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HomeMy WebLinkAbout2001-04-03 Planning Board Minutes Planning Board Meeting April 3, 2001 Partial Transcript Conditional Use – Site Development Plan – 688V Stillwater Avenue – Widewater/Stillwater Company, LLC applicant. Richard Fournier: I’d like to start with an opening statement by John Hamer. Assistant City Solicitor Hamer: Thank you. I just want to make a couple of comments before we start this item. I’d like to let everyone know, as I’m sure th most of you know that this item was continued from the March 20 meeting. At that meeting, a public hearing was held and that public hearing has been closed. While this is a public meeting, there will be no public hearing tonight. That means we will not be accepting comments from the public. The purpose for tonight’s meeting was basically to give the Planning Board the opportunity to review all the exhibits that were submitted to them at the last meeting and consider all the materials. Tonight, what they’ll be doing is they will be asking questions of the applicant, discussing applications, the application amongst themselves and finally, they’ll be voting on the application. It’s important to keep in mind that the focus of this Board has to be the ordinances of the City of Bangor because that’s their authority. Their jurisdiction is to review this application under the Land Development Code and the criteria set forth in Chapter 165, Section 114. As you mentioned last time as well, after this meeting, the applicant is still required to go to the state to get their DEP approval for their SLODA and their traffic permits and that’s MDOT. One thing… from the more… I need to mention is that the Board is required to take a vote on an application presented before them within 21 days, therefore they will need to make a vote tonight. Having reminded everyone of that, I’ll turn the meeting back over the chairman. Chair Fournier: Thanks. We have a full Board here. Mrs. Bostwick was not at our previous meeting so I’ll ask her to abstain from this vote and I will ask that Mr. Kreitzer, the alternate, be a voting member tonight on this first issue. Mrs. Bostwick: May I ask questions? Mr. Fournier: Absolutely. My intention here is after we get through our questions, I’ll be going down asking each Board member how they will vote and the reasons why they are voting that way and at that point, I will take a vote. That being said, I will open it up for any questions of anyone that they might have. Mr. Lingley: I guess I’ll go first. At the public hearing, it wasn’t until the end of the public hearing that I was aware that an entity called Three Rivers was also going to be using the detention pond that is going to serve this particular applicant. I guess I should address my question to Katherine. In the study of the adequacy of this pond, it wasn’t clear to me that there was evidence that this pond is designed to serve all of the users in that subdivision, but I guess that’s the intention. Is that correct, Katherine? Katherine Weber, Planning Officer: Yes it is and I would ask Steve Murray, the man from Sewall Engineering to address any specifics on the detention pond capacity. Steve Murray, Sewall Company: Yes, the pond is designed to not only serve the proposed development, the detention pond that now exists which serves Circuit City will become part of the new pond and Circuit City’s run-off will be served by the new pond as well as the proposed development. Was that the question? Mr. Lingley: Yes. One of my concerns deals with the 250 foot buffer the applicant has proposed as part of this application. Specifically, two items of evidence that were presented to us. One in the form of a letter from the Maine Department of Inland Fisheries and one in the form of oral testimony from Judy Jones, Wildlife Ecologist, Maine Audubon. They both felt strongly that the 250 foot buffer zone was a minimum and that there should be no activity that goes on to disturb that area which is a, which is now and should continue to be a nesting area for the birds and that use this bog and this upland area. It’s my further understanding that the application proposes that some portion of the wetland detention, I mean the detention pond be located within that 250 foot buffer zone. Is that hard and fast or can that detention pond be reconfigured so that no portion of it is in the 250 foot zone? Steve Murray, Sewall Company: That may be a better question for the developer himself to address. Kevin Kane – Widewaters Stillwater Company, LLC: Member Lingley, the revised application that is before you tonight reflects the comments that were submitted in a record on our first application. If you remember, at the beginning of our presentation two weeks ago, we suggested that we would have had the bar raised again at that meeting based on our reaction to the first submission. We were told that 250 foot was a necessary buffer. We were not told that the 250 foot buffer couldn’t include the detention basin and our discussions in Augusta led us to believe that the basin could be in the 250 foot buffer. It was only at the meeting after we accomplished the goal of moving the development out of the 250 foot buffer that the bar was raised again. Mr. Lingley: I don’t know who’s raising what bar but I – all I can go on is the testimony that’s presented to us about how significant that buffer zone is and should be. It’s a real concern for me. 2 Kevin Kane: We understand your concern and I can tell you that we continue to work with the state to try and find the most effective way to address the buffer so that it operates in the most efficient manner possible at the conclusion of the project. We had a pre-application meeting with the state this morning or this afternoon. The issue was addressed at that point and we committed that we are going to continue to work with the Department of Inland Fisheries and Wildlife and the DEP to find the correct solution toward the mitigation necessary to make that buffer effective. Mr. Burgoyne: As I remember it, basically the detention pond doesn’t run parallel to the stream. How much are we talking about? How many feet…if they did it a 250 foot buffer, how many feet of the detention pond would be kind of jutting out into it? I don’t have any idea. Kevin Kane: The best way to answer that question, Mr. Burgoyne is the closest intrusion of the developed area which we will call, in effect, a parking lot, is no closer at any point than 250 feet. As you know, the Penjajawoc is not a straight recto-linear line, so we were…our ability to create the buffer was defined by the minimum distance necessary to keep the entire development outside that 250 foot zone. We then charged our engineers with coming up with the most efficient detention basin that would address all of the concerns, not the least of which includes shadowing water temperature, water quality and quantity questions, and it resulted in the design that we have in front of you. I can’t tell, empirically where the line is because again, the 250 foot line is so irregular but that it’s fair to say a good portion of that basin sits within that buffer zone. And, again, it had been our understanding that was an acceptable intrusion because it’s a natural feature, is not paved, it will revegetate and will not be an impediment to that area operating and functioning as a buffer zone. Again, it goes back to my comment about the bar being raised. We’ve taken the building 380 feet away from the closest point. We’ve taken the edge of pavement average 305 feet away from the edge of the buffer. I’m sorry, from the edge of the wetland. I’m suggesting to you again, tonight, that if we were able to move the basin out, we will be charged with a new charge or suggest that a new level of separation that we will need to include in our site plan. It’s…We can’t seem to get there. Every time we get to the new threshold, it gets moved. Mr. Costlow: Mr. Kane, do you have exhibit 2 in your possession? Mr. Kane: I don’t have it in my hands right here and now, Mr…. Mr. Costlow: Let me read for you from the Department of Inland Fish and Wildlife Service dated July 10, 2000, which in fact was an exhibit which you yourself submitted in support of your application, in which paragraph 2 and I’ll read to you specifically from that document… “if left intact the uplands within 250 feet of the wetland edge helped to screen disturbances to both upland and wetland areas and provide habitat capable of supporting nesting…” Sir, as I 3 understand that document, the Department of Fish and Wildlife Service, is telling you that they need nesting area which I hope you will agree is not a holding pond and the words, “left intact” certainly implies to me no disturbance. So, I don’t know how you state that you were not apprised that this area was…that somehow you believe this holding pond could be contained in that 250 foot area when the very letter that you’ve submitted in support states that the area left intact was the recommendation that was given to you July 10, 2000. Mr. Kane: From the direct discussions that happened in Augusta, we came to that conclusion. Mr. Costlow: They’re not before this board. I mean, we can only rely on the evidence that’s submitted. We don’t have a copy of those discussions and they are not part of the record. Our record, that we have to base our decision on, says the area if left intact and there’s nothing else in the record, and tonight’s comments are not evidence for the board to consider, particularly something that is being related to us second hand. Mr. Kane: I appreciate the distinction that you’re making Mr. Costlow but understand that that is part of the process that we, as the applicant, are necessarily going to go through with the state. It will follow the site plan approval process, the conditional use permit process and the subdivision process and we can not escape or avoid the necessity to resolve those differences between us and the state by a determination reached by this board. Unknown: Mr. Chair, can I ask a question of staff? Kate, I know in the past we’ve had a number of developments with detention ponds. Have we ever had them abutting up against the setback? Is there some pattern or some case ruling on this. I can’t remember, I don’t know. I was hoping maybe somebody does. Katherine Weber, Planning Officer: When you say the setback, are you talking about the setback from the edge of a wetland? Which setback are you referring to? Unknown: Basically, I’m looking for any instance where a…where we’ve had a setback requirement and the development included a detention pond physically within that space somewhere. I’m trying to think and I can’t remember that we have. Katherine Weber: If you’re talking about a setback, as in the City’s requirement for a setback in the shoreland zoning, no, detention ponds are not in the 75 foot setback adjacent to a wetland. Unknown: Okay. Thank you. Mr. Fournier: Any other questions? 4 Unknown: Actually, I do have one more. Not related to the pond specifically. I’m kind of curious. What are the plans for removing snow during the winter? Mr. Kane: I think the plans show where snow storage is anticipated I would ask Steve Murray to talk to the specifics of that. I can’t tell you. Could I go back to one point though, following on your question, Mr. Chairman? I think there’s a point of information that’s important to remind the board. That the current zoning in place is stream protection. The current setback under your ordinance is 50 feet. The current re-zoning that is in front of the City Council is resource protection. The proposed re-zoning setback line is 75 feet. The 250-foot th letter…the reference in INFW’s letter of July 10 is a recommendation and is the basis of our discussions with the state. Unknown: I think all the board members are fully aware. Unknown: Steve, if you could answer the question on snow storage? PEOPLE SPEAKING AT ONCE AND BACKGROUND NOISE Unknown: Do you have any idea, I’m trying to get a sense of scale of how close that is to the…I understand the stream moves around a little bit… Unknown: I’m sorry I can’t hear. Unknown: 290 feet from the stream. Unknown: Okay. Thank you. Unknown: Any other questions? Not seeing any questions…George? Mr. Burgoyne: I have another question, I’m sorry. Could I ask Mr. Murray a question relating to oil and gasoline capture in the detention pond. Jeff Allen, Sewall Company: Oil and gas will be removed in a couple of different areas. The City has required all of the catch basins to have traps on them so the oil and grease will accumulate on the top of those and any water will flow out underneath the trap. Should any get by the trap, we’ve designed a baffle that runs across the wet pond that would trap water, again, with an underflow situation. Should any get by that, we have a third system. The outflow structure for the pond also has a submerged inlet so certainly all of that should be trapped within the pond. The pond is also designed to allow a gueos conditions so that any oil would be able to rise to the surface and be skimmed off if it is an appreciable quantity. Bostwick: That’s how you clean it off, you skim it? 5 Mr. Allen: Yes. Bostwick: And out of the catch basins, too? Mr. Allen: Yes. We have a maintenance plan scheduled to go in periodically and remove any sort of floating debris – Styrofoam cups that get in there and other debris of that sort. Unknown: Debris, also oil? Mr. Allen: Yes. They are pumped out. There is also, below where they come out, there is a two foot deep sump so any sort of parking lot sand that accumulated in there can not be carried through the whole collection system. Those do require periodical maintenance. Unknown: Thank you. Fournier: Any other questions? Again, I’ll ask staff for their comments. Maybe its a reiteration from what we had two weeks ago, but if we could get staff comments that would be great. Katherine Weber – City of Bangor Planning Officer: As you know, you need to act on the site plan and the conditional uses. Under the site plan approval standards in our ordinance in section 165-114 of the Land Development Code, there are eleven standards for which this application and all site plan applications are reviewed. To summarize those eleven standards, they deal with:  Off-street parking and loading  access drives  stormwater drainage and the impacts on the adjacent properties as well as the site  location of any outdoor displays  screening and visual impacts of the project  landscaping  location of the building in terms of the area and the features adjacent to it,  effects on the scenic and natural environment and historic sites  If it is situated within 250’ of a wetland, how that the project cannot adversely affect the shoreline of the wetland In addition, because this is two conditional uses being considered, there are two special conditions under the retail/auto service which you are asked to make sure those conditional uses meet adequate provision for automobile queuing at any service bays and service doors which will not restrict vehicular movement on to and off of the site. An additional provision is made for parking vehicles left for any accessory installation. Those relate to the retail/auto service conditional use 6 of this application. Because this application also is proposing outdoor storage greater than 1% of the gross floor area of the building, it must meet four additional conditions:  The outdoor display or storage area shall not exceed 50% of the gross floor area of the building.  No outdoor display will be located in any side yard.  No outdoor display will be located in any rear yard.  All display and storage areas will be separated from any vehicle parking.  All display and storage areas will be separated from any circulation and screened from view from a public street  It must also meet the requirements of article 19 – the Development Standards in the Land Development Code. In addition to those six specific conditional use standards, it must also meet the four standard conditions of conditional use:  The proposed development standards and use conditions of the district are met.  The proposed use will not create unreasonable traffic congestion or hazardous conditions  The proper operation of the conditional use is ensured by providing and maintaining adequate and appropriate utilities, fire protection, drainage, parking, loading, and other site improvements.  The proposed use is appropriate for the location sought and consistent with the development in the area. In terms of shoreland zoning issues, the project exceeds the 75-foot setback required in our ordinance. Considering those standards, the board is asked to consider the facts presented and make a decision based on those criteria which I just mentioned and in the opinion of the Planning staff, the site plan meets both the ordinance requirements and the conditional uses as proposed for this project in Bangor Shopping and Personal Service District and staff would recommend approval of the site development plan and the conditional uses. Mr. Fournier: Thank you. Any questions of staff? I’d be glad to accept a motion and I remind board members that any motion has to be in the affirmative. Unknown: For the purposes of discussion, I so move. Mr. Fournier: Is there a second? Unknown Speaker: I’ll second that motion. Mr. Fournier: Thank you. George why don’t I start off with you seeing how you’re at the end of the line. 7 George Burgoyne: I’ve been on this Planning Board for a long, long time and I guess one of the things I’ve kind of learned that planning and the comprehensive plan and zoning really is a political process. That people can honestly have disagreements about what makes sense and what doesn’t. None of us can see into the future. None of us know what may come down or may not come down. I’ve really been torn because I think in my gut, in my heart, I’d just as soon see the field there and I’d just as soon see the City do something that keeps some of rural Maine Bangor the way it is. But, the one thing that the Planning Board hasn’t got the right to do is to write zoning laws. That responsibility and privilege go to the elected representatives of the people of the City of Bangor. The City Council. They approve the Comprehensive Plan. They approve the zoning. We can make recommendations, but in the end the zoning comes out of the political process. This particular area has been zoned commercial for as long as I’ve been involved in zoning or planning and that’s going back into the eighties. I think there is legitimate concerns. I think there is a legitimate discussion of whether in fact that ever should be, but I think the reality this board faces is that it is. Whether we like it or not. I think it’s our obligation to try to enforce the rules within the Comprehensive Plan as best we can and it seems to me – I can’t get to enforcing --- the bottom line is a number of folks who don’t like this development wouldn’t like any development. I don’t think it relates specifically to the site plan, it think it’s where the site plan is. Certainly my concern is where the site plan is. Should it be developed – to say it another way. But, that isn’t what we can deal with. I think we have to deal with the site plan. We have to deal with the rules in effect now and I can’t find a way to get to enforcing a 250’ buffer. I don’t think that’s…I can’t get there. Now, maybe one of my compatriots will make an argument that can convince me and that’s fine..I don’t know. I’m here as much to listen as not. But, I think that basically, this development is probably not greatly different than what was in the minds of the City Councils, at least two of them that I know of, when they approved the Comprehensive Plans and had that area in Stillwater designated for commercial and retail. I think this is what they thought would happen. Now, whether this is bigger, whether it’s…I think it’s probably later than what they thought was going to develop, but I think this is the kind of development that they were looking at and I’m really concerned about the Planning Board, de- facto, changing the zone because I don’t think we have the right to do that. So, unless I hear otherwise and can be convinced otherwise, I think that the…I would have to agree with the staff and agree with the staff’s recommendation that the developer has met the Bangor criteria for development. Whether they’ve met the state criteria, we’ll see. I don’t know. But, I think under our land use plan, they have met ours. Thank you Mr. Chair. Mr. Fournier: Thank you Mr. Burgoyne. Mrs. Bostwick, I know you weren’t here at the last meeting, if you want to abstain from (inaudible), that’s fine. You do? Mrs. Bostwick: Yes. 8 Mr. Fournier: That’s fine you do? Okay. Mr. Kreitzer? Mr. Kreitzer: Well, unlike Mr. Burgoyne, I haven’t been a member of the Board for a great long time. But, needless to say, this is probably the most contentious issue that I’ve had to deal with. When this first came up six or eight months ago, I think the general nature of that area was not common knowledge. I certainly didn’t know much about it, but I think the information that has come forward over the past 6-8 months in terms of what that area is like, the bog if you will, the stream…however you want to characterize it, to me that’s made the difference. We’ve had a lot of testimony, both expert testimony and lay testimony about the nature of that area. Mr. Moore, from the Department of Inland Fisheries and Wildlife on a couple of letters has spoken of the unique quality of the habitat as well as the high value of that habitat. Coming from an expert as Mr. Moore is, that carries a lot of weight with me. I also have concerns about the great deal of impervious surface that this project is proposing. Not only Mr. Chandler Moore’s study that was brought up a couple of weeks ago, but also other evidence which speaks to the nature of run-off and what happens with impervious services. So, Given both the expert and the lay testimony that I’ve heard over the past, really 6-8 months, I will be voting against this proposal. Mr. Fournier: Thank you. Mr. Lingley? Mr. Lingley: Yes. Thank you Mr. Chairman. I wasn’t going to make any personal comments, but perhaps I should given how we’ve developed this dialogue. First of all, I want to thank the staff and the applicant. I think they’ve done a good job to reformulate this application to fit our ordinance as best it can and I want to say that after the last public hearing when I heard such an outpouring of frustration and concern about issues that aren’t within our power to really change, but are within the City Council’s power to change, I did call the Planning Officer, Katherine Weber and asked her what reaction there was to that dialogue that we heard at the last public hearing. I was encouraged by what I heard and that is that the City Council is making an effort to study the very issues that were raised at that hearing and concern all of us, including myself. These are much larger issues than we, as a board, can address and Mr. Burgoyne said we have certain rules that we have to follow. It is unfair to the applicant to change those rules mid-stream…pardon the pun. And we can’t. It’s against the law to do so. I have to commend the applicant for thoroughly presenting the traffic issues which initially concerned me greatly. Round one of this was some real concerns that I had based on my personal experience of driving up and down Stillwater Avenue. But, I can’t make a decision based on gut feelings or what I saw. It seems to me that the evidence is put to rest at least for purposes of this decision, whether or not there is any adverse impact on traffic and I commend the traffic people who have done their homework. I hope that, in fact, reality bears relationship to the statistics, but all I can go with is on what’s the evidence here. I do have some concerns and I have expressed them 9 about the impact on this irreplaceable natural habitat which is the bog and the surrounding area, including the area adjacent…immediately adjacent to this, the subdivision here in the site plan. One of our charges is to determine that the application shall not have an adverse effect on the rare and irreplaceable natural areas that have been presented to us as existing in overwhelming evidence it seems to me there was a substantial amount of evidence that this was…is an extremely important area that six months ago I didn’t know existed. I’m sorry to say. It took this…perhaps it took this process to get it on the map. And, the testimony that I heard and I quoted the sources from the Inland Fisheries letter and the testimony of the wildlife ecologist, Judy Jones, and some of the written testimony that has been presented to us indicates that this area should be vigorously protected. I don’t know what the state’s going to do because the state has a second crack at this. Perhaps the state will say it can’t support under SLODA this application without the pond being outside of this buffer zone. But, clearly this buffer zone is very important to the ecology of the area and I’ll tell the applicant that if the pond were outside of this 250 foot zone, I could support this application, but as it has been presented to us tonight, I couldn’t and therefore, I would have to vote against it on that single basis. Mr. Fournier: Thank you Mr. Lingley. Mr. Guerette, I know you’re not voting tonight. If you feel comfortable speaking for or against, I’d be glad to hear it. Mr. Guerette: Okay. Thank you Mr. Chairman. Well, I’ve read all of these exhibits and handouts and notes and minutes and I’ve been to these meetings and certainly a lot of effort done on everyone’s part. This proposal, in my opinion, is unique because it triggers a conditional use review. What that means is, the applicant could have submitted a plan to develop the site that was 100% in conformity with the shopping and personal service district zone. But, they did not. They’re asking for exceptions and this conditional use review allows us to have an opportunity to look upon areas concerning traffic, and whether or not the proposal or the development will create unreasonable traffic congestion or hazardous conditions and also asks us to look upon whether or not the proposed use is appropriate for the location sought and is consistent with other development in the area. These are parts of the proposal that we can only make judgment on after public comment. That’s why we have public hearings. In my opinion, there is a preponderance of public opinion that said, ‘we don’t believe that this project will not create unreasonable traffic congestion in our neighborhoods that surround Stillwater Avenue’. I was quite struck with the person who sat or stood on a street corner and did her own traffic survey and I take that to mean something and I take that to be of value. As far as hazardous conditions, I’m a little concerned about having a crossing lane over 5 or 6 lanes of traffic without any sidewalks to properly channel people to the right place. That’s an area that we’ve received a lot of testimony on and I think that in my judgment the preponderance of testimony was against this proposal. Also, whether or not the proposed use is appropriate for the location sought and is consistent with other development in the area. I might argue that along 10 Stillwater Avenue rests a ribbon of developed land. On the other side of that ribbon rests a natural area and part of our task is to take into consideration the preservation and the value of areas that are scenic and of natural significance. I certainly feel there’s been a preponderance of testimony to that fact. So, considering that this is a proposal that asks for exceptions and the exceptions allows us to look at these areas and the public has spoken, I would not be able to support the development. Mr. Fournier: Thank you Mr. Guerette. Mr. Costlow? Mr. Costlow: Thank you Mr. Chairman. I would like to begin by reading a few provisions of our organization and administration of the Land Development Code of the City of Bangor. Very often, we go to the end of the regulations which are those which are most specific, but I think in this case, it’s important to go back to the beginning where it tells us what the purpose of this whole document is. What the purpose of the planning board is, of course one of the purposes that I think are relevant and germane to this particular issue is item h, which states “to farther the maintenance of safe and healthful conditions to prevent and control water pollution, to protect fish spawning grounds, aquatic life, bird and other wildlife habitat, to protect buildings and land from floodings,” etc., I think what that does is to tell the planning board that we are to consider those things and it’s very rare on this board that we do consider those things. We defer to DEP and we defer to the Department of Fish and Wildlife Service in most cases. I’ve been on the Planning Board for a number of years and this is the first time where item i. from section 165-114 came into play. That is an area of irreplaceable natural beauty. I think even the applicant by this time has recognized that this particular area is such an area. One of our criteria is to first to decide whether that (FIRST SIDE OF TAPE ENDED) by contained therein, certainly is a component of that. Now, it tells us…I think it’s the first time where we really had essentially…the first time we had this irreplaceable area of natural beauty and what we were asked to put next to it was one of the large developments that the City had ever…well, at least since I’ve been on the Planning Board, probably the largest development that I’ve looked at. Trying to harmonize these two projects has obviously been one of the most difficult. I found that the applicant met the provisions of the conditional use. I think traffic, although at least in my mind, there was evidence, I was willing to give the benefit of the doubt to the applicant on that issue because of the interchange. It was unclear to me how the interchange really is going to affect the traffic and given what we heard, giving them the benefit of the doubt, I thought that they made the criteria of the conditional use, at least in my mind. Marginally, but I think they made it. I found the…some of the exhibits particularly significant. #8 which was the environmental study done and the ecological conditions of the marsh, but when we looked at the applicant…when the Department of Fish and Wildlife Service said, 250 feet back, well the applicant came 250 feet back but what the problem is that it said, if left intact. Now, it may be that the buffer is sufficient for the Department of Fish and Wildlife. If that’s the case, that evidence should 11 have been presented to the board. I’m not in the position to say well, what they might do, they might be able to fix it at a later date. We’re charged with looking at it now. If that buffer zone is, as Mr. Kane indicated, part of a buffer, then there should be evidence to the board that that’s okay. I agree with Mr. Lingley that the applicant bears the burden of proof here. If the applicant did not come forward with proof once there’s been evidence on the other side, they can’t prevail on that issue. I will say that I think the applicant is very close to prevailing and I certainly agree with Mr. Lingley that a few modifications, the first one being the buffer zone, because, although Mr. Burgoyne said that the City was thinking about zoning when they did this area, that may be true but the evidence presented to this Board showed something that maybe the City Council never considered so I think having all that testimony, scientific and otherwise, was certainly persuasive. I think if the applicant can present this Board with something to assure that the buffer zone is either appropriate in the 250 foot setback, #1, I think, I can certainly be persuaded that the application could go forward. When we had the first application, we were told if we can’t do it at 75 feet, we can’t do it. Well, they came back at 250 feet and evidently, it still makes economic sense to do it that way. I think if it’s looked at again, it can still make economic sense to do it again. It may be that they don’t have to move the pond at all, but there has to be evidence presented. That’s issue #1. Issue #2 was regarding the de-icing. I think there was evidence presented that there was a risk, certainly to the marsh about this large impervious surface during times of thick ice but not much water when that all gets melted and drains in, what’s the effect? Well, the applicant has to demonstrate to the board that there will be no effect and what we were presented with was apparently, I think it was something from Mr. Sewall, that said well, apparently the Department of Environmental Protection doesn’t really find it persuasive because they didn’t make a recommendation. Well, that’s not really evidence to me. What I would like to see from the applicant, when they come back, if they come back before the Board, is some money spent to have someone tell us, “well, look, if we use this we can monitor this water outtake and it won’t have any effect at all,” but there’s evidence presented on the other side that it will have an effect and the applicant bearing the burden of proof presents us with nothing to…in support…the DEP isn’t doing anything, apparently. That’s really not evidence. In denying this application, and voting against it, I would say, there’s only two small things for this applicant to do to come back before this Board and do it. It’s not raising the bar I don’t think at all, because the criteria is set out in the Land Use Development Code and I feel we’re only following that code and basing it on the evidence presented. Mr. Fournier: Thank you Mr. Costlow. I think pretty much a decision has been made, but let me say just a couple of things. One, I really want to commend the staff for what they’ve provided all the Board members. I greatly appreciate and I’m sure all the Board members greatly appreciate the time and effort that was spent into this project. To me, it’s critical to the whole process. Second, I really want to thank everyone on the Planning Board. Most of you probably know, 12 maybe not a whole bunch of you know. This is a volunteer position. We all come out because we enjoy it so much. But, I want to thank all the Board members for attending and for attending first and second of all, for giving your opinions. They are all highly valued. My opinion on the subject and I’m one clearly just…I feel, just to go to the nut of the issue, is based on City ordinance requirements for site plans, and the proposed conditional uses, I don’t see too much gray area. I see a lot of things as black and white and in my view, I have to support this issue. I feel that they have met all the requirements that the City has laid out for what we follow under the Planning Board. Mr. Costlow makes a very good point and Mr. Lingley makes a very good point as well as Mr. Guerette and Mr. Krietzer. However, I just have a different view and I appreciate all your views. That being said, the motion on the table was conditional use and I will ask all those in favor? John Hamer, Assistant City Attorney: You need to vote on the last one…on the second one. Just to make it clear for the record. Thanks. Kevin Kane: You want to vote on the site development plan first? John Hamer: It was my understanding was that this vote was on the site development plan, right now. That’s what everyone has voted on and you being the fifth member, you need to make it clear that what your vote is. Mr. Fournier: Thank you. The vote again is on site development plan and I would ask all those in favor? Mr. Burgoyne and Mr. Fournier. All those opposed? \[raised hands\]. Thank you, that’s a vote that would be denied 3-2. At this point, it probably doesn’t make a whole bunch of sense to vote on the conditional use. John Hamer: If the applicant would like to withdraw the conditional use approval, then fine, otherwise you need to vote on that as well, because if you have a conditional use approval, the applicant can have that and them come back and get site plan approval within 60 days. Kevin Kane: Point of information Mr. Chairman, and probably Mr. Hamer, the vote on the site plan which just occurred, the criteria for that does or does not include the sections that was referenced by Mr. Costlow, I believe it was section h of your ordinance, I do not believe that the site plan application extends this Board the authority to vote that includes that consideration. Could you correct me if I’m missing that point? John Hamer: Section 114 of the code does include A through I, which does quote advice over numbers here. It’s the conditional use comments of adequate queuing and some of those other issues that can’t be considered as part of the application for the site plan. The section “I” which… Kevin Kane: Is section “I” relevant to a site plan? 13 John Hamer: Yes. Yes it is. Not to a conditional use. Kevin Kane: I understand the difference. We’d like to proceed with a vote on the entire package. Mr. Fournier: I’ll accept a motion for the conditional use for 638V Stillwater Avenue. Mr. Burgoyne: So moved. Mr. Lingley: Second. Mr. Fournier: Mr. Burgoyne, Mr. Lingley. Thank you. I think if, unless you want me to go up and down again, I would prefer not to. Does anyone have any questions? Kevin Kane: on conditional use? Mr. Fournier: On conditional use then. (John Hamer: You’ll have to take a roll call) Kevin Kane: I think you need to ask us… Mr. Fournier: Certainly I will. I was asking if anyone had any questions. If not, I would ask all those in favor? And that would pass 5-0. Thank you. 14 Planning Board Meeting April 3, 2001 Katherine Weber – City of Bangor Planning Officer As you know, you need to act on the site plan and the conditional uses. Under the site plan approval standards in our ordinance in section 165-114 of the land development code, there are eleven standards for which this application and all site plan applications are reviewed. To summarize those eleven standards, they deal with:  Off-street parking and loading  access drives  stormwater drainage and the impacts on the adjacent properties as well as the site  location of any outdoor displays  screening and visual impacts of the project  landscaping  location of the building in terms of the area and the features adjacent to it,  effects on the scenic and natural environment and historic sites  If it is situated within 250’ of a wetland, how that the project can not adversely affect the shoreline of the wetland In addition, because this is two conditional uses being considered, there are two special conditions under the retail/auto service which you are asked to make sure those conditional uses meet adequate provision for automobile queuing at any service bays and service doors which will not restrict vehicular movement on to and off of the site. An additional provision is made for parking vehicles left for any accessory installation. Those relate to the retail/auto service conditional use of this application. Because this application also is proposing outdoor storage greater than 1% of the gross floor area of the building, it must meet for additional conditions:  The outdoor display or storage area shall not exceed 50% of the gross floor area of the building.  No outdoor display will be located in any side yard.  No outdoor display will be located in any rear yard.  All display and storage areas will be separated from any vehicle parking.  All display and storage areas will be separated from any circulation and screened from view from a public street  It must also meet the requirements of article 19 – the Development Standards in the Land Development Code. In addition to those six specific conditional use standards, it must also meet the four standard conditions of conditional use:  The proposed development standards and use conditions of the district are met.  The proposed use will not create unreasonable traffic congestion or hazardous conditions  The proper operation of the conditional use is ensured by providing and maintaining adequate and appropriate utilities, fire protection, drainage, parking, loading, and other site improvements.  The proposed use is appropriate for the location sought and consistent with the development in the area. In terms of shoreland zoning issues, the project exceeds the 75-foot setback required in our ordinance. Considering those standards, the board is asked to consider the facts presented and make a decision based on those criteria which are just mentioned and in the opinion of the Planning staff, the site plan meets both the ordinance requirements and the conditional uses as proposed for this project in Bangor Shopping and Personal Service District and staff would recommend approval of the site development plan and the conditional uses. Mr. Fournier: Thank you. Any questions of staff? I’d be glad to accept a motion and I remind board members that any motion has to be in the affirmative. Mr. Fournier: For the purposes of discussion, I so move. Mr. Fournier: Is there a second? Unknown Speaker: I’ll second that motion. Mr. Fournier: Thank you. George why don’t I start off with you seeing how you’re at the end of the line. George Burgoyne: I’ve been on this planning board for a long, long time and I guess one of the things I’ve kind of learned that planning and the comprehensive plan and zoning really is a political process. That people can honestly have disagreements about what makes sense and what doesn’t. None of us can see into the future. None of us know what may come down or may not come down. I’ve really been torn because I think in my gut, in my heart, I’d just as soon see the field there and I’d just as soon see the City do something that keeps some of rural Maine Bangor the way it is. But, the one thing that the Planning Board hasn’t got the right to do is to write zoning laws. That responsibility and privilege go to the elected representatives of the people of the City of Bangor. The City Council. They approve the comprehensive plan. They approve the zoning. We can make recommendations, but in the end the zoning comes out of the political process. This particular area has been zoned commercial for as long as I’ve been involved in zoning or planning and that’s going back into the eighties. I think there is legitimate concerns. I think there is a legitimate discussion of whether in fact that ever should be, but I think the reality this board faces is that it is. Whether we like it or not. I think it’s our obligation to try to enforce the rules within the comprehensive plan as best we can and it seems to me – I can’t get to enforcing --- the bottom line is a number of folks who don’t like this development wouldn’t like any development. I don’t think it relates specifically to the site plan, it think it’s where the site plan is. Certainly my concern is where the site plan is. Should it be developed – to say it another way. But, that isn’t what we can deal with. I think we have to deal with the site plan. We have to deal with the rules in effect now and I can’t find a way to get to enforcing a 250’ buffer. I don’t think that’s…I can’t get there. Now, maybe one of my compatriots will make an argument that can convince me and that’s fine..I don’t know. I’m here as much to listen as not. But, I think that basically, this development is probably not greatly different than what was in the minds of the City Councils, at least two of them that I know of, when the approved the comprehensive plans and had that area in Stillwater designated for commercial and retail. I think this is what they thought would happen. Now, whether this is bigger, whether it’s…I think it’s probably later than what they thought was going to develop, but I think this is the kind of development that they were looking at and I’m really concerned about the planning board, defacto, changing the zone because I don’t think we have the right to do that. So, unless I hear otherwise and can be convinced otherwise, I think that the…I would have to agree with the staff and agree with the staff’s recommendation that the developer has met the Bangor criteria for development. Whether they’ve met the state criteria, we’ll see. I don’t know. But, I think under our land use plan, they have met ours. Thank you Mr. Chair. Mr. Fournier: Thank you Mr. Burgoyne. Mrs. ???? I know you weren’t here at the last meeting, if you want to abstain from (inaudible), that’s fine. You do? Mrs. ???: Yes. Mr. Fournier: That’s fine you do? Okay. Mr. Kreitzer? Mr. Kreitzer: Well, unlike Mr. Burgoyne, I haven’t been a member of the board for a great long time. But, needless to say, this is probably the most contentious issue that I’ve had to deal with. When this first came up six or eight months ago, I think the general nature of that area was not common knowledge. I certainly didn’t know much about it, but I think the information that has come forward over the past 6-8 months in terms of what that are is like, the bog if you will, the stream…how ever you want to characterize it, to me that’s made the difference. We’ve had a lot of testimony, expert testimony, and lay testimony about the nature of that area. Mr. Moore, from the Department of Inland Fisheries and Wildlife on a couple of letters has spoken of the unique quality of the habitat as well as the high value of that habitat. Coming from an expert as Mr. Moore is, that carries a lot of weight with me. I also have concerns about the great deal of impervious surface that this project is proposing. Not only Mr. Moores study that was brought up a couple of weeks ago, but also other evidence which speaks to the nature of run-off and what happens with impervious services. Given both the expert and the lay testimony that I’ve heard over the past, really 6-8 months, I will be voting against this proposal. Mr. Fournier: Thank you. Mr. Lingley? Mr. Lingley: Yes. Thank you Mr. Chairman. I wasn’t going to make any personal comments, but perhaps I should given how we’ve developed this dialogue. First of all, I want to thank the staff and the applicant. I think they’ve done a good job to reformulate this application to fit our ordinance as best it can and I want to say that after the last public hearing when I heard such as outpouring of frustration and concern about issues that aren’t within our power to really change, but are within the City Council’s power to change, I did call the Planning Officer, Katherine Weber and asked her what reaction there was to that dialogue that we heard at the last public hearing. I was encouraged by what I heard and that is that the City Council is making an effort to study the very issues that were raised at that hearing and concern all of us, including myself. These are much larger issues than we, as a board, can address and Mr. Burgoyne said we have certain rules that we have to follow. It is unfair to the applicant to change those rules mid-stream…pardon the pun. And we can’t. It’s against the law to do so. I have to commend the applicant for thoroughly presenting the traffic issues which initially concerned me greatly. Round one of this was some real concerns that I had based on my personal experience of driving up and down Stillwater Avenue. But, I can’t make a decision based on gut feelings or what I saw. It seems to me that the evidence is put to rest at least for purposes of this decision, whether or not there is any adverse impact on traffic and I commend the traffic people who have done their homework. I hope that, in fact, reality bears relationship to the statistics, but all I can go with on what’s the evidence here. I do have some concerns and I have expressed them about the impact on this irreplaceable natural habitat which is the bog and the surrounding area, including the area adjacent…immediately adjacent to this, the subdivision here in the site plan. One of our charges is to determine that the application shall not have an adverse affect on the rare and irreplaceable natural areas that have been presented to us as existing in overwhelming evidence it seems to me there was a substantial amount of evidence that this was…is an extremely important area that six months ago I didn’t know existed. I’m sorry to say. It took this…perhaps it took this process to get it on the map. And, the testimony that I heard and I quoted the sources from the Inland Fisheries letter and the testimony of the wildlife ecologist, Judy Jones, and some of the written testimony that has been presented to us indicates that this area should be vigorously protected. I don’t know what the state’s going to do because the state has a second crack at this. Perhaps the state will say it can’t support (inaudible) this application without the pond being outside of this buffer zone. But, clearly this buffer zone is very important to the ecology of the area and I’ll tell the applicant that if the pond were outside of this 250 foot zone, I could support this application, but as it has been presented to us tonight, I couldn’t and therefore, I would have to vote against it on that single basis. Mr. Fournier: Thank you Mr. Lingley. Mr. Guerette, I know you’re not voting tonight. If you feel comfortable speaking for or against, I’d be glad to hear it. Mr. Guerette: Okay. Thank you Mr. Chairman. Well, I’ve read all of these exhibits and handouts and notes and minutes and I’ve been to these meetings and certainly a lot of effort done on everyone’s part. This proposal, in my opinion, is unique because it triggers a conditional use review. What that means is, the applicant could have submitted a plan to develop the site that was 100% in conformity with the shopping and personal service district zone. But, they did not. They’re asking for exceptions and this conditional use review allows us to have an opportunity to look upon areas concerning traffic, and whether or not the proposal or the development will create unreasonable traffic congestion or hazardous conditions and also asks us to look upon whether or not the proposed use is appropriate for the location sought and is consistent with other development in the area. These are parts of the proposal that we can only make judgment on after public comment. That’s why we have public hearings. In my opinion, there is a preponderance of public opinion that said, ‘we don’t believe that this project will not create unreasonable traffic congestion in our neighborhoods that surround Stillwater Avenue’. I was quite struck with the person who sat or stood on a street corner and did her own traffic survey and I take that to mean something and I take that to be of value. As far as hazardous conditions, I’m a little concerned about having a crossing lane over 5 or 6 lanes of traffic without any sidewalks to properly channel people to the right place. That’s an area that we’ve received a lot of testimony on and I think that in my judgment the preponderance of testimony was against this proposal. Also, whether or not the proposed use is appropriate for the location sought and is consistent with other development in the area. I might argue that along Stillwater Avenue rests a ribbon of developed land. On the other side of that ribbon rests a natural area and part of our task is to take into consideration the preservation and the value of areas that are scenic and of natural significance. I certainly feel there’s been a preponderance of testimony to that fact. So, considering that this is a proposal that asks for exceptions and the exceptions allows us to look at these areas and the public has spoken, I would not be able to support the development. Mr. Fournier: Thank you Mr. Guerette. Mr. Costlow? Mr. Costlow: Thank you Mr. Chairman. I would like to begin by reading a few provisions of our organization and administration of the land development code of the City of Bangor. Very often, we go to the end of the regulations which are those which are most specific, but I think in this case, it’s important to go back to the beginning where it tells us what the purpose of this whole document is. What the purpose of the planning board is, of course one of the purposes that I think are relevant and germane to this particular issue is item h, which states “to farther the maintenance of safe and healthful conditions to prevent and control water pollution, to protect fish spawning grounds, aquatic life, bird and other wildlife habitat, to protect buildings and land from floodings, etc., I think what that does is to tell the planning board that we are to consider those things and it’s very rare on this board that we do consider those things. We defer to DEP and we defer to the Department of Fish and Wildlife Service in most cases. I’ve been on the planning board for a number of years and this is the first time where item i. from section 165-114 came into play. That is an area of irreplaceable natural beauty. I think even the applicant by this time has recognized that this particular area is such an area. One of our criteria is to first to decide whether that (FIRST SIDE OF TAPE ENDED) by contained therein, certainly is a component of that. Now, it tells us…I think it’s the first time where we really had essentially…the first time we had this irreplaceable area of natural beauty and what we were asked to put next to it was one of the large developments that the City had ever…well, at least since I’ve been on the planning board, probably the largest development that I’ve looked at. Trying to harmonize these two projects has obviously been one of the most difficult. I found that the applicant met the provisions of the conditional use. I think traffic, although at least in my mind, there was evidence, I was willing to give the benefit of the doubt to the applicant on that issue because of the interchange. It was unclear to me how the interchange really is going to affect the traffic and given what we heard, given them the benefit of the doubt, I thought that they made the criteria of the conditional use, at least in my mind. Marginally, but I think they made it. I found the…some of the exhibits particularly significant. #8 which was the environmental study done and the ecologically conditions of the marsh, but when we looked at the applicant…when the Department of Fish and Wildlife Service said, 250 feet back, well the applicant came 250 feet back but what the problem is that it said, if left in tact. Now, it may be that the buffer is sufficient for the Department of Fish and Wildlife. If that’s the case, that evidence should have been presented to the board. I’m not in the position to say well, what they might do, they might be able to fix it at a later date. We’re charged with looking at it now. If that buffer zone is, as Mr. King indicated, part of a buffer, then there should be evidence to the board that that’s okay. I agree with Mr. Lingley that the applicant bears the burden of proof here. If the applicant did not come forward with proof once there’s been evidence on the other side, they can’t prevail on that issue. I will say that I think the applicant is very close to prevailing and I certainly agree with Mr. Lingley that a few modifications, the first one being the buffer zone, because, although Mr. Burgoyne said that the City was thinking about zoning when they did this area, that may be true but the evidence presented to this board showed something that maybe the City Council never considers so I think have all that testimony, scientific and otherwise, was certainly persuasive. I think if the applicant can present this board to assure that the buffer zone is either appropriate in the 250 foot setback, #1, I think, I can certainly be persuaded that the application could go forward. When we had the first application, we were told if we can’t do it at 75 feet, we can’t do it. Well, they came back at 250 feet and evidently, it still makes economic sense to do it that way. I think if it’s looked at again, it can still make economic sense to do it again. It may be that they don’t have to move the pond at all, but there has to be evidence presented. That’s issue #1. Issue #2 was regarding the de-icing. I think there was evidence presented that there was a risk, certainly to the marsh about this large impervious surface during times of thick ice but not much water when that all gets melted and drains in, what’s the effect? Well, the applicant has to demonstrate to the board that there will be no effect and what we were presented with was apparently, I think it was something from Mr. Sewall, that said well, apparently the Department of Environmental Protection doesn’t really find it persuasive because they didn’t make a recommendation. Well, that’s not really evidence to me. What I would like to see from the applicant, when they come back, if they come back before the board, is some money spent to have someone tell us, “well, look, if we use this we can monitor this water outtake and it won’t have any effect at all, but there’s evidence presented on the other side that it will have an effect and the applicant bearing the burden of proof presents us with nothing to…in support…the DEP isn’t doing anything, apparently. That’s really not evidence. In denying this application, and voting against it, I would say, there’s only two small things for this applicant to do to come back before this board and do it. It’s not raising the bar I don’t think at all, because the criteria is set out in the land use development code and I feel we’re only following that code and basing it on the evidence presented. Mr. Fournier: Thank you Mr. Costlow. I think pretty much a decision has been made, but let me say just a couple of things. One, I really want to commend the staff for what they’ve provided all the board members. I greatly appreciate and I’m sure all the board members greatly appreciate the time and effort that was spent into this project. To me, it’s critical to the whole process. Second, I really want to thank everyone on the planning board. Most of you probably know, maybe not a whole bunch of you know. This is a volunteer position. We all come out because we enjoy it so much. But, I want to thank all the board members for attending and for attending first and second of all, for giving your opinions. They are all highly valued. My opinion on the subject and I’m one clearly just…I feel, just to go to the nut of the issue, is based on City ordinance requirements for site plans, and the proposed conditional uses, I don’t see too much gray area. I see a lot of things as black and white and in my view, I have to support issue. I feel that they have met all the requirements that the City has laid out for what we follow under the planning board. Mr. Costlow makes a very good point and Mr. Lingley makes a very good point as well as Mr. Guerette and Mr. Krietzer. However, I just have a different view and I appreciate all your views. That being said, the motion on the table was conditional use and I will ask all those in favor? John Hamer, Assistant City Attorney: You need to vote on the last one…on the second one. Just to make it clear for the record. Thanks. Unknown Speaker: You want to vote on the site development plan first? John Hamer: It was my understanding was that this vote was on the site development plan, right now. That’s what everyone has voted on and you being the fifth member, you need to make it clear that what your vote is. Mr. Fournier: Thank you. The vote again is on site development plan and I would ask all those in favor? Mr. Burgoyne and Mr. Fournier. All those opposed? \[raised hands\]. Thank you, that’s a vote that would be denied 3-2. At this point, it probably doesn’t make a whole lot of sense to vote on the conditional use. John Hamer: If the applicant would like to withdraw the conditional use approval, then fine, otherwise you need to vote on that as well, because if you have a conditional use approval, the applicant can have that and them come back and get site plan approval within 60 days. Unknown Speaker: Point of information Mr. Chairman, and probably Mr. Hamer, the vote on the site plan which just occurred, the criteria for that does or does not include the sections that was referenced by Mr. Costlow, I believe it was section 8 of your ordinance, I do not believe that the site plan application extends this board the authority to vote that includes that consideration. Could you correct me if I’m missing that point? John Hamer: Section 114 of the code does include A through I, which does quote advice over numbers here. It’s the conditional use comments of the (inaudible) queing and some of those other issues that can’t be considered as part of the application for the site plan. The section “I” which… Unknown Speaker: Is section “I” relevant to a site plan? John Hamer: Yes. Yes it is. Not to a conditional use. Unknown Speaker: I understand the difference. We’d like to proceed with a vote on the entire package. Mr. Fournier: I’ll accept a motion for the conditional use for 638V Stillwater Avenue. Mr. Burgoyne: So moved. Mr. Lingley: Second. Mr. Fournier: Mr. Burgoyne, Mr. Lingley. Thank you. Does anyone have any questions on conditional use? Unknown Speaker: I would vote in favor of conditional use. John Hamer: You’ll have to take a roll call. Unknown Speaker: I think you need to ask us… Mr. Fournier: Generally I will. I was asking if anyone had any questions. If not, I would ask all those in favor? And that would pass 5-0. Thank you.