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HomeMy WebLinkAbout2006-09-05 Planning Board Minutes PLANNING BOARD OF THE CITY OF BANGOR MEETING OF SEPTEMBER 5, 2006 MINUTES Board Members Present: Robert Guerette, Chairman Hal Wheeler David Clark Nathaniel Rosenblatt Miles Theeman Allie Brown Jeff Barnes 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. PUBLIC HEARINGS Item No. 1: Conditional Use/Site Development Plan approval to revise the plan for construction of twelve, four-unit attached residential buildings in a Low Density Residential District at 1434 Ohio Street. Sable Ridge Land Investment, LLC, applicant. Chairman Guerette opened the Public Hearing and asked for a presentation from the applicant. Mr. Fred Marshall of Plymouth Engineering represented the applicant, Sable Ridge Land Investment LLC. Mr. Marshall explained that this is a follow-up to a prior approval to renumbered the condominium plan. During the construction process there were some changes that occurred on the site. Mr. Marshall indicated that the project is still 48 units as was approved back in 2004. The changes include some of the buildings have increased in size by two feet width and length, there were bulkheads added to get access to the basements, decks were added, in some instances there were little dog houses added for access to mechanical rooms and there were some utilities that were changed from overhead to underground. Mr. Marshall indicated that these changes were never approved on the original site plan as they were added as the project progressed. Mr. Marshall indicated the owner would like to relocate a proposed middle building to the back of the developed area to allow for more space 2 behind the existing unit that was built. In the process of relocating that building they asked to increase its size because they have a purchaser who wants to buy the entire building but wants larger units than the ones that are currently being constructed. Mr. Marshall said that overall there is a slight increase in impervious surface. The building that was removed allows more room for open space, a detention pond was increased, and the building was moved to a portion of the parking lot that was previously toward the wetland side. Chairman Guerette then asked for proponents. There being none, he asked for comments from opponents. Ms. Gisela Murray who lives in the one of the units asked if the maintenance building that was originally proposed would be relocated on the site, if they would lose parking spaces because of this relocated building, and if the applicant proposed any additional parking spaces available for use of tenants who may have company. Mr. Hunter Tracy, an abutting landowner who resides at 41 Dana Drive, indicated that he was in opposition to the relocation of the buildings. He indicated that ever since the project was started last year there has been a pile of stumps, brush, trees, and dirt left on the site. Also, because there is a thin row of trees remaining that do not have their lower branches he can see this from his property. This past spring they did get rid of the pile and replaced it with their dumpster, cardboard, a lift that is used for scaffolding, and piles of rocks. He said that he did not feel that that was being a good neighbor and this is right up against his property. Mr. Tracy noted that there was a vernal pool on his property that has gone dry and that at one time last year had ducks, turtles, frogs in it. He questioned if the EPA knew about this. No one else spoke and Chairman Guerette closed the Public Hearing and asked for the Staff report. Planning Officer Gould indicated that the application in front of the Board is from Sable Ridge Land Investment requesting conditional use and site development plan approvals to revise the existing plan to construct 12, four-unit attached residential buildings in the Low Density Residential District. This project originally came before the Board in April of 2004. At that time, the Board found that it did meet the standards for conditional use and site development plan approvals. At this point in time the project is approximately half built out. As the Board is aware in recent visits by the applicant, some of the details of the site development have changed from that original approval in 2004. As was noted, it is the City’s interest that the plan that is on file matches what is on the ground in the field and Staff encouraged the applicant to come forward with any changes that have occurred in the site since that time and any changes that they would like to make to the plan before it is completed. The conditional use standards require a parcel to at least 5 acres in size, and have a development density of five units per acre. Mr. Gould noted that in this instance they are attaching four single-family units in 12 separate buildings and the parcel is approximately 9 acres in size. The parcel has a fairly significant wetland in the middle of it and what they have done to meet the development standards is to largely contain all of their development on the Ohio Street side of that large wetland. The applicant has proposed and has submitted to the City pre and post stormwater analysis of the site indicating that in the post development scenario no more stormwater would come off of the property than would occur before the project was built. That is done through a number of detention ponds that are within the site. The new plan deletes the maintenance building so it is no longer a part of the project. All of the parking that is shown on the plan is all of the parking that is approved for the plan. Details of the building setbacks, lot coverage, 3 and number of parking spaces all meet the City’s minimum standards. Mr. Gould pointed out that the side yard setbacks are 20 feet and noted that the Board may be aware that in past instances with neighbors 20 feet is not a lot of space so that a building 20 feet away may appear extremely close but is the development standard that the City has set for attached residential buildings. In some locations where parking is adjacent to the adjacent property some buffer or vegetation is required. There is no specific buffer required between these units and abutting residential property. Mr. Gould it is sometimes unfortunate that the Planning Board does not review interim construction details in terms of where a developer may stockpile materials or handle waste materials. This is handled through the Code Enforcement Office. In this application, the Board is looking at the built-out condition of the project in terms of the location of the buildings, the arrangement of parking spaces, utilities and those other details. Staff finds that this is in order for the Board’s approval. Staff feels that it meets the conditional use standards set forth in the Land Development Code and recommends that the Board grant the applicant site development plan approval and developmental subdivision approvals because the multiple buildings are considered a subdivision under the State’s subdivision law. Mr. Rosenblatt asked what the changes are between what was approved before and what is before the Board now. Mr. Gould indicated that one entire building has been moved to the back of the site where the old maintenance building was and some of the buildings are slightly larger but they are all in the same location as before. Ms. Brown asked under the current regulations if the applicant only had to provide two parking spaces per unit. Mr. Gould indicated that this is correct. Chairman Guerette asked Mr. Marshall if he would like to make any closing comments. Mr. Marshall indicated that he could not address the issue of the brush and stumps as it is an operational aspect and not a design aspect. He indicated that he would pass this concern along to the developer and contractors. Regarding the vernal pool, Mr. Marshall indicated that when the environmental work was done on the site a vernal pool was not an issue. It was not something that was regulated and they are not regulated yet in the State of Maine. What he believes may have occurred is in the original design, and in talking with the Engineering Department, there is a large wetland in the middle of the site. The City Engineer had a concern that the wetland might fill up and overflow into abutting properties and recommended that a field drain be installed. That field drain (and he is not sure that it has been installed) would drain the surface water adjacent to the wetland. In reality a vernal pool should not be showing up at this time of the year as they are a spring event. In answer to Mr. Tracy’s questions, Mr. Marshall indicated that the Maine DEP and the Army Corps of Engineers issued a wetlands permit and a stormwater permit and were aware of the issues on this site. The only wetland that was disturbed was on Ohio Street where the detention pond is at the entrance to the site. Mr. Theeman noting that the Staff Memorandum indicated that the applicant was in the process of revising the stormwater calculations which have to be approved by DEP and asked if this has been done. Mr. Marshall indicated that it has not been done but said that any time there is a change it has to go back to the DEP for a revision to their license. 4 Chairman Guerette asked for a motion. Mr. Rosenblatt moved to grant Conditional Use approval to the proposed revised development at 1434 Ohio Street – Sable Ridge Land Investment, LLC, applicant. Mr. Theeman seconded the motion, which carried unanimously. Mr. Rosenblatt moved to grant Site Development Plan approval for the revised development proposed for 1434 Ohio Street – Sable Ridge Land Investment, LLC, applicant. Mr. Theeman seconded the motion which also carried unanimously. Mr. Rosenblatt moved to grant Developmental Subdivision Plan approval for the revised development at 1434 Ohio Street – Sable Ridge Land Investment, Inc., applicant. Mr. Theeman seconded the motion. The motion carried unanimously. Item No. 2: Conditional Use/Site Development Plan approval to construct two, two-unit attached residential buildings in a Low Density Residential District at 745V & 785 Mount Hope Avenue. – Sites Realty – Julie B. Sites, applicant. Chairman Guerette opened the Public Hearing and asked for a presentation. Mr. Fred Marshall, of Plymouth Engineering representing the applicant, explained that this is a project to construct two, duplex buildings for a total of four units on a 13.5 acre parcel located at 745V and 785 Mt. Hope Avenue. The buildings are proposed as single-story duplex units primarily aimed for sale to retirees. Mr. Marshall explained that this is the first phase of a multi-phased project and what is driving this first phase is the issue of urban impaired stream. Meadow Brook is an urban impaired stream and the DEP rules require that impervious surface to stay under 20,000 sq. ft. This project is designed to be under that threshold. The applicant has submitted a Permit by Rule to DEP for the stormwater process and the project is designed so that when it goes to the next phase and gets into the next level of permitting they will not have to go back and redo everything. Mr. Marshall explained that they propose to treat the stormwater on the site in accordance with the current rules which is why this plan is for a small development on a large piece of property. He indicated that the property has been delineated for wetlands and initial vernal pool identification. This proposal is effectively a driveway serving two buildings with two units each. Each building will have a deck, a two-car garage with enough room in front of each garage for two additional cars. Chairman Guerette asked the Mr. Marshall to delineate the entire of 13.6 acre parcel on the map. Mr. Marshall noted the lot and indicated that there is an existing residence on the property which is proposed to be separated out as a separate property. It is currently rented and is not part of this project. Chairman Guerette asked for comments from proponents. There being none, he asked for opponents. Mr. Nicholas Brountas indicated that it was not his intention to be against this project but to express his concern. But after listening to the applicant’s presentation he indicated that he had more concerns. Mr. Brountas explained that he and his wife reside at the northerly end, at the terminus of Meadowbrook Road which is a dead end street. His wife is the sole owner of a vacant lot located on the westerly side of the street directly across from their residence. Meadowbrook Stream runs along the northerly portion of both lots and both lots are adjacent to most of the applicant’s land. His noted that the Land Development Code states that 5 one of the requirements is that the project contain a minimum area of 5 acres and asked if the five acres would be allocated to this phase of the project or if it would be utilized by other buildings. Mr. Brountas said that if the five acres is going to be allocated to the two buildings, he would like to see a delineation of the lines of the five acres around this project. Mr. Brountas indicated that while this project as it appears now seems like a fair and one that may not impairing his adjacent land, he was concerned what affect the full blown project would have. He was concerned about the location of future development on this site and said that if the applicant proposed to come before the Board in another month with plans to develop the remaining area he suggested that this be deferred until such time so that the Board could go over the entire project. He indicated that he would not be in favor of a project that could or may impair his property. His second concern is that of any possible runoff of surface water onto their land. He said that the applicant’s land is at a higher elevation than their property. He did not know what separate lotting to be created on the site plan meant nor did he understand the proposed parking requirement. He asked for an explanation of the parking setbacks noted on the plan. Mr. Brountas noting that Ms. Sites does a good job at anything that she undertakes, he is concerned about any future development and to what extent it would infringe upon Meadowbrook Road properties. As no one else spoke, Chairman Guerette closed the Public Hearing and asked for the Planning Staff report. Planning Officer Gould indicated that this application is from Sites Realty, Julie Sites who is asking for conditional use and site development plan approvals to construct 2, two-unit buildings which are single units attached by a common wall for a total of four units. The minimum land area in which one can propose attached residential in a low density residential district is five acres. There are two parcels totaling 13.6 acres and meet the five acre minimum. At this point in time all the Board has before them are the two, two-unit buildings on that acreage. While it is anticipated that there may be future development, this is the only application the Board has in front of them. The application has been driven by some of the standards set by the Department of Environmental Protection (DEP) and the Impaired Watershed Standards which give them some additional leeway in doing a project with less than 20,000 sq. ft. of impact in terms of their submission requirements to the DEP. That is why the Board is seeing the size and scope of this first phase of the project. Under the Low Density Residential District the density standard is five units per acre. Over the total 13 acres there is obviously room for more units. Mr. Gould indicated that the applicant has provided details relative to stormwater impacts of this project that include some of the more modern stormwater techniques of infiltration beds built around these buildings. Mr. Gould indicated that today, stormwater quality has become much more important than stormwater quantity and the City would be mindful of any stormwater impacts that would occur downstream or down gradient of the project. Given the small scale of the project it would not seem to be a large impact at this point in time. As more parking lots get built and as more buildings are proposed the developer’s stormwater details would reviewed at that point in time. Mr. Gould discussed the conditional use criteria noting that the Board needs to be mindful of traffic in terms of causing unreasonable traffic congestion off-site, and will the building and structures be consistent with architectural styles in this general area. Mr. Gould indicated that the one detail that Staff did not get an answer to was the specific area that would be taken out of the 13 acres to be included with the existing house on the property. While there is no reason 6 why the applicant couldn’t include a single-family residence within the project it is Staff’s belief that it is the applicant’s intention that this area be removed from the project with an acreage large enough so that it would still be able to meet the 5 acre minimum so that the units within the project would meet that density standard. Planning Officer Gould indicated that Staff is comfortable that all of the details of the project meet the conditional use standards for attached residential in the Low Density Residential District. Staff also felt that the Site Development Plan also meets the Site Development Plan approval standards and recommended that the Board grant the applicant both approvals. Ms. Brown asked if DEP looks at each portion of development cumulatively and would traffic studies be done the same way. Mr. Gould indicated that he presumed that they would look at it overall. As they come in, they are going to be required to provide the Board with all of the information. As staff pointed out to the applicant, one of the risks that they take in doing a project piece by piece is that the City’s standards could change and the property could be rezoned. There is no guarantee that the standards will be the same the next time they apply. Mr. Theeman asked if the same standards for the 20,000 sq. ft. of impervious area will come into play for the remaining undeveloped 8.6 acres. Mr. Gould indicated that the 20,000 sq. ft. is about disturbed area and not a geographic area. Mr. Theeman asked if the 20,000 sq. ft. is considered all over again when the remaining portion of the property is developed. Mr. Gould said that he believed that it will but he would defer that question to Mr. Marshall. Mr. Gould noted that in many instances an applicant will make an application for a project that will be just under a DEP threshold. It may be a subdivision of 19 acres because the do not have to go to DEP, it may be a project that the disturbance is just under 20,000 sq. ft. because the requirements, if they go over that threshold, change drastically and they are trying to stay out of that permitting realm. This happens frequently. Mr. Rosenblatt asked if there will be five acres actually allocated to these two units. Mr. Gould indicated that without taking the lot out there is 13 acres that are allowed for the two units. There is no a specific acreage to these units but the acreage of the development parcel overall. There has to be at lease five acres to be eligible. Mr. Rosenblatt asked if this project would take five acres out of action with respect to future development and what the density standard is controlled by. Mr. Gould said that he suspects that applicant will want to build more buildings within those 5 acres or 13 acres. The density standard is controlled by the standard in the District of 5 units per acre. Mr. Rosenblatt noting that there are a lot of lines on the plan and asked if applicant was asking for subdivision approval. Mr. Gould indicated that he did not believe that they are seeking any subdivision approval. Mr. Theeman asked if they are going to meet the DEP 20,000 sq. ft. requirement anyway, why do this now. Mr. Marshall indicated that it is a matter of timing in seeing where the market is. Because the City of Bangor doesn’t have any provision in the subdivision code or land development code for phasing, often times an applicant will get approval of as much or as little as he/she expects to build. If it isn’t built within the time period, the permit expires this is a disincentive to do a big project unless you know you are going to be able to carry that out within the time period of the Land Development Code. The other aspect and the driving factor is the DEP stormwater rules. The next threshold is to go for a full blown stormwater permit and 7 ultimately a application for a Site Location of Development Permit which is much more lengthy, much more costly and time intensive process. The process is an investment decision as to where to start and how far to go with the initial phase. Mr. Theeman asked if the elevation of this property is higher than the abutting property (Mr. Brountas’ property) on the other side of the stream. Mr. Marshall indicated that it is higher than Mr. Brountas’ property. They have a stormwater permit from DEP that they feel that as it is designed it meets all of their criteria. There shouldn’t be any increase in runoff to Mr. Brountas’ land. Ms. Brown explained that the DEP and the stormwater best management practices are really out there to protect the abutter and in that, they are going to look at any build out that they do of the project. The Board has to have some confidence that if they think that there is going to be adverse affects both DEP and Mr. Ring are not going to let the project go forward. Mr. Barnes indicated that Mr. Brountas made some very important points. He said that he felt that it makes more sense both for the developer and the City to deal with the whole parcel rather than just this small piece. Chairman Guerette indicated that at face value that concept makes sense to him. Noting the exhaustive review of the Comprehensive Plan and the fall out from that there is a long list of things that the Board wants to accomplish in the next few years in terms of making changes to the Code and identifying certain green areas of the city to dealing with issues like sidewalks and street control in subdivisions, etc. This concept of controlling or regulating the phasing or the approval of projects in phases has never really come to the forefront. It is totally unregulated today and it is not unusual for projects to come before the Board in phases for many different reasons. People who are going to develop a large parcel of land want to have a phase to it and want to create something that is visible and marketable in order to get the project off the ground. When you look at both sides of the issue there are some compelling arguments for each, Chairman Guerette suggested that this issue may be something to address at a later time. However, it is not in the Board’s purview to create these regulations for this specific project. Mr. Gould indicated that the Chairman is correct in that there is no specific language within the Land Development Code that provides a methodology for someone to come to the City and do a project in phases. There was the Walden Parke project which had two phases involved but there is no specific, clear language within the Land Development Code to deal with this. Even if there were such language there would be nothing in the Code that would prohibit an applicant or a landowner from coming in and proposing a project on a portion of their property. The Board needs to deal with what is in front of them and it cannot dictate that a property owner cannot develop a small portion of their property if it is consistent with the Land Development Code standards. Ms. Brown said that she felt that Mr. Marshall should be commended for telling the Board that the applicant plans to do more with this property. If he had not said this the Board would not have had this discussion. 8 Mr. Wheeler said that everything that he wanted to address had already been covered and said that he was appreciative of the fact that they were given that information. Mr. Wheeler indicated that he was fully sympathetic to Mr. Brountas’ concerns because every homeowner wants to know what will happen to the area surrounding his home. But in this instance, the Board does not have much choice except to play the cards they are dealt as they do not have the authority to dictate how a project shall be developed except through existing codes and environmental protection standards. Mr. Brountas asked if the project was being pushed forward in order to avoid the imposition upon this project of the impaired watershed standards and if so, if this would be harmful to the abutting property owners. Mr. Gould indicated that the Penjajawoc Stream and Meadowbrook Stream are deemed impaired watersheds and there is nothing that this Board is going to do to change this. All of the projects that occur within that watershed have to meet certain DEP Stormwater Rules. The DEP in developing the regulations as the City does, sets thresholds from which certain standards apply. 20,000 sq. ft. is one of the threshold standards that the DEP has set such that you can apply for a Permit by Rule to get your stormwater permitting. The DEP has done that the same way the City says if you build a single-family house you do not have to come to the planning Board for review. That is not to say that something in that construction would be adverse to neighbors but generally it isn’t and it doesn’t seem to warrant that level of review. That is the decision that the DEP has made relative to the stormwater permitting series of thresholds. Different things happen at different levels and that is one of the standards that they have set. Chairman Guerette offered Mr. Marshall the opportunity for closing comments. Mr. Marshall indicated that he understood Mr. Brountas concerns. He said that the different thresholds of the urban impaired stream watershed is a special designation under DEP stormwater rules. Mr. Marshall explained that if this was not in an urban impaired watershed they could develop up to an acre of impervious surface with a Permit by Rule which means that you have to meet certain thresholds and basic best management practices. The next phase is a full Stormwater Permit where there are stricter rules and standards to be met. In reality the larger the project the stricter the control is. The DEP will go back and count this first phase as part of the development. This first phase has been designed to meet the long-term rules (the most strict) to make sure that if the project goes forward into something larger that they would not have to go back and dig everything back up again and put some new treatment system in. For DEP there is a Permit by Rule which is 20,000 sq. ft. of impervious surface in an urban impaired watershed and the next threshold is up just short of 3 acres of impervious surface and once your go over 3 acres you into the Site Location of Development Act Permit process. He noted that it was not Ms. Sites intention to be detrimental to the abutting property. Mr. Rosenblatt asked if this phasing approach would enable the developer to circumvent any regulations that would have had to have been applied if the whole plan had been presented. Mr. Marshall said that circumvent was a strong word and said that they are meeting all of the standards. Mr. Marshall indicated that if they tried to pass this off and divided it up 9 into separate parcels and say that they were going to treat each little 20,000 sq. ft. as a separate entity and say that we are going to do a Permit by Rule that would be circumventing. The applicant is doing this by the rules. Mr. Theeman in recognizing Mr. Brountas’ concerns and the fact that the Board will see this applicant on this project again, encouraged Mr. Marshall and the applicant to meet with Mr. Brountas to address his concerns prior to coming back before the Planning Board. Chairman Guerette asked for a motion. Mr. Rosenblatt moved to grant conditional use approval to the proposed development at 745V and 785 Mt. Hope Avenue – Sites Realty – Julie B. Sites, applicant. Mr. Theeman seconded the motion. The Board voted 5 to 0 in favor. Mr. Rosenblatt moved to grant Site Development Plan approval to the proposed development at 745V and 785 Mt. Hope Avenue – Sites Realty – Julie B. Sites, applicant. Mr. Theeman seconded the motion which passed unanimously. Item No. 3: Conditional Use/Site Development Plan approval for an outdoor recreational area for a paint ball field located at 48 School Street in a Shopping & Personal Service District. Splatz ESG, LLC, applicant. Chairman Guerette opened the Public Hearing and asked for a presentation by the applicant or its representative. Mr. Jim Kiser, Kiser & Kiser Co., represented the applicant and explained that the request before the Board is for Conditional Use and Site Development approvals for a paint ball field located behind their present retail facility at 48 School Street. The project is going to clear vegetation from an 80’ x 175’ area with posts and netting installed around the field area to be utilized as a paint ball field. Within that area there will also be some mobile barricades for protection during the paint ball battles that they have on the site. It is a fairly low impact development. There isn’t any residential development in the area at the current time and the closest residential development is 700 to 800 feet away. The applicant is proposing to use existing vegetation on-site to provide buffering from abutting commercial properties on the adjacent street. Mr. Kiser indicated that the applicant is proposing to convert the wooded brush area over to a grassed turf paintball field. Chairman Guerette asked if the proposed netting will totally enclose the area even at ground level and be sufficient to contain the paint balls from flying outside of this arena. Mr. Kiser indicated that it was his understanding that the mesh on the netting is small enough that it will contain the paintballs. If they do miss their target and hit the netting it will break the balls as they are propelled. The area will be totally enclosed with the exception of the top. Mr. Rosenblatt asked if there was any lighting proposed or a sound system associated with this. Mr. Kiser indicated that there was no lighting proposed as this would be a daylight operation and any noise would be associated with the players involved. Most of the activities and tournaments that they have occur on the weekends. Mr. Theeman asked what the contiguous property is. Mr. Kiser indicated that to the rear of the property is wooded and vegetated. The westerly side of the property abutting the 10 commercial development has less vegetation but they feel it has adequate buffering for the type D buffer that would be required in that area. Mr. Wheeler asked what would be the timeframe for this type of operation. Mr. Kiser said that the timeframe would open as soon as the ground thaws in the spring and close sometime in November or December depending on the weather. No one spoke either in favor of or in opposition to this request. Chairman Guerette closed the Public Hearing and asked for comments from Staff. Planning Officer Gould indicated that this application is for conditional use and site development plan approval for a fenced in outdoor recreational area for paint ball games. The Board may recall the use of outdoor recreation was added into several of the City’s District three or four years ago. Also, the Board reviewed a similar application for an outdoor golf driving range. A lot of the standards that are geared toward outdoor recreation is to protect abutting residential property owners. This development does not abut any residential properties. The next lot over is the City Nursery property located off of Grandview Avenue. The other properties along School Street are all commercial properties. Mr. Gould explained that this use is a conditional use within the Shopping and Personal Service District. Staff finds that this application meets the buffer standards in terms of setbacks from residential buildings, the specific standards regarding light and noise impacts as no outdoor lighting is proposed for the outdoor recreation area nor is any sound amplification proposed in the paintball field. The applicant has provided a lease that runs with the Shopping Center owner that provides for their use of the field plus a small amount of additional area around the field. Also, there is language in the lease that talks about the owner of the property being required to leave the existing vegetation such that it can provide a buffer to adjacent properties. Staff does not feel that this will generate any more traffic than the existing operation. There is adequate parking at the existing facility, the fence enclosure will maintain the activity within the field, and there are no new buildings to review. The applicant is proposing to clear an area that presently exists behind the building. Planning Officer Gould indicated that Staff did not feel there would be any adverse impacts relative to this use and recommended that the Board grant Conditional Use Approval and Site Development Plan approval for the plan as presented. Mr. Clark commented that this proposal could be something that could give people something different to do and if it maintained properly and no one gets hurt felt that it would be a good thing for fun. Chairman Guerette asked for a motion. Mr. Rosenblatt moved to grant conditional use approval to the proposed project at 48 School Street for Splatz ESG, LLC, applicant. Mr. Theeman seconded the motion and the motion passed unanimously. Mr. Rosenblatt moved to grant Site Development Plan approval for the proposed development at 48 School Street for Splatz ESG, LLC, applicant. Mr. Theeman seconded the motion which also passed unanimously. 11 Item No. 4: To amend the Land Development Code by changing parts of parcels of land located at 758 Broadway from Low Density Residential District to Contract Low Density Residential District and from Contract Low Density Residential District to Contract High Density Residential District. Said parts of parcels containing approximately 3.1 acres. Ken Bowden, First Atlantic Corporation, applicant. C.0. # 06-310. Mr. Theeman indicated that he had a conflict of interest as Ross Care which is a partner of applicant, and his company, Affiliated Healthcare Systems are both sister corporations of Eastern Maine Healthcare Systems. His company provides a variety of contractual services to Ross Care. Mr. Rosenblatt moved that the Board determine that Mr. Theeman has a conflict and should be recused. Mr. Clark seconded the motion. which passed by a vote of 4 to 0. Associate Member Brown was asked to vote. Chairman Guerette opened the Public Hearing and asked for a presentation by the applicant or its representative. Mr. Steve Ribble, Landscape Architect with Ames A/E, representing First Atlantic Corporation who is a partner with Ross Care Associates owners of the Ross Manor Nursing Facility at the corner of Husson Avenue and Broadway. The applicant is requesting a contract zone change on a portion of the property. The current zoning is Contract Low Density Residential and Low Density Residential and the applicant would like that to change that to Contract High Density Residential and Contract Low Density Residential. This project is a very complex and difficult one. They have been working it for about a year and a half and have met with City Staff several times. The property consists of several contract zones as well as straight zoning and presently has four different sets of Ordinance requirements should this property be improved. It is the applicant’s intention that this request reduce that level of complexity whereby the owner can build out the site to the extent allowable by ordinance while in keeping with the Low Density Residential developmental standards that are currently in place. The owner intends to put a 40-unit assisted living wing on the end of the existing Ross Manor facility. Mr. Ribble indicated that they have held an open meeting with the local residents to inform them of their plans and to understand the neighbors concerns to incorporate them into its planning. One concern that came up which is the same that Staff had is the maintenance of an existing no-build buffer area consisting of approximately 1.29 acres. It is the applicant’s intention to maintain that in its present condition and/or maintain it in a dense vegetative state that would inhibit visual access between the Low Density Residential neighborhood on Grandview Avenue and any activities that may going on on this site. Mr. Ribble said he felt that the proposed contract conditions address all of the concerns in an effective manner and that this proposal is consistent with the 2005 Comprehensive Plan and Zoning Policy. He said that it protects the low density nature of the Grandview Avenue neighborhood as well as allows the owner to create a unique healthcare environment by providing the assisted living aspect that will be an asset to Bangor. Mr. Rosenblatt asked what the current contract conditions were on the Low Density Residential area. Mr. Ribble indicated that the current conditions are that a permanent five foot high wooden fence will be erected and maintained along the line dividing the proposed R-3 12 zone change and the Remaining R-1 area and that construction of primary use structures would be prohibited on a portion of the property on the other side of that fence. Mr. Rosenblatt asked if the contract conditions proposed for HDR Contract would maintain the LDR development standards. Mr. Ribble explained that they are proposing developmental standards that match the LDR ordinance standards. There are two reasons why they are requesting this change. One is that Low Density Residential allows a nursing facility but it does not allow an assisted living facility. It is the applicant’s plan that this facility, because it is a wing of the nursing facility, will act as a nursing facility and also serve as an elderly facility. Because it is a low impact residential use and they feel that it is consistent with the intent of Low Density Residential so they are asking for this to be changed Contract HDR which will allow congregate and assisted living use. The other items is that when the initial contract was written it was in error and the way the contract was written the triangle (buffer) is not a no build area. There was reference to a graphic representation of the area and a reference to Exhibit A which was a surveyor’s description of the property in metes and bounds as it related to the one piece. There was a graphic related to in the document that was referred to in error. This proposal is an attempt to correct this so that the buffer is maintained as it was intended while at the same time allowing the applicant to develop it in a manor that is consistent with the area. Chairman Guerette asked if the vegetative buffer is to be located in part or in whole in what is now known as the LDR triangle at the top of this parcel. Mr. Ribble indicated that that is correct. At this point it is primarily vegetated but it is their intention that should vegetation succumb that it be replaced such that that visual screen is maintained. Mr. Ribble indicated that when they met with the adjacent land owners one of their concerns was being able to see the building. They were worried about it blocking their views as Grandview Avenue is elevated above the more densely developed areas of Broadway and affords a view. Mr. Ribble added that it is in the applicant’s best interest to maintain this because this is quite an amenity. Most of these places don’t have the luxury of having these vegetative buffers As there were no proponents or opponents, Chairman Guerette closed the Public Hearing and asked for comments from Staff. Planning Officer Gould indicated that this is a request for a contract rezoning for property located off of Husson Avenue totaling 3.1 acres of land by First Atlantic Corp. This property has a long history relative to zoning and rezoning such that if one sits down and tries to figure out what one can do on any certain piece of real estate out there between Ross Manor and its adjacent properties it becomes a day long process to sort out the varying different contracts and which ones control which property. It all started back in the late 1980’s with a proposal to develop a High Density area on the front part of Husson Avenue which is now Zoned Contract Shopping and Personal Service District. In order to make their project work they proposed that there would be a fence built at the boundary adjoining the single-family zone (Grandview Avenue). This original concept was that they were going to give the land to some of the property owners in the Grandview Avenue area. When it was determined that this was not a good idea, they amended the language of the contract to say that the land would be forever undeveloped. The problem that Staff saw with that years later was that technically the contract conditions never ran with that property. However, this was understood and was never developed. Subsequent to that, the Ross Manor Nursing Home was built, the proposed residential development never occurred, and the Norumbega Medical facility was built. Ross Care came to the City asking what the potential was to expand. One concern 13 that Staff had and was that there was the intent to provide a buffer and protection for the single-family residents on Grandview Avenue. Staff felt that this was an opportunity to improve the zoning that was in that area and sort out some of the confusing details in the multiple contracts that are recorded. Presently a nursing home is a use that is a conditional use and allowed in the LDR district, but the congregate care/assisted living facility is only provided for in HDR. What the applicant has come up with is a high density residential district such that they can have the assisted living facility but apply to it the low density residential development standards that would apply if it were developed for nursing home beds. At the same time the LDR portion that has always been a buffer but never contractually controlled would now be brought in under the contract to say that this land needs to be protected by a buffer in a binding contract. The real issues that it comes down to is, is assisted and congregate care of equal impact as nursing home beds. Clearly, the Land Development Code says that Low Density Residential is an appropriate location under conditional use review for nursing home beds but assisted living and congregate care is an High Density Residential Use. What the applicant is proposing here is High Density Residential zoning to allow those two uses but proposing Low Density Residential development standards LDR District such that the impact in terms of impervious surface, parking lot, lot coverage would be the same as if it was used as nursing beds. The Ross Care Manor is a mix of different types of uses already. Staff found that this is consistent with the City’s Land Use Policy and Zoning Policy and recommended that the Board make a positive recommendation to the City Council. Chairman Guerette asked for a motion. Ms. Brown moved to recommend to the City Council that the Land Development Code be amended by changing parts of parcels land located at 758 Broadway from Low Density Residential District to Contract Low Density Residential District and from Contract Low Density Residential District to Contract High Density Residential District. Said parts of parcels containing approximately 3.1 acres. Ken Bowden, First Atlantic Corporation, applicant. C.O. # 06-310. Mr. Barnes seconded the motion. Mr. Wheeler indicated that he hoped that the word goes forth that the Planning Office goes the extra mile to find a way and he appreciated it. The Board voted five in favor and none opposed to recommend approval of C.O. # 06-310. Item No. 5: Conditional Use, Site Development Plan, and Site Location of Development Modification approvals to construct a rotating airport beacon light on a high mast pole off Cleveland Street adjacent to Maine Business Enterprise Park at Bangor International Airport in the Government & Institutional District. City of Bangor, applicant. Mr. Gould noted that on item No. 5, the City had not yet received delegated authority to review the Site Location of Development Modification and that this would need to be continued to the next regular meeting. Chairman Guerette opened the Public Hearing and asked for a motion to continue this item to the next meeting. Mr. Wheeler moved to continue this to the next meeting. Mr. Clark seconded the motion which carried unanimously. 14 APPROVAL OF MINUTES Item No. 6: Planning Board Approval of Minutes. This item was continued to the next meeting as there were no minutes for Planning Board Approval. NEW BUSINESS Item No. 7: Site Development Plan approval to construct a 91-room, 4-story hotel located at 200 Sylvan Road in a General Commercial and Service District. Peter Anastos, applicant. Chairman Guerette asked for the applicant to make a presentation. Maureen McGlone (SP) with Gorrill Palmer Consulting Engineers represented the applicant. Peter Anastos and Sean Reilly from Main Course Hospitality Group were also present at the meeting. Ms. McGlone indicated that the proposal is for Courtyard Marriott which is a four-story, high-rise hotel to be located on Sylvan Road adjacent to the existing Osram facility. The hotel is on a 16 acre parcel which is cut out of the 36 acre parcel previously owned by Sylvania. The hotel itself will be serviced by public water and sewer. The sewer will be extended from a manhole located in front of Darlings. As part of a post closing agreement with the current property owner the applicant is going to tie into that sewer extension that will be built by others. There has been a request made to the City Council for an extension of the sewer. Electricity will be provided by Bangor Hydro. The proposed 120 parking spaces meet the City’s standard. There is a significant wetland on this site and this proposal will not encroach upon nor do they plan to fill any of the wetland with this project. The parking lots will drain to a bio retention cell which will serve as a filter prior to discharge. In addition, there is a vegetated underdrain which is adjacent to Sylvan Road. To the rear they propose two level spreaders, one of which will take some parking lot runoff and this will allow it to come out at a much slower rate across an existing vegetated area that will remain vegetated and will be used as a buffer to filter out any impurities and slow the water down prior to getting to the wetlands. The second level spreader will take the roof runoff. Ms. McGlone indicated that the applicant has applied for a DEP Stormwater Permit. Currently under the new rules it requires them to have treatment for their impervious surfaces and there will be erosion control measures in place during construction which is also required by the DEP permit. Mr. Clark asked if the Sylvania building would remain, where the hotel will be located and if they proposed a restaurant. Ms. McGlone indicated that the proposed hotel will be adjacent to the existing Osram building and there will be a breakfast nook for the hotel guests. Mr. Rosenblatt asked what the peak traffic counts are and noted that the Staff memorandum indicated that the landscape plan needs to be made consistent with the Site Development Plan. Ms McGlone indicated that people from her office have done a traffic analysis. Because of the size of this project it does not require an MDOT Traffic Movement Permit the counts are under the threshold. The landscape plan was amended and forwarded to the Planning Office. 15 Planning Officer Gould noted that the amended landscape plan had been received but there were still a few minor issues that needed to be addressed. Chairman Guerette asked if the large area of land behind the proposed hotel and between the residences on Saratoga Avenue was developable and if there was any thought as to what might eventually occur there. Ms. McGlone indicated that there is portion of the land that is outside of the wetland that technically is developable. At this point they have no plans for developing it. Mr. Peter Anastos, the applicant, indicated that someday he would like to develop this extra land. He said that it is their intent to build this hotel now and added that often times they have added restaurants in front of their hotels. They have no plans for a restaurant now but if someone were to express interest they would certainly entertain it. He indicated that they also own the Ground Round and the Muddy Rudder and they like the Bangor market. Mr. Wheeler asked about the term high rise. Ms. McGlone said that this was something that was suggested because of the height of the hotel and its use in the Ordinance. Ms. Brown asked the applicant to discuss the bio retention cell and how this works. Ms. McGlone indicated that it is one of the BMP’s that DEP is putting some emphasis on. The advantage to the bio cell is that it affords an opportunity to filter some of the impurities that come down through rather than just pass them along. In addition, it helps with some thermal pollution in this particular watershed (the Penjajawoc), which is an urban impaired stream, and also has some cold water fisheries issues. In this area the goal is to try and infiltrate the surface water. The BMP standards with the bio filter there is an underdrain underneath so that the water comes down through it, gets filtered through a soil media that has been prescribed by DEP, and gets filtered through that soil media. There is a slight depression on the top and the roots of the vegetation will pick up and use some of that water. The bio cell is intended to treat one inch of surface runoff of an impervious surface and .4 inches off a landscaped area. Chairman Guerette asked for comments from Staff. Planning Officer Gould indicated that the application is essentially in order. A high rise hotel is a permitted use in the General Commercial and Service District which allows the building to be taller. This one does come within the 60 foot height limit and is proposed to be approximately 53 feet in height. One of the nice features of the bio retention cell is that it adds green space into parking lots which is something that the City likes to see as often as they can to break up asphalt surfaces. Mr. Gould explained that this application is for a 91 room hotel. The Land Development Code calls for one parking space per room and they propose 120 spaces. This development has had to jump through extra hurdles because it is located within an urban impaired watershed to make sure that when stormwater leaves the property it is generally cleaner than is in the Penjajawoc to start with. Mr. Gould indicated that one of the details Staff pointed out in the memorandum as a condition is that site presently does not have sewer service. There is sewer service located 16 down Sylvan Road and the applicant’s purchase and sale agreement of the property would have the seller provide a sewer extension to the hotel. Staff indicated that the applicant could put within their site plan all of the details to extend the sewer and there would not be an issue. Here, there is a separate applicant who is going to petition the City to extend the sewer. This is not a problem as long as the sewer gets there before the building gets built. Staff recommended that the Board attach a condition that no building permit be issued until the City Council authorizes the extension of the sewer. Staff did note that this applicant hired a landscape architect to do their plan. A revised plan was submitted prior to the meeting but there were still some landscape materials that are in Sylvan Road, and there were still some evergreen trees that Staff would like to be changed to deciduous trees. Planning Officer Gould indicated that Staff would recommend that the Board grant approval with the two conditions as outlined in the Staff Memorandum. Chairman Guerette then asked for a motion. Mr. Clark moved to approve the site development for 200 Sylvan Road for Peter Anastos to construct a 91-room, four-story high rise hotel in a General Commercial and Service District with the conditions that no building permit is issued until the City Council authorizes the extension of the sewer line to serve this property and that the landscape plan is consistent with the site development plan. Mr. Wheeler seconded the motion. The Board five in favor and none opposed to the motion. Item No. 8: Final Subdivision Plan approval for a 2-lot commercial subdivision located off Haskell Road in a General Commercial and Service District. Webber Oil Company, applicant. Chairman Guerette asked for a presentation from the applicant or its representative. Mr. John McCormack, P.E. with CES, Inc., represented the applicant. Mr. McCormack indicated that when the applicant went before the Board at its last meeting for preliminary plan approval of this two-lot subdivision located off Haskell Road they followed this meeting up with several meetings with Staff. Following those meetings they came up with a list of items Staff wanted included in the Final Subdivision Plan that included clarification on the open space, some additional details on the stormwater systems and traffic. Mr. McCormack indicated that the stormwater system includes the under drain soil filter bio retention cells which will handle the stormwater the proposed road and their traffic consultant provided a report which detailed the impact that this subdivision would have. Mr. McCormack indicated that the final plan also included clarification on the open space. Ms. Brown indicated that she had several questions regarding the profile plans for the proposed drainage swale, the notation of the soil filter, why the stationing did not start right at the beginning of the roadway, and where the existing pavement ended. Mr. McCormack indicated that those plans and profiles had been revised to address these housekeeping comments noting that the pavement ends at the existing cul-de-sac by the Hyundai Building and their stationing started at the property line instead of the where the pavement ends. Mr. Rosenblatt had questions regarding the open space, if it included the detention pond, if the detention pond is currently existing, how much area is within the open space that is not within the detention pond and who will be responsible for the open space. Mr. McCormack 17 indicated that the total open space is approximately 2.3 acres and that the detention pond that is in there now is associated with the parking lot from Sam’s Club. There is an easement that specifies that Sam’s has the responsibility for maintenance. Chairman Guerette asked for comments from Staff. Mr. Gould indicated that this is a Final Subdivision Plan for a two-lot commercial subdivision which is the extension of Haskell Road and lies within the General Commercial and Service District. This was before the Board on August 15, 2006 for preliminary plan review. At that time there were a number of details that Staff wanted the applicant to clarify on the plan prior to submission of the Final Plan to detail the pins, for details regarding the open space and maintenance of the open space, and the stormwater details. Mr. Gould said that what is somewhat unique about this application is that it is a fairly extensive roadway expansion that results in only two additional lots being approved. One of the lots is a one and a quarter acre parcel which is designated for use as a public utility or public service use. This is a land use category that is within the General Commercial and Service District which provides for certain public utilities that doesn’t require them to set aside a full lot and provides for a smaller area. The other parcel is a five acre parcel that would be the other parcel that would be approved within this subdivision. All of the other remaining lands of the applicant would not be approved for development unless they came back to the Board for another approval of an additional lot or all of the remaining part. This is a plan to deal with certain State thresholds in terms of development review where they were able to build their roadway under certain DEP thresholds. The applicant is still going to need to post improvement guarantees for the cost of the roadway and utility extensions. Within 120 days of the Board’s approval they will need to provide a cost estimate and improvement guarantee to cover those costs. Staff feels it meets all of the standards of the LDC in terms of final subdivision plan approval. Mr. Theeman asked if the five acre lot designated and Lot 4 could be further subdivided. Mr. Gould said that it could be but they would have to come back before the Board. Mr. Rosenblatt asked if Staff was comfortable with the arrangements for who is going to take care of the open space. Mr. Gould indicated that part of the open space is that Sam’s Club detention pond and the remaining part will be maintained by Webber Oil Co. The same question came up with the bio retention cells and these will have to be retained and maintained by Webber Oil Co. Mr. Rosenblatt indicated that it was his impression that they were not taking a favorable view of detention ponds being open space and asked how this came about. Mr. Gould explained that the concept of detention ponds not being open space is actually something that came out of the Marsh Mall Committee. In the Overlay District they clearly wrote in their language that within the Overlay District, which this property is not within, detention ponds will not count as open space. You can have detention ponds in the open space but you cannot count that area towards your open space obligation. Mr. Rosenblatt asked if the owner wanted to develop the remaining land, if it is Staff’s position that they would need to get subdivision approval to do that. Mr. Gould explained that the remaining land is not a lot that is approved for development or sale. If they sell off two lots and wait five years they would come outside of subdivision regulations but within that time span it would be creation of another parcel. Mr. Rosenblatt asked what precludes the development 18 of the remaining land. Mr. Gould indicated that if the Board wants to it could add a condition that the remaining land cannot be developed without obtaining Board approval. It is Staff’s interpretation that the numbered lots are those lots that are eligible for sale or development. If it is an unnumbered lot or remaining land it is not an approved lot in a subdivision. Mr. Rosenblatt asked if the applicant had any objection to having a note on the plan that the remaining land cannot be developed without addition approval. Mr. McCormack indicated that knowing that they have to come back to the Board if they do anything beyond what they are seeking approval of he did not see the need for that note. Ms. Brown indicated that in terms of a title search, if someone wanted to put something on that lot and were going for financing it would be a trigger as there is a note on the plan that there is remaining land and not buildable until they come back for approval. Mr. Rosenblatt indicated that he was not as comfortable with that because it is not clear to him that the owner would be precluded from coming and making an application for development. Chairman Guerette said that he shared some of the same concerns but if it is understood by everyone that a further application would be required in order to building on those lots he did not see any reason for not including that in the motion. Mr. Theeman asked the Planning Officer to explain the five year rule. Mr. Gould indicated that this is the basis for the State’s Subdivision Law that says that a subdivision is the creation of three or more parcels in a five year period. One way one can avoid a subdivision is to let the five years lapse as you create a new parcel. Another example would be the Stillwater Gardens Development. It has expanded many times well over the DEP threshold but it has happened since 1985 such that incrementally they have never had to get site location approval for the project because of the timing of the different blocks. Mr. Rosenblatt moved that the Board grant Final Subdivision Plan approval for the proposed subdivision off Haskell Road – Webber Oil Company with the following two conditions: first that an acceptable improvement guarantee be submitted within 120 days of approval and the second condition that the remaining land indicated on the plan not be sold or developed without further subdivision approval. Mr. Wheeler questioned whether or not the Board can build that condition into the motion without first acting on it separately with a motion to attach this condition first. Chairman Guerette noted that in the past the Board has added conditions without the extra layer of approvals. Mr. Wheeler indicated that he did not feel that it was appropriate for the Board to build that condition in unless and until they discussed the condition as a Board separate from the item that is before them verbatim. He said that he would not support this motion with that condition attached unless they have such discussion and unless they have a vote on whether or not to attach that condition. 19 Ms. Brown indicated that note No. 8 on the plan indicates subdivision parcel lots 4, 5 and remaining land so that it clearly states what it is and they cannot develop it unless they get approval from the Board. This is the whole reason for the plan. Mr. Wheeler asked why the Board would need to further add the condition that already exists. Ms. Brown agreed. Planning Officer Gould indicated that it is Staff’s interpretation that unless it is a numbered lot in a subdivision it is not approved for sale or development. Mr. Theeman asked by taking this action if the Board would effectively prohibit the applicant from selling this piece of property without the Board’s permission. Mr. Gould indicated that is not approved for sale or development. The Board discussed at length whether or not the applicant could sell its interest in this lot or develop the remaining land. Mr. Rosenblatt expressed his concern that the remaining land could be developed without further subdivision approval because all of the analysis that has gone on so far in terms of traffic is based on two parcels. Ms. Brown indicated that they are also very clear in their application that the stormwater is only for the roadway. Everything else that will be done in the future needed to be done based on each applicant. Mr. Wheeler moved that the Board approval the Final Subdivision Plan at the end of Haskell Road for a two-lot commercial subdivision for Webber Oil Company, applicant. Mr. Theeman indicated there was already a motion on the table. Chairman Guerette indicated that he would like to allow Mr. Rosenblatt the opportunity to either amend his original motion or withdraw it. Mr. Rosenblatt indicated that he wished to redraw his motion. Mr. Wheeler indicated that the original motion was not seconded and therefore not on the table. He then moved approval of the final subdivision plan at the end of Haskell Road for a two-lot commercial subdivision for Webber Oil Company, applicant. Mr. Wheeler then amended his motion to add the condition that an acceptable improvement guarantee be submitted within 120 days of approval. Mr. Theeman seconded the motion. The Board voted three in favor and two opposed to the motion. Other Business Chairman Guerette indicated that Planning Officer Gould had provided the Board with a draft revision of the Planning Board By-Laws. He said that the Board could entertain some of the business identified on the implementation plan from the Comprehensive Plan on evenings where there were light Planning Board Agenda. He noted that the By-Laws would be one of the first items to be address and encouraged the Members to make an effort to submit any further comments to Mr. Gould by the next Planning Board meeting. 20 Planning Officer Gould indicated that he tried to go back to the Board’s last discussion some 6 to 9 months ago in order to try and capture all of the details discussed about the Consent Agenda and other issues. Mr. Theeman said that he would be interested in the City Solicitor’s opinion about the discussion under Item No. 8 and wondered if the City Solicitor could be asked if the Board had interpreted the issue correctly. Mr. Gould was asked to make this request to the City Solicitor. There being no further items for discussion, the meeting was adjourned at 9:40 p.m.