Loading...
HomeMy WebLinkAbout2010-05-04 Planning Board Minutes PLANNING BOARD OF THE CITY OF BANGOR MEETING OF MAY 4, 2010 MINUTES Board Members Present: Allie Brown, Chairman Paul Bolin Doug Damon John Kenney John Miller Andy Sturgeon City Staff Present: David Gould Norman Heitmann Paul Nicklas Bud Knickerbocker Chairman Brown called the meeting to order at 7:00 p.m. PUBLIC HEARINGS Item No. 1: Amending Chapter 165-13 – Definitions and Chapter 165- 31 –Temporary Sales of Food or Merchandise to amend hours, duration and number of vendors. City of Bangor, applicant. C.O. # 10-152. Chairman Brown opened the Public Hearing and asked for a presentation. Planning Officer David Gould explained that some individuals approached the City about the concept of providing food service down at the waterfront. The Parks and Recreation Department who oversees the waterfront looked at how they could set up spaces for a number of different vendors. As the idea evolved, the Code Enforcement Office looked at the existing regulations that deal with temporary vendors and determined that regulations dictated one per lot. The idea of having a cluster of multiple vendors would not be allowed. In review of the standards, there were issues relative to the hours of operation and the number of days allowed which did not correspond with what was intended at the waterfront. Staff took a look at the 2 regulations and tried to make adjustments so that there could be multiple vendors at the waterfront for the “summer season.” Mr. Gould indicated that the definition and guidelines in place are essentially an exemption from Planning Board review of site plans which is administratively handled by the Code Enforcement Office. The changes proposed include changing the hours allowed from day light hours to typical park hours, to increase the number of days from 90 days to 150 days (the “summer season”), and the number of vendors allowed. Planning Board Members asked if the provisions were city-wide, would adversely impact established businesses, and if the guidelines would allow alcohol and mobile vendors. Mr. Gould noted that while the existing provisions allow for temporary vendors in numerous zoning districts City-wide, some special provisions are being added for the waterfront. Assistant City Solicitor Paul Nicklas indicated that there are different provisions for those vendors that don’t leave. This amendment makes provisions for those vendors to leave their carts on the lot and return to the lot every day. Mr. Gould noted that a temporary vendor likely offers a different product than what may be available in an existing establishment with tables, chairs, wait staff, air conditioning, etc. Assistant City Solicitor Paul Nicklas noted that serving alcohol would require a liquor license and mobile vendors would not meet the current definition. No one spoke either in favor of or in opposition to the proposed amendment. Chairman Brown closed the Public Hearing and asked for a motion. Mr. Damon moved to recommend approval of the proposed amendments to Sections 165-13 Definitions and Section 165-31 Temporary Sales of Food or Merchandise as contained in C.O. #10-152. Mr. Bolin seconded the motion. The Board voted 6 to 0 in favor. NEW BUSINESS Item No. 2: Planning Board Discussion – Legal Issues. City Solicitor Norman Heitmann and Assistant City Solicitor Paul Nicklas discussed with the Planning Board several legal issues that the Board encounters. The issues include: Right, title, or interest Mr. Heitmann explained that it is important to make sure that the applicant has some ownership or right of ownership in a property to allow them to apply for a request. He indicated that the applicant is the owner, not the engineer, architect, or attorney. If the application is not signed by the applicant it is incumbent upon staff to 3 make sure it is. It is the applicant’s obligation to make sure that he/she has right, title, or interest not the Board’s to show that he doesn’t. Right to Know Law Mr. Heitmann indicated that public meetings require a public notice. This requirement is a notice of the meeting not the agenda. The Board is not required by law to have an agenda. However, it is the practice of the Planning Board to have an Agenda and it allows the public to know what the Board is discussing. The meetings can be recorded by the public but cannot be done in such a way as to disrupt the meeting itself. Mr. Heitmann indicated that there is a distinction between a public meeting and a public hearing. The public has no right to speak at a public meeting but the public has the right to speak at a public hearing. Chairman Brown noted situations where there are members of the public present who wish to speak. In those cases she has asked the Board whether they wish to allow the public to speak stating to the public that it is not a right but a decision on Board’s part. Mr. Heitmann indicated that while he has worked for the City he has never seen a situation where someone from the public has not been allowed to speak even though the Board is not required to do so. Ex parte communication. Mr. Heitmann discussed ex parte communication which is communication outside of the public proceedings. The Planning Board By-Laws prohibit it and there is a risk of having an illegal meeting. Examples would be if there is a Board of seven members and four of the members happen to run into each other and start a discussion then you have the argument that you’re having a public meeting that the public is not aware of. Another example would be when Board Members are e-mailing each other which could also be argued is a public meeting. All discussion needs to be at the public meeting so that all parties involved can have the benefit of the discussion. An applicant is entitled to due process and a fair and impartial hearing and if you are learning things on your own or through unsolicited opinions from the outside you need to bring that in to the meeting so that the applicant understands this and everybody else who wants to participate understands this. Mr. Bolin asked about conducting site visits. Mr. Heitmann indicated that the problem with site visits is that it is not a controlled environment. This is a situation where you have a good number of people and you are spread out over the site where conversations could end up being private conversations because others are either too far away to hear or have moved off the site. There is a lot of inherent risk with having a site visit. The Board should give long and hard thought before deciding to hold a site 4 visit. There are some that are appropriate, some that are necessary, but if possible, it is best to avoid them because there is the risk of creating a lot of problems. Mr. Heitmann also noted that whatever the Board does in writing regarding a Planning Board item is a public document and someone could request copies even if it is on their personal computer. Conflicts of Interest and Bias. Mr. Heitmann indicated that guidelines for conflicts of interest and bias are set forth in the City’s Code of Ethics, as well as, the Board’s By-Laws which the Board needs to follow. In a situation where a Board member has a conflict, they need to go away from the table and sit in the audience. Examples are financial gain where it is your property under consideration. Another example is special interest which is a direct or indirect interest having a value particular to a certain individual or group, economic or otherwise, which may accrue to the individual group as a result of the action of the Board and that interest is not shared by the general public. An example of this would be when you work for someone. There may not be a direct benefit but there may be an indirect benefit from it. Bias is a situation where someone doesn’t have the ability to make a fair and impartial objective decision. If one has a bias or knows of one that has a bias on the Board this needs to be noted and that person or persons need to abstain from voting. Board Members discussed various scenarios for which Members of the Board would have a conflict of interest. Mr. Gould noted a couple of situations where someone was in opposition to a project and signed a petition against it and another where someone attended a meeting and spoke against it. Later on they became a member of the Board and the issues came up again before the Board. In both cases, because they took a public position for or against the issue creates a bias. Mr. Heitmann indicated that sometimes people ask irrelevant questions and if the person asking the question votes against a project an argument could be made that the person is biased because of what they were told. He also told the Board that it should not negotiate minor changes to a plan. This is another form of bias. Conditional Approvals Assistant City Solicitor Nicklas discussed conditional approvals. He indicated that the Board is allowed to add conditions, but they have to be related to and address a standard. It has to be necessary in order to insure compliance, it should be stated in the decision, and it should be referenced on the plan. In the case where it is not financially feasible for an applicant to do so, rather than attach a condition the Board should deny the request. 5 Findings of Facts and Conclusions Mr. Nicklas explained that the primary place where the requirements for Findings of Fact and Conclusions are found under the Freedom of Access Law. It has been customary for the Findings of Fact and Conclusions to be prepared and presented to the Board for adoption and amendment at the next regularly scheduled Planning Board meeting. It is good practice for Board Members to state all reasons both for and against but the Board needs to state the reason for voting against a request. Mr. Heitmann indicated that under the Right to Know Law there is no requirement that running minutes be kept but it does require that a written record for every decision be kept that involves a conditional approval or a denial of an application. Mr. Gould indicated that the Staff of the Legal and Planning offices are available to assist and support the Board to get through the applications. APPROVAL OF MINUTES Item No. 3: Planning Board Approval of Minutes. Chairman Brown indicated that the Minutes of the April 6, 2010 and Special Meeting on April 13, 2010 were in order. Mr. Bolin moved to approve both sets of Minutes. The motion was seconded and it passed unanimously. There being no further items for discussion, the meeting was adjourned at 8:05 p.m.