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HomeMy WebLinkAbout2007-01-16 Planning Board Minutes PLANNING BOARD OF THE CITY OF BANGOR MEETING OF JANUARY 16, 2007 MINUTES Board Members Present: Robert Guerette, Chairman Nathaniel Rosenblatt Jeff Barnes Allie Brown Laura Mitchell City Staff Present: David Gould Peter Witham Bud Knickerbocker News Media Present: Bangor Daily News Chairman Guerette called the meeting to order at 7:00 p.m. In the absence of Members Wheeler, Clark, and Theeman, Associate Members Barnes, Brown and Mitchell were asked to vote. PUBLIC HEARINGS Item No. 1: To amend the Land Development Code by changing a parcel of land located at 53 Davis Road from Rural Residence and Agricultural District to Low Density Residential District. Said parcel containing approximately .687 acres. Green Tree Servicing, LLC, applicant. C.O. # 07-58. Chairman Guerette opened the Public Hearing and asked the applicant or their designee to make a brief presentation. Attorney Bob Neault, representing the applicant, explained that the applicant acquired this property by virtue of a foreclosure action. In the process of the sale the prospective buyer, in speaking with the Code Enforcement Officer, discovered that somewhere along the line there was a problem. Originally the Finson Gardens Subdivision was approved as a four-lot subdivision and there were mobile homes placed on these four lots. However, in 1989 a mobile home was placed on the wrong lot and outside of the contract zoned area of the Finson Gardens Subdivision. Mr. Neault explained that the applicant is requesting this zone change in order to correct this problem. Mr. Neault indicated that he had heard from only one neighboring property owner, Mr. James Nelson, who had no objections to this zone change. 2 Mr. Rosenblatt asked how mobile the mobilehome is and which property did his client own. Mr. Neault indicated that the mobile home has been on this lot for going on 20 years and would suggest that it’s probably not very mobile at all at this point in time. The applicant owns only 53 Davis Road. Chairman Guerette indicated that there were other options available to the applicant such as moving the mobilehome off the lot, or buying additional land from the abutting landowner to make the lot conforming. He asked Mr. Neault if they had explored any of these options. Mr. Neault indicated that they certainly could be pursued but he felt that there is an issue with the remaining property on the back side that would create a problem with the remaining lot. Ms. Brown asked if this situation would create title problems for the owners of the lots in the subdivision. Mr. Neault indicated that this would correct a title problem. All of the lots have now been restructured in terms of deeds and title issues and this was done in 2002. The problem is that nobody realized or took that extra step to say that this is now outside of the properly zoned area and that they needed to come back before the Planning Board. Mr. Rosenblatt asked what the dimensions were of this lot, specifically the width. Mr. Neault indicated that it is 75’ x 399’. Mr. Rosenblatt asked if it is a conforming lot in the Low Density Residential District. Mr. Gould indicated that it is not. Chairman Guerette asked for comments from proponents or opponents. No one spoke and Chairman Guerette closed the Public Hearing and asked for the Planning Officer’s report. Planning Officer Gould indicated that the applicant, Green Tree Servicing, LLC, is requesting a zone change from Rural Residence and Agricultural District to Low Density Residential District for .687 acres located at 53 Davis Road. Mr. Gould explained that in the late 1980’s the property was rezoned to Contract Low Density Residential with the idea of developing it into a cluster, low-density residential housing area. Subsequently, the Contract Zone Change was amended because the applicant at the time did not want to deal with a homeowner’s association for open space and that standard was deleted from the contract. There is a public sewer along Davis Road at that location. The applicant’s title comes by way of a foreclosure on the property. At that time it was discovered that the property was not in the Low Density Residential District but in the Rural Residence and Agricultural District which requires a significantly larger lot and acreage. It was not part of the subdivision that had specific standards about density and open space. Planning Officer Gould indicated that the lot is too small in the district and some kind of corrective action is needed. The Legal Office contacted the Planning Staff and asked if it was reasonable for this lot be included in the same Contract Zone as the adjacent subdivision. In review of what had transpired and how the subdivision was developed, it was felt that the contract conditions really dealt with a common open space and it didn’t make sense for this particular piece of land. The City’s Land Use Policy and Zoning Policy indicate that this side of Davis Road is an area that would be considered for Low Density Residential use. The issue of compliance or nonconformity of the lot is not a Planning Board issue to resolve as this is something that the Code Enforcement Office and the Legal Office are going to have to review. The issue before the Board is what is the appropriate zoning for this part of Bangor. Planning 3 Officer Gould indicated that he felt that the Land Use Plan is very clear that there is sewer and water service here and the City sees it as an area that ought to be low density residential. Staff recommended that the Board make a positive recommendation to the City Council. Chairman Guerette asked why the Board was being asked to rezone this from one nonconforming zone to another and what the advantage would be to the applicant or to the City to have it zoned Low Density Residential as opposed to Rural Residence and Agricultural District. Planning Officer Gould indicated that it would be the same reason why any land that is indicated for Low Density Residential Use. The question is, is it going to preclude those land uses that would be allowed in the Rural Residence and Agricultural District. Chairman Guerette indicated that he was going to rely on the broad direction that the Comprehensive Plan provides the Board in voting in favor of this particular zone change. He did not see this as a magic fix but did not see any harm in doing it either. A small lot with one home on it is probably better zoned in Low Density Residential than it is in Rural Residence and Agricultural and for that reason he would support it. Mr. Rosenblatt moved that the Board recommend that the City Council approve the proposed zone change at 53 Davis Road from Rural Residence and Agricultural District to Low Density Residential District as set forth in C.O. # 07-058. Ms. Mitchell seconded the motion. The motion passed unanimously. OTHER BUSINESS Item No. 2: Church Road – Wetland Information Chairman Guerette indicated that the next item for discussion was the delineation and status of the wetland on Church Road that is currently in a Resource Protection District because of its use as a deer wintering area. Planning Officer David Gould indicated that this issue goes back to 2003 when the Church Woods Subdivision was developed. One of the wetlands showed up on the zoning map as resource protected which means that it falls under Shoreland Zoning. A reason this occurred is there was a freshwater wetlands map that was done in the early 1980’s by the State and sent to the City. The State said that these needed to be included under Resource Protection or Shoreland Zoning in order to be protected. This is the only information the State provided. Staff went to some other sources of information available to try and delineate the wetlands for the zoning map and this is how the current shape and configuration of the wetland on Church Road came about. In 2003, based on on- site survey work, the delineation showed that it was a forested wetland which is not governed by Shoreland zoning and it would be exempt. The applicant for the Church Woods Subdivision was very interested in pursuing the subdivision and did not want a delay while the Board debated whether this could be rezoned or not. The applicant obtained a conditional use permit to build Skyline Drive at the edge of the Resource Protection District. Several months ago Staff revisited this again when the applicant and owner of one of the lots that is largely contained within this wetland wanted to do some filling and grading in a portion of their side yard. Mr. Gould referred to the maps provided to the Board regarding wetlands resource mapping, some current Department of Environmental Protection (DEP) 4 wetlands guidelines, the National Wetlands Inventory (NWI), mapping from Beginning with Habitat, two aerial photos that depict the area in 2001 and 2005 and some of Staff’s correspondence with the Department of Environmental Protection. In 2003 the Planning Staff brought it to the attention of DEP that they didn’t think the wetland met the Shoreland zoning criteria and DEP concurred. Also provided to the Board was a copy of Mr. David Moyse’s environmental study that evaluated the wetland on the ground which is the most thorough investigation of that wetland. Mr. Gould noted that Staff feels that this doesn’t warrant Shoreland Zoning protection nor does it need to be Resource Protection Zoning. In order to undo this, a rezoning would have to be initiated. Mr. Gould explained that a rezoning can only be initiated by the Planning Board, the City Council, the City Manager, or a property owner that has right, title or interest in the property. This wetland, as delineated on the maps, is on a half dozen different properties and it doesn’t seem to make sense to do it as a piecemeal approach. Mr. Gould explained that the Board needs to make a decision as to whether or not to initiate the process, do the notice to the people within 100 feet, to advertise, to holding a hearing and have a discussion. Mr. Gould indicated that it is Staff’s position that it doesn’t meet the criteria under Shoreland Zoning to be protected. Staff can only recommend that it be rezoned back to Rural Residence and Agricultural; it is up to the Board whether or not they want to initiate any action. Mr. Rosenblatt asked how large the Resource Protection area is and if this were a freshwater wetland in excess of 10 acres would it have to be zoned Resource Protection. Mr. Gould indicated that there is a significant difference between what Mr. Moyse has done on the ground, which is extremely accurate, compared to the area that was drawn on the zoning map based on some photography that was done in the mid 1960’s. Mr. Gould indicated that the area is 10 acres or larger and it is nonforrested. There is no question that there is wetland but what it appears to be is wooded and not an open water bog which was the underlying intent of shoreland zoning. It still will be a protected by the Natural Resource Protection Act (NRPA) but it would not have the protection under the City’s Shoreland Zoning guidelines. Mr. Rosenblatt asked about the deer yard. Mr. Gould noted that while the deer yard is a state mapped element it really doesn’t have a key role in shoreland zoning. It’s really a wetland issue and not a deer yard protection issue. The Church Woods Subdivision Phase I came in under the DEP threshold and there was no real review of impacts to the deeryards. When they came back for approval of Phase II it was over the DEP threshold and needed to be reviewed. Inland Fisheries & Wildlife was contacted and they indicated that there weren’t any issues there. Staff then pointed out that there was a deeryard there and Inland Fisheries and Wildlife said that they had made an error. When the City did the Final Subdivision Plan, open space and a buffer zone was incorporated into the subdivision to try to meet Inland Fisheries and Wildlife guidelines relative to the deer yard. Chairman Guerette asked what would be lost if the Shoreland Zoning designation were lifted. Mr. Gould indicted that the Board would lose their ability to weigh in on a decision as to whether there was an impact and the decision would be made by the DEP. Mr. Gould noted that there is a new map from DEP which includes more areas that they are now saying are moderate and high value freshwater wetlands that the Board will need to 5 add or at least discuss not adding them in the next two years. Any area that meets the criteria Staff would recommended that it be added and if doesn’t meet the criteria the Board should take action to say no it shouldn’t be within Resource Protection. He noted that this particular wetland is not on DEP’s new map. Ms. Mitchell asked why this was originally designated under Shoreland protection. Mr. Gould indicated that Staff received a map from the State indicating the areas that needed to be protected. He added that Staff does not go out and field check them. Until someone actually does a project and goes out and explores it in depth, Staff goes with the best information available. Chairman Guerette indicated that he felt that any forested wetland that is a deeryard is, in fact, a resource that should be protected. As development in the City expands outward it is incumbent upon the Board to have a vision to be able to protect and preserve some of these areas. He indicated that he was reluctant to change this. Mr. Rosenblatt indicated that he agreed with Chairman Guerette and added that he would prefer to leave it as it is. Ms. Mitchell said that she did not feel that this area should be removed from Resource Protection when there are considerable opportunities for development otherwise in Bangor. Ms. Brown agreed. Mr. Barnes said that he did not feel it would hurt to go forward and have a public hearing on the matter and see what the neighbors have to say. Item No. 3: Draft Landscaping/Buffer Concepts. Planning Officer Gould indicated that Staff is developing some new guidelines relative to buffer yards and landscaping requirements. This is a result of discussions a year ago. Mr. Gould distributed a proposed amendment draft for discussion with the Board before it if formally submitted. Mr. Barnes felt that the proposed amendment is a good start and he noted that Mr. Gould had done a lot of work on it. Mr. Rosenblatt had questions about the increase in the side yard and building setback and asked if this was something new. Mr. Gould explained that there has been a lot of confusion relative to transition yards especially when you have a commercial zone next to a residential zone. Also there are multiple choices for different plant materials and different widths. Mr. Gould discussed the various buffers and widths. He added that this amendment is an attempt to make it clear that a transition yard is about building setback and that additional setbacks relative to parking are in the parking section. In the new proposal as you get to each level there is a minimum width and you are not going to the next level and be able to make the width narrower. Chairman Guerette asked for an explanation on the amendment to Chapter165-69 E. Mr. Gould indicated that in 1987 some developers came to the City to do a unique attached residential project called Orchard Hills which was the first of its type in the City. At that time, Staff drafted language called Planned Group Development and said if you come to the City and you get approval of a project and then you want to carve it up into small parts so that different individuals can own these little substandard parcels it really doesn’t matter because 6 the whole development has been approved. Now, more and more abutting property owners are saying that they don’t want to do a buffer yard or meet the setbacks and if they can get their neighbor to join them with a planned group development they won’t have to meet any of those provisions. This amendment would bring back required landscaping that is lost when a Planned Group Development is created. Mr. Gould indicated that language is also being proposed that would promote the idea that in parking lots a certain percentage of area needs to be landscaped space. This new language is trying to say if you have 50 or more spaces in a parking lot you are going to have a requirement that a certain amount of internal space to the parking lot has to be green space or landscaped space. It is not just the five foot island as it is today. It would be based upon a percentage as opposed to every other double row of parking. Chairman Guerette asked about the proposed changes to the parking setbacks and asked if these would create nonconformities on existing properties. Mr. Gould indicated that every time you change the standards or make them stricter to require more you are going to create nonconformities. In 1991 most all of the parking setbacks in the City were doubled from what they were. What this amendment tries to do is gear the amount of setback and buffering to the amount of asphalt that is in the parking lot. So that most of the smaller operations won’t have a big problem. It is much harder to screen 1,000 parking spaces than 60 parking spaces. Ms. Brown asked if an applicant had the ability to request a waiver or relief from the standards. Mr. Gould indicated that the State of Maine has a thing called a variance with very specific criteria about what is an undue hardship. It cannot be self created and you almost have to prove no viable use for the property unless the variance is granted. The State of Maine said that Planning Board’s have no authority to grant waivers to standards. That is not to say that the City can’t have a flexible standard but you can’t defacto give somebody a variance and call it waiver. What is written in the Code is what the standard is. Ms. Mitchell said that often the problem with the buffer isn’t that something hasn’t been planted it is whether what has been planted is not growing. She asked if there was a way to ensure that over a two-year timeframe that all of the shrubs that have been planted actually are alive. Planning Officer Gould indicated that there is no definitive way for the Planning Board to do this. The required screening or buffer may be on the approved plan but when you go out into the field they are not in compliance with the plans or the materials that have been planted have died. Ms. Mitchell asked if there was some statement that can be made that shows that it is not just up to planting it but it is a requirement that they’re checked in on after two years to ensure growth and when replanting is required. Mr. Gould explained that with the Land Development Code there is provision for a Certificate of Compliance which is a process that the Code Office uses when someone wants to get a Certificate of Occupancy to move in. There is also a requirement that is in the Land Development Code that requires someone from the applicant to go out to the site and verify that the site is in compliance with the approved plan. The Board discussed berms, fencing and setbacks. Mr. Gould noted that most often the development entity wants the narrowest bufferyard available because they want to use as 7 much of their site as they can. Mr. Gould asked the Board to review this amendment and if they have comments to send them to the Planning Office. Other Business Chairman Guerette indicated that in light of the City Council Planning session that is going to take place next week, it would be helpful to get the Board’s input on what they feel are the important issues for discussion. Mr. Gould, referring to his proposed top ten list of Comprehensive Plan implementation issues, asked if there were any other issues that the Board felt should be on this list. Mr. Rosenblatt indicated that there were two issues that he would like to see added. First that of traffic, and the other reviewing the site development plan standards as he did not feel that there were as good as they could be. Mr. Gould indicated that in the wake of the past Wal- Mart project there was a big initiative to rewrite the standards, at that time. Mr. Rosenblatt indicated that he has looked at the standards from other communities. Some are different while others offer some good ideas. He suggested that some level of service standards for traffic such as no level of service of D or lower be considered. Chairman Guerette indicated that he would put the subdivision standards as a high priority regarding streets, open space, and sidewalks. Ms. Mitchell agreed with Mr. Rosenblatt’s suggestion about traffic and the site development plan standards and highlighted the subdivision section and open space and trail plans as priority issues. Mr. Gould noted that he had a couple of model subdivision ordinances and he would forward a link to the Board for their review. In other business, Mr. Gould announced that the Planning Board Members have been th invited to participate in Bangor Reads on January 29 at the new Police Station. Regarding an upcoming presentation by LeMar Cannon on “Linking Land Use with Water Quality” he asked if th February 27 was a date that would work for a special meeting. It was the consensus of the Board that this was a convenient date. Mr. Rosenblatt noted the recent meetings held regarding the waterfront and asked if the Board could be kept informed of that process. Mr. Rosenblatt asked about the petition and supporting information sent to the Board regarding the Harris Subdivision on Ohio Street. Planning Officer Gould indicated that some of the abutting property owners to this proposal submitted the petition with some supporting information for Staff to give to the Planning Board. Rather than wait until the applicant applies for final plan approval, Staff providing this to the Board and in the event that an application is filed, Staff will give this information out again at that time. There being no other items for discussion, the meeting was adjourned at 8:55 p.m.