Present: R. Scott Wyman, Chair, Mike Martin, Adrian Kendall, Andrew Black

Absent: Ron Copp, Matt Manahan, George Turner

Staff: Barbara McPheters, Code Enforcement Officer, Pam Bosarge, Clerk

The meeting was called to order at 7:05 p.m.

Mr. Wyman welcomed the applicants and gave an overview of the order of the meeting. Stating there would be opportunity for public testimony and four positive votes would be required to approve a request.

Hearings and Presentations:

1. Special Permit Foreside Village, LLC
U.S. Route One
Tax Assessor Map R01, Lots 8 & 11
Office Commercial District

Ms. McPheters presented background information as follows: Foreside Village LLC requests a special permit for extraction of earth materials at U.S. Route One on Map R01 Lots 8 and 11 in the Office Commercial (OC) District.

At the February 18, 2003 Planning Board meeting, the applicant received a favorable advisory recommendation. The Planning Board identified several items to be considered during the review process. A copy of the recommendation is included as part of the submittal.

The Board will need to determine that the use will comply with the Extraction of Earth Materials regulation as stated in Section 410 of the Cumberland Zoning Ordinance:

Mr. Tom Greer of Pinkham Greer Consulting Engineers gave an overview of the project. This project is in preparation of two Route One properties for future use as commercial developments. The developer has met with the DEP staff and determined the one-acre site will fall below the DEP's Permit Application requirements. The request will be reviewed under Permit by Rule. Based on the site walk with the Cumberland Boards, the plans have been revised to show additional details. These include a 100-foot buffer to the front boundary line and fencing at the top of the rock cut. The erosion control and grading requested by Bill Shane peer reviewer have been addressed. The applicant has provided Rock Removal Guidelines that will be followed as the project moves forward. There will be approximately 150,000 yards of rock from the blasting on parcel 1; and anticipate 50,000 yards of fill for parcel two. A crushing plant will be set up and excess rock will be sold or given away. An erosion control plan will be put in place, with silt fencing, and the steep slopes will be stabilized. The revised survey data has been added to the Plan showing the correct wetland locations. The applicant has talked with Mr. Ogden, Public Works Director to coordinate the different site datums being used by the MDOT and the Town. This will require additional coordination as the Site Plans and Sewer Extension Plans are developed. Sweet Associates has provided a groundwater study. The original quarry located in Falmouth has three monitoring wells installed. These have been opened, measured for groundwater depth, and sampled for quality. The groundwater elevation in the well is consistent with the ice flow that the Boards observed in the quarry. The Planning Board and DEP will have the opportunity to review and guide the project through future phases.
The closest subdivisions from the site are 1,000 to 1,500 feet from the project; and are the subdivisions off from Route 88. A Department of Transportation (DOT) entrance permit will be applied for.

Mr. Wyman asked where the detention pond would be located.

Mr. Greer stated towards Route One.

Mr. Kendall asked about the 100" buffer, Section 410.3.1 states the Board of Adjustment and Appeals may reduce the buffer required from 200.

Mr. Greer stated the reduced buffer would make the property more useful. There is also an additional 40 to 50 foot right-of-way. The total buffer will be 140 feet.

Mr. Kendall asked how deep the standing water would be in the pond.

Mr. Greer stated four to five feet deep. It will be fenced to comply with guidelines.

Mr. Kendall asked about the grade of adjacent streets.

Mr. Greer stated the elevation would be approximately 84 or 85 feet. The elevation of Route One is 80 feet.

Mr. Black asked about the standard that no soils might be removed or excavated to closer than within five (5) feet of the seasonal high water table as determined by a competent authority.

Mr. Greer stated Mr. Sweets groundwater study states expanding the quarry in Falmouth into Cumberland will have a minimal affect on the water table surrounding the quarry site. The construction of buildings in the base of the quarry excavation will cause foundations to be constructed less than 5 feet above the water table; however, no deleterious affects to the groundwater are predicted to occur because of the construction.

Mr. Kendall asked about fencing at the top of the rock face.

Mr. Greer stated there would be a permanent fence for safety.

Mr. Kendall asked if there would be no embankment left.

Mr. Greer stated correct.

Mr. Wyman asked for testimony from the public in support of the application. There was none. Mr. Wyman asked for testimony that was in opposition, neutral or informational. There was none. The public portion of the meeting was closed.

Mr. Wyman reviewed the conditions of recommendation from the Planning Board.
Ms. McPheters asked that the blasting contractor notify the Code Enforcement of the blasting date and time prior to any blasting.


Mr. Kendall asked if the topsoil issue had been resolved with the Planning Board.

Mr. Greer stated the drawings show 6 inches of topsoil.

Mr. Kendall asked about runoff and the potential for flooding.

Mr. Greer stated the culverts have a large capacity and deep ditches, the runoff would not flood onto Route One.

Mr. Kendall asked the hours of operation and the length of the project.

Ms. McPheters stated that the hours of operation had been addressed at the Planning Board meeting of February 18, 2003 and will be from 7:00 a.m. to 5:00 p.m. Monday through Saturday.

Mr. Kennedy, owner stated there were no neighbors within a quarter of a mile, and the work would be done this calendar year.

The Board reviewed the standards of Section 410 Extraction of Earth Materials with the following findings and conclusions.

Sec. 410 Extraction of Earth Materials

410.1 Top soil, rock, sand, gravel and similar earth materials may be removed from locations where permitted under the terms of this Ordinance only after the granting of a one year, annually renewable special permit for such operations as may be issued by the Board of Adjustment and Appeals and under such terms and conditions as may be approved and provided for by the Board and as provided for in this Ordinance.

410.3 Standards:

.1 The operation shall be shielded from surrounding property by an adequate buffer area of not less than 200 feet from the top of the final grade to the property line, except that the Board of Adjustment and Appeals may reduce the buffer area from the minimum requirement of two hundred (200) feet to a minimum requirement of not less than one hundred (100) feet provided that any excavated property remaining will be left in a condition more useful for some future purpose conforming to the district requirements in which the excavation site is located.
The applicant has reduced the buffer to one hundred feet (100) plus the right-of-way of forty to fifty feet from Route One. The total buffer will be 140 feet from Route One.
The standards of this section have been met.

.2 An applicant may specifically apply as a part of his application for the excavation and removal of lands to the Board of Adjustment and Appeals for waiver of the requirement of the 200 foot buffer strip when the protective barrier serves only to separate two existing gravel pits. The Board of Adjustment and Appeals may only grant a waiver from this requirement of the Ordinance if (1) the protective buffer zones exist only between two existing gravel pits, (2) the owner of the respective properties mutually and voluntarily consent to the removal of the buffer zone, and (3) the Board of Adjustment and Appeals find that it shall not have a detrimental effect upon adjoining properties.
The Board determined this standard did not apply.

.3 Specific plans shall be established to avoid hazards from excessive slopes and/or standing water. In no case may soils be removed or excavated to closer than within five (5) feet of the seasonal high water table as may be determined by a competent authority. Where an embankment must be left upon the completion of operations, it shall be at a slope of not steeper than one (1) foot vertical to three (3) feet horizontal, except that where the required buffer area has been reduced to 100 feet the slope of the edge of the excavation area shall not exceed one (1) foot vertical to four (4) feet horizontal.
The applicant will be excavating rock not soil; the Ordinance applies to soil removal. Sweet Associates has provided a ground water study report on the three monitoring wells on the Grondin lot. Sweet Associates states expanding the quarry in Falmouth into Cumberland will have a minimal affect on the water table surrounding the quarry site. The top of the rock face will be permanently fenced.
The standards of this section have been met.

.4 No standing water shall be allowed to remain longer than two consecutive calendar weeks unless specifically provided for by the Board of Adjustment and Appeals.
A detention pond will be installed conditioned on the installation and maintenance of a four-foot chain link fence. The fence will remain until the Planning Board at its Site Plan Review gives approval for the fence to be removed.
The standards of this section have been met.

.5 In the case of any excavation to a depth of more than 20 feet below the surface there shall be constructed a substantial fence with suitable gates completely enclosing the property or area in which the excavation is located. No portion of such fence shall be located closer than forty feet to the edge of such excavation. However, this condition shall not apply in the case of an excavation or removal of lands adding a slope of one-foot vertical to greater than 3 feet horizontal.
The applicant will fence the top of the rock face with an appropriate four-foot high fence. The fencing by the applicant meets the spirit of the requirement. The Ordinance is intended to protect unsuspecting people from inadvertently falling at an unprotected significant drop off. In a gravel pit, typically that constitutes a large hole in the earth requiring a fence around the entire site. In this case, the only drop off is the rock face, which will be protected by a 4-foot fence. The remainder of the site will be roughly level with Route One and there is no such hazard presented.
The standards of this section have been met.

.6 No excavation shall be extended below the grade of adjacent streets unless a 200-foot buffer strip shall be provided from the edge of the right-of-way except in cases where a specific condition has been made with the consent of the Board of Adjustment and Appeals and other involved parties such as the Cumberland Highway Department, Maine State Department of Transportation and other property owners for the reconstruction of the right-of-way and street at a different level.
The elevation will be 84 or 85 feet and Route One is 80 feet. The project will not be below the grade of the adjacent street.
The standards of this section have been met.

.7 Provision shall be made for the control of stormwater runoff to prevent on-site erosion, and to ensure that stormwater runoff leaves the site at the same location and is not significantly increased.
Each parcel will drain to Route One. Parcel 1 will utilize a stormwater treatment pond to control stormwater. The pond will be blasted into the rock at the toe of the escarpment. This pond will control peak flows, prior to discharging to the existing Route One ditch.
The standards of this section have been met.

.8 Sufficient topsoil shall be retained on the site or otherwise provided sufficient to cover all disturbed areas with an average depth of not less than two (2) inches. All disturbed areas resulting from the excavation and removal of lands or soils shall be graded and sloped to conform to the provisions of this Ordinance, reloamed and seeded with grasses indigenous to the area and such trees as the Board of Adjustment and Appeals may require and otherwise restored to a natural condition. In the case of topsoil removal, the upper six inches of topsoil shall be stockpiled and restored to a depth of six (6) inches throughout the site.
Based on testimony by the applicant that the drawings submitted show a topsoil level of six inches.
The standards of this section have been met.

.9 Loaded vehicles shall be suitably covered to prevent dust and contents from spilling or blowing from the load.
Based on testimony from the applicant trucks will be covered and there will be very little dust from the stone.
The standards of this section have been met.

.10 All access roads leading from the extraction site to public ways shall be treated with stone, calcium or other suitable materials to reduce mud and dust.
There will be a 50-foot crushed rock entrance in the access driveway to prevent mud from accumulating on Route One. If mud and dirt do accumulate the applicant will wash the road.
The standards of this section have been met.

410.4 A surety bond shall be posted with the Town Treasurer by the applicant in an amount and form approved by the Board of Adjustment and Appeals with the advice of the Town Manager sufficient to guarantee performance and conformity with the provisions of this Ordinance and approval of the special permit for the excavation and removal of lands.
The applicant will draft a letter of credit or surety bond for $30,000. which the Town Manager will review approve.
The standards of this section have been met.

410.5 The foregoing provisions shall not apply to any lawful use of land for the removal of sand or gravel and the quarrying of stone, existing at the time of adoption of this Ordinance provided, however (a) that no such existing operation shall expand closer to or within two hundred feet to any adjoining property line or to the line of any existing public way, (b) that no such existing operation which may be within two hundred feet to any such adjoining property line or the line of any existing public right-of-way shall be permitted to expand closer to such line or lines, and (c) existing restrictions as may have been previously provided for previous approvals shall continue in full force and effect, and (d) further provided the Board of Adjustment and Appeals shall have the authority to approve applications for the expansion of such existing pits or quarries into such areas, under the same terms and conditions as it may approve applications for new gravel pits and quarries for the excavation and removal of lands pursuant to the provisions of this ordinance.
The Board determined this standard did not apply.

410.6 This subsection shall not apply to (a) extraction necessarily incidental to construction, alteration, excavation, or grading for which a building permit has been issued, (b) to extraction from one portion of a lot for use on another portion of the same lot, or contiguous lot of the same owner, or (c) removal of topsoil from a site that is less than one acre in area during a one-year period.
The Board determined this standard did not apply.

410.7 Violations of this section of the Ordinance shall be punishable by a fine as established by order of the Town Council. Each day such violations are permitted to continue to exist shall constitute a separate violation. [Amended, effective 9/1/98]
The Board determined the Town Council would have the authority to fine the applicant for violations.
The standards of this section have been met.

Mr. Kendall motioned based on the findings and conclusions of fact to grant the request for a special permit for extraction of earth materials for Foreside Village, LLC at U.S. Route One, Tax Assessor Map R01, Lots 8 & 11 in the Office Commercial district. The conditions of approval are:


Mr. Martin seconded. VOTE: Unanimous



2. Interpretation / Variance LSH Holdings, Inc.
Rockwood Senior Housing
Cumberland Business Park
Tax Assessor Map R02D, Lot 2
Office Commercial district

Ms. McPheters presented background information as follows: LSH Holdings Inc requests an interpretation of the Code Enforcement Officers decision and a variance of ten (10) feet from the required twenty-five (25) foot building separation for senior housing at Thomas Drive on Map R02D Lot 2 in the Office Commercial (OC) District - Northern Section.

This issue was raised as part of the recent Planning Board Subdivision and Site Plan revision review of this project. During the review the Code Officer discovered that the previously approved variance expired due to the lack of substantial completion. Based upon the construction progress, the Code Officer estimated the project to be 25% complete. The applicant is requesting an appeal of that decision and, if necessary, approval of the same variance request that was granted on December 13, 2001 and December 14, 2000.

Mr. John Moody, Contractor for the Rockwood project provided the Board with a balance sheet outlining expenses to date for the project. He stated five buildings with up to 15 units have been constructed. Phase I is 90% built and has units occupied. Final paving has to be completed. Phase II is 70% done, the storm drains and final paving need to be done, and units are framed. Phase III has ground work completed. The water and sewer lines should be in place in 2.5 to 3 weeks; the blasting has already been done.

Mr. Kendall asked the Board procedurally how to proceed.

Mr. Wyman stated the applicant is asking the Board for an interpretation on whether the project is substantially complete. The Board has granted two variances, there is substantial work completed and units are occupied.

Mr. Moody stated the project was started in April 2002.

Mr. Wyman asked Ms. McPheters if the variance request had changed.

Ms. McPheters stated there are a number of buildings done, infrastructure is completed. In her interpretation she did not take into account the engineering costs, Mr. Moody provided a balance sheet. Based upon her visual inspection and the number of permits issued, she determined the project was not substantially complete. The Ordinance states a project must be started within 6 months, but does not define substantially complete.

Mr. Wyman stated there has been testimony that substantial work has taken place, and the original variance was granted because of the wetlands and ledge on the property. The developer has re-designed the buildings from quadriplexes to duplexes to increase marketability.

Ms. McPheters stated each phase of construction requires the variance.

Mr. Black asked the total value of the completed project.

Mr. Moody stated 11.6 million dollars.

Mr. Martin asked how much was currently invested.

Mr. Moody answered 4 million dollars.

Mr. Martin stated the project is approximately 1/3 complete, was there any other evidencing to show substantially complete.

Mr. Moody stated the infrastructure is 90% complete with water and sewer.

Mr. Martin asked if the Code Enforcement Officer had stopped work at the project.

Mr. Moody stated yes, and the Planning Board gives two years for build out of a project.

Ms. McPheters stated it was not likely this issue would have been addressed other than the subdivision and site plan re-vision that was submitted.

Mr. Wyman asked for testimony from the public in support of the application. There was none. Mr. Wyman asked for testimony that was in opposition, neutral or informational. There was none. The public portion of the meeting was closed.

The Board reviewed the "Practical Difficulty standards with the following findings and conclusions: The applicant had previously received a variance. There has been no material change that would adversely effect the previous findings.

Pursuant to 30-A M.R.S.A. §4353(4-C), the Board of Adjustment and Appeals may grant a variance only when strict application of the ordinance to the Applicant and the applicants property would cause a practical difficulty and when the following conditions exist. Practical difficulty shall mean that the strict application of the ordinance to the property precludes the ability of the petitioner to pursue a use permitted in the zoning district in which the property is located and results in significant economic injury to the petitioner. The applicant must document how significant economic injury would occur.
The developer has invested four million dollars into the phased project.
The Board found this requirement to be satisfied.

A. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
The need for the variance is due to the wetlands and ledge on the property, which require the buildings to be designed with reduced setbacks. The proposed changes to Phase II and III will decrease wetland impact.
The Board found this requirement to be satisfied.

B. The granting of a variance will not produce an undesirable change in the character of the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting properties;
The developer is proposing a residential community, which is more favorable to abutters than a commercial development.
The Board found this requirement to be satisfied.

C. The practical difficulty is not the result of action taken by the applicant or a prior owner.
The need for the variance is due the ledge and wetlands on the lot.
The Board found this requirement to be satisfied.

D. No other feasible alternative to a variance is available to the petitioner;
The project received Planning Board subdivision and site plan approvals; the project cannot feasibly be changed in the middle of development.
The Board found this requirement to be satisfied.

E. The granting of a variance will not unreasonably or adversely affect the natural environment; and
The project was approved by DEP; there is substantial open space and nature trails in the project.
The Board found this requirement to be satisfied.

F. The property is not located in whole or in part within the shoreland areas as described in Title 38, Section 435.
The property is not located in the shoreland zone.
The Board found this provision inapplicable.

Mr. Martin moved based on testimony and findings and conclusions and there had been change since previous findings to grant a variance of ten (10) feet from the required twenty-five (25) foot building separation for senior housing at Rockwood Senior Housing at Thomas Drive, Tax Assessor Map R02D, Lot 2 in the Office Commercial district  Northern Section.

Mr. Black seconded. VOTE: Unanimous

Administrative Matters

1. Minutes of February 13, 2003 meeting

Mr. Kendall moved to approve the minutes of the February 13, 2003 meeting as presented.

Mr. Martin seconded. VOTE: Unanimous

2. Update on Ordinance changes

Ms. McPheters stated the Town Council would hold a public hearing to consider the proposed right-of-way changes at its March 24, 2003 meeting.

3. Discussion on significant economic injury

Ms. McPheters stated the Board had been given a letter from Town Attorney, Natalie Burns, but recommended the issue be deferred until there is a full Board.

4. Accessory Apartments

Ms. McPheters reviewed sample language from another municipality for accessory apartments, and stated the sample language would be presented to the Planning Board at its March 18, 2003 meeting.

Mr. Martin voiced concern regarding renting rooms, and the owner occupied clause would be good.

Mr. Black asked how owner-occupied would be enforced.

Ms. McPheters stated that at approvals the Board could request an affidavit be filed at the registry.

Mr. Martin asked if the intent of the Ordinance was to allow in-law apartments.

Mr. Black asked which Town the sample language had come from.

Ms. McPheters stated Topsham.

The Board discussed the accessory apartment language.

Ms. McPheters stated language would be drafted for a future meeting.

Mr. Kendall moved to adjourn.

Mr. Black seconded. VOTE: Unanimous

Adjournment: 9:20 p.m.



A TRUE COPY ATTEST:





______________________________ __________________________
R. Scott Wyman, Board Chair Pam Bosarge, Board Clerk