company the manufacturing could change.

The Board discussed the definition of light manufacturing, and agreed that the use met the criteria for light manufacturing.

Mr. Longley stated if the company grew and the use changed from what was presented to the Board for approval, Planet Dog would need to come back to the Board for an amended approval.

The Board also discussed the daycare component of the application. It was determined the Board supported the idea, but needed more information to grant approval.

Mr. Bezio requested that the daycare component be withdrawn.

Mr. Wilson asked about the fencing.

Mr. Bezio stated he did not have details, the fence would be low profile, and aesthetically pleasing; the height will be in the four foot range.

Mr. Kendall asked for clarification of the purpose of the fencing.

Mr. Bezio stated to have an area where residents could unleash their dogs.

The Board reviewed Section 603.2.3 with the following findings:

The Board then reviewed the Special Exception standards, Section 603.2.3 with the 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;

Planet Dog will receive Site Plan Review which will ensure that there are no vehicular or pedestrian traffic hazards.

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;

Planet Dog will have public water and sewer and will not cause water pollution.

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;

There will be no unhealthful conditions caused by smoke, dust or other airborne contaminants.

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;

Planet Dogs building will be reviewed by Site Plan Review and will adhere to the Site Plan Review requirements of Section 206 of the Zoning Ordinance and the Route One Guidelines.

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 Board asked that the concern of buffering on the proposed dog trails be reviewed by the Planning Board at its Site Plan Review.

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 proposed location is an approved lot in the Cumberland Business Park, and has no peculiar physical characteristics.

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;

Planet Dog is proposing to operate its Corporate Headquarters in the Cumberland Business Park, the use will not 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.

Mr. Martin voiced concern regarding nuisances of dogs regarding the walking trails.

Mr. Bezio stated the applicant would listen to the Planning Boards recommendation regarding the trail.

Mr. Black stated he understood the concern; however, this use is much less than a commercial health and recreation facility which is allowed in the zone. A commercial dog park could receive approval from the Planning Board and clear cut more of the lot and charge admission to walk dogs.

Mr. Decker stated the Planning Board will review the trails.

Mr. Martin recommended the trail not be re-located to the back of the property with regard for the abutters in Schooner Estates.

Mr. Kendall stated everyone who comes before the Board is treated equal regardless of location or tax basis. All applicants must meet the criteria of the Ordinance.

Mr. Wyman stated the Board is not allowed to discuss in advance regarding applications, everyone receives an equal review. The Board takes their jobs serious as has been evidenced by the discussion this evening.

Mr. Martin stated he would vote affirmatively if the dog trail was not relocated.

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.

shall not exceed a maximum of 60 decibels at lot boundaries, excepting air raid sirens and similar warning devices;

There will not be any sound that will exceed 60 decibels at lo boundaries.

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 not be any vibration associated with the proposed use that will generate a peak particle velocity of .01 inches per second at the 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 stored out-of-doors that will be transferred beyond the lot boundaries.

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 matter across the lot boundaries in such quantities as to be offensive to persons of ordinary sensibilities.

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 proposed use will have Town water and sewer.

The Board found this requirement to be satisfied.

Mr. Black moved to grant a special exception to Planet Dog for light manufacturing and a retail store at U.S. Route One, Tax Assessor Map R02D, Lot 1, Lots 4 & 5 as defined on the Subdivision Plan of Cumberland Business Park.

Mr. Kendall seconded. VOTE: 5 in favor (Wyman, Copp,

Kendall, Wilson, Black)

1 opposed (Martin)

2. Special Exception Uel & Patricia Gardner request a special exception for a Home Occupation to rent storage space for boats and cars in their existing barn at 92 Tuttle Road, Tax Assessor Map R01, Lot 62A in the Rural Residential 2 (RR2) district.

Mr. Gardner, applicant stated would like to restore the 40 x 70 chicken barn on their property. The barn needs siding, a roof, and new foundation. They would offer winter storage for small sports cars and boats in the barn. The barn has a daylight basement on the back side. This is not an enterprise they would like to have this home occupation to raise the money to bring the building up to code. There will be no signage, or advertising on the property. Vehicles will be stored by appointment only, there will be no working on vehicles. There would be a standard coach light at each door. They are proposing 20 cars in the basement and 15 on the main level.

Mr. Wyman asked about the flooring in the basement.

Mr. Gardner stated he has had preliminary engineering done there would be 3-steel beams added for support to the existing 8 x 8 beams.

Mr. Wyman asked if this would be a seasonal business.

Mr. Gardner stated they would store vehicles from October through May.

Mr. Wyman asked if boats would be stored outside.

Mr. Gardner said no, this is their home; all vehicles will be inside, stored and removed from storage by appointment only. There is a loop driveway so no backing onto Tuttle Road will be necessary.

Mr. Kendall asked if there would be any employees.

Mr. Gardner stated no.

Mr. Martin asked the hours of operation.

Mr. Gardner stated 8:00 a.m. to 7:00 p.m. excluding Sunday or if on a Sunday not early.

Mr. Wyman asked if the barn would hold 35 vehicles.

Mr. Gardner stated it would depend on the size of the vehicles, and the steel beam. The engineer will determine an actual number of vehicles for safety.

Mr. Copp asked about the entrance to the lower level.

Mr. Gardner stated there are multiple openings on the backside of the barn parallel to Tuttle Road; he will add garage doors instead of the current rolling barn doors.

Mr. Black asked if this would be a warehouse for cars.

Mr. Gardner stated his intent is for winter storage of summer cars and boats.

Mr. Black stated the definition of Home Occupation does dot define storage as a use and asked if it were a small scale specialized warehouse. A Home Occupation is described as an occupation such as Hairdresser, Dentist, Doctor etc, the zoning ordinance does not allow for warehousing in the district.

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.

Mr. John Chandler of 93 Tuttle Road stated he is an abutter across the street. His concern was cars and boats in the front yard, and hours of operation. He wasnt opposed to Sunday; people who move boats generally do so on a weekend.

The public portion of the meeting was closed.

Mr. Wyman asked about lighting.

Mr. Gardner stated the lighting will at the doors as traditional non-glaring coach lights. The insurance company requires lights.

Mr. Wilson asked what would prevent a customer from showing up in February and asking to get their vehicle.

Mr. Gardner stated the vehicles will be stored with a written contractual agreement, which would prevent anyone from retrieving the vehicle in February. The area behind the barn will not be plowed.

Mr. Kendall reviewed the definition of a Home Occupation.

Mr. Black stated the focus of a home occupation is to allow a professional or skilled individual to perform their job at their residence; it does not provide for the use of the residence in a different way such as a storage unit. The zone does not allow storage units or warehousing.

Mr. Copp stated he disagreed, he felt rental apartments over garages were more intrusive.

Mr. Kendall stated the character of the existing building will be preserved, and the character will not be changed. He asked about storage of vehicles at the fairgrounds.

Mr. Martin agreed it was a good use of the property but the description does not fit home occupation.

The Board reviewed the special exception standards with the following findings:

The applicant has a loop drive with good visibility to east and west, and the use will not create a vehicular or pedestrian traffic hazard.