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Minutes of the Lamoine Board of Appeals

August 22, 2004

Approved November 10, 2004

Chairman Chris Tadema-Wielandt called the meeting to order at 12:15 PM

Present were: Appeals Board members Hancock “Griff” Fenton, John Wuorinen, Chris Tadema-Wielandt, Reginald McDevitt; Edmond Bearor (Attorney for the Pettegrows), Gary Hunt (Attorney for the appellants), Anthony & Josette Pettegrow, Timothy Gott, Karen Dube (court reporter), Herbert Hodgkins, Gerald Ford, Donald Becker (CES), Kate Berry, Palmyra Lomonaco, Robert Friedman, Robert Alvarez, Paul Frederick, Warren Craft, Michael Garrett, and Stuart Marckoon (secretary to Board of Appeals).

Quorum – Chairman Tadema-Wielandt said there are four members of the board present, and that constitutes a quorum. All members agreed.

Minutes of June 17, 2004 – Chairman Tadema-Wielandt had a couple of questions regarding wording on page one. There was a short discussion on how to change that wording, but with no final resolution. He said he’d like to deal with the rest of the questions on the minutes, including addition of a few words on page 5, adding the word “he” on page 7, adding the word “Appeals” on page 8, and a spelling correction on page 9. He said the item on page one should be considered later so the tape of the meeting could be reviewed. Mr. Wuorinen moved to table the minutes. Mr. Fenton 2nd. Vote in favor was 4-0.

Continuation of Alvarez et al vs. Lamoine Planning Board regarding Planning Board issuance of Shoreland and Site Plan Review Permits to Anthony & Josette Pettegrow (Seal Point Lobster Pound).

Chairman Tadema-Wielandt said Appeals Board members Warren Craft and Jay Fowler recused themselves at the last meeting. He said all the Appeals Board members were present yesterday for a site visit. He said the public hearing begun on June 17 continues today. He said the board determined the appropriate method for hearing the appeal is a de novo hearing or a 2nd Planning Board hearing. Mr. Bearor said that was his understanding. Chairman Tadema-Wielandt said if that is the case, he would ask Mr. Bearor to proceed with the submissions.

Mr. Bearor said there were two separate applications before the board. He said the Site Plan Review application would be first, and the Board could decide whether to review that submission or not. Secretary Marckoon asked the Board if they would like their ordinance books, and handed them out.

Mr. Bearor said Donald Becker, an engineer with CES, would present the application, based on a plan drawn by Steve Salsbury. Mr. Bearor said he was not sure what the Board of Appeals had for documents, but he obtained copies of documents prepared for the board labeled Site Plan Review and Shoreland Zoning. He asked to admit the Site Plan Review booklet as Exhibit 1. Mr. Hunt said that was fine. Chairman Tadema-Wielandt noted that neither attorney had much time to review Exhibit 1. Mr. Bearor said they would have additional items in the presentation. Chairman Tadema-Wielandt asked if there were any question that the items contained in Exhibit 1 were anything but true copies. Mr. Bearor said he had no reason to doubt that. Mr. Marckoon said he made the copies from original documents. Mr. Bearor said the Board would probably hear from the Pettegrows and previous owners of the business. He asked to take 5-minutes for an overview of the case. Chairman Tadema-Wielandt said OK.

Mr. Bearor thanked the board for agreeing to the weekend meetings. He said the Pettegrows bought the property in February 2001 for the purpose of operating the lobster pound that existed on the property. He said the lobster pound was constructed by Mr. Alvarez who operated it, and then the pound was operated by Mr. Coughlin. He said the Pettegrows currently operate the pound. He said there is some disconnect with what the opponents are concerned with and why. He said it’s always been a lobster pound, and asked if the opposition was because the Pettegrows have been more successful in its operation. He said Mr. Alvarez was active in the sale to the Pettegrows and encouraged them to buy it. He said Mr. Alvarez wrote a letter that explained the reasons why the Pettegrows should finish the project begun by Mr. Coughlin.

Mr. Bearor said when the Pettegrows purchased the pound, part of the project was finished and part was not. He said the previous owners had a permit to construct the tank house project, and he would supply the Board with a copy of that permit. He said the project had to be completed to a certain percentage of its value for the permit to not expire. He said the permit did not expire because the work was performed to keep the permit alive. He asked what is the issue here. He said they think the application is for a turnaround and parking area, and not for the existing operations and structure. He said the process is just the parking area. He said he recognizes the desire to hear the appeal for the project as a whole, and said they would do that. He said the Planning Board heard the application and conducted a site visit. He said at the end of the process the Planning Board granted approval with conditions. He said the approval is part of Exhibit 1. He said the issues identified included enclosing a generator and a refrigeration unit, and taking a noise reading on the trucks. Chairman Tadema-Wielandt asked if the conditions have been met. Mr. Bearor said no, when the appeals were filed they focused on the other application. He said they would perform the conditions if required, and to be neighborly.

Mr. Bearor said the Planning Board awarded a permit, and the Appeals Board has the review and criteria sheet from the Planning Board. He said they think the Planning Board made the correct decision, and they think they proved they were entitled to the permit. He said that it’s related to the parking area and not to the other structures. He said they are reducing the amount of traffic in and out by having the turnaround area. He said when the Appeals Board was there yesterday they saw a tractor-trailer unit parked there. He said it would be loaded on Monday and return on Tuesday. He said it would stay until Thursday then go to Boston. He said if the truck couldn’t park there it would be off site, and make two trips instead of one. He said he thinks there are no issues other than traffic.

Mr. Bearor urged the Appeals Board to go through the application and the review criteria. He said the document (Exhibit 1) does not include a plan. He said he had an application supplement with the plan in the same form as what was submitted to the Planning Board, and handed that to the Board of Appeals. It was offered as Exhibit 2. He said there is a plan that is not in Exhibit 2, but has information pertinent to the application. He said that was taken from the Shoreland Zoning application. He handed that plan out and offered it as Exhibit 3. Chairman Tadema-Wielandt asked where the original mylar is located. Mr. Bearor said it was brought to the Planning Board and was signed by the members, and was filed with the town.

Mr. Bearor said he was not sure how far back the Appeals Board wanted to go. He said the Board could determine the application is complete, or start with the review criteria. Chairman Tadema-Wielandt said in light of the de novo discussion, though his preference would be to accept the Planning Board’s judgment on completeness, but it would give grounds for an appeal with a claim that the application was not complete. Mr. Hunt replied that was right. Chairman Tadema-Wielandt asked if the subsequently submitted documents, and the traffic study satisfy that they have submitted a completed application with additional information. Mr. Hunt said the Board of Appeals should make that determination. He said the traffic study was submitted after the Planning Board deliberated. He said he didn’t understand it. Chairman Tadema-Wielandt asked if Mr. Hunt recalled what else was submitted afterwards. Mr. Hunt said that was all.

Mr. Bearor said in reference to not understanding the traffic report, the actual traffic document was also submitted at the Planning Board’s request with the copies of the revised plans and a traffic impact statement from CES before the Planning Board ruled. Chairman Tadema-Wielandt asked if they were contained in exhibit 2. Mr. Bearor said no, they came afterwards. He said the question to Mr. Hunt was appropriate; if the item was not submitted, is it here today.

Mr. Wuorinen said he would be more comfortable if the Board went down the list and ticked off the items. Mr. Fenton said he was comfortable either way. Mr. McDevitt said that sounded good to him. Chairman Tadema-Wielandt said to Mr. Hunt that the hearing ought to be held de novo, which would start with a completeness review. He said the Board should err on the side of caution. Mr. Wuorinen moved to do a complete de novo review, including the completeness review. Mr. Fenton 2nd. Vote in favor was 4-0.

Chairman Tadema-Wielandt said the application for the site plan review permit lists seven items with sub items. He said they would use that to determine whether the application is complete. He said the 1st item is a fully executed and signed application. He asked if there were any question that was filed. Mr. Hunt said there was no question. Chairman Tadema-Wielandt asked if the first item is the application in Exhibit 1. Mr. Bearor said that was correct.

Chairman Tadema-Wielandt said the 2nd item is the plan. Mr. Bearor said that is Exhibit 2, which the Appeals Board did not have. Chairman Tadema-Wielandt asked if the mylars were filed, similar to a typical plan, brought in, and signed by the planning Board. He asked if both parties agreed that the copy of the deed is part of Exhibit 1. Both agreed. Chairman Tadema-Wielandt said the 4th item asks to show existing conditions, which are or ought to be items on the plan, Exhibit 3.

Mr. Bearor said on Exhibit 3 they have designated the Limited Commercial Shoreland Zone, and the balance is in the Rural and Agricultural Zone. He said it is shown as it bisects the property. Chairman Tadema-Wielandt asked if the bearings and existing property lines are shown. Mr. Bearor said the plan shows them. Chairman Tadema-Wielandt asked if sewer, septic, drains and fire hydrants are shown. Mr. Bearor said there is no sewer. Chairman Tadema-Wielandt said the plan shows the existing septic system. Mr. Bearor said the plan shows culverts in places. Chairman Tadema-Wielandt said he could see that, and the location of existing roads and rights of way. Mr. Bearor said a 50-foot wide right of way comes onto the property. He said that is on the plan. Chairman Tadema-Wielandt asked if the locations of drainage courses and wetlands were shown on the plan. Mr. Bearor said the wetlands are shown on the plan. He said the plan also depicts the floodplain boundary, and it runs along the high water line, behind the cabin toward Mr. Alvarez’s. Chairman Tadema-Wielandt said it appears none of the other enumerated items are shown. Mr. Bearor said none are depicted because he believes they do not exist. Chairman Tadema-Wielandt asked if the buildings are shown. Mr. Bearor said another plan depicts those. He said that was the plan shared yesterday. He said he needed to find that. He said it was the August 14th plan from Stephen Salsbury. Mr. Marckoon said he had a copy. Mr. Bearor said that showed the square footage of the buildings and other aspects of the property. Chairman Tadema-Wielandt said Mr. Salsbury has FFE=15 feet, and asked if that were the flood elevation. Mr. Becker said that is the finished floor elevation. The board looked over the plan.

Chairman Tadema-Wielandt noted the house and tank house are shown with elevations and dimensions, but the other two buildings on the property don’t have that. Mr. Marckoon asked if that were going to be marked as an exhibit. Chairman Tadema-Wielandt said he would like to. Mr. Bearor said it should be Exhibit 4. Mr. Hunt said that was OK. Mr. Bearor said a couple of sheds don’t have the elevations, and they are portable structures. Chairman Tadema-Wielandt asked about the garage. Mr. Bearor said the only explanation is that they were asked to give elevations on the house and tank building. Chairman Tadema-Wielandt asked if there is no FFE for the garage, should that aspect of the application be incomplete. Mr. Wuorinen said he’s inclined to accept it as complete. Mr. Alvarez asked what garage. Chairman Tadema-Wielandt said the one attached to the residence. He moved that the Appeals Board not disqualify the plan from completeness review despite the absence of the FFE. Mr. Hunt waived his objection. Chairman Tadema-Wielandt thanked him.

Chairman Tadema-Wielandt asked about the topographical contours and existing drainage. Mr. Becker said he didn’t know which ones he was referring to. Mr. Bearor said Exhibit 2. Mr. Becker said they depict watercourses. Chairman Tadema-Wielandt asked if everyone was satisfied with those. All indicated OK. Chairman Tadema-Wielandt asked if any portion of the property was in the 100-year floodplain. Mr. Becker said it is. Chairman Tadema-Wielandt asked if that was delineated. Mr. Becker said that was on the Herrick and Salsbury Plan. Chairman Tadema-Wielandt said that’s Exhibit 4. Mr. Becker said that might also be in the narrative of the original application. Mr. Wuorinen asked where it was delineated. Chairman Tadema-Wielandt said he doesn’t see that it is. He asked if there was any guidance from Mr. Bearor. Mr. Bearor said Exhibit 3 shows the floodplain as it cuts through the property. Chairman Tadema-Wielandt asked if the town has the current FIRM maps. Mr. Marckoon said it does. Mr. Bearor said the Shoreland Zoning application has a narrative on the floodplain and he would offer that as a reference. He said the reference is 11 ft NGVD 1929. Chairman Tadema-Wielandt asked if the Board had any qualms about accepting that. There were none.

Chairman Tadema-Wielandt asked about the proposed development activity. Mr. Bearor said that was part of Exhibit 1, where it defined the project. Chairman Tadema-Wielandt read from the exhibit the section that describes the purpose. Mr. Wuorinen asked if the 3 or 4 box trailer reference is still accurate. Mr. Bearor said there are only two there now. He requested that Chairman Tadema-Wielandt read the section, which he did. Chairman Tadema-Wielandt asked if the application was for a parking and turnaround area. Paul Frederick said the application to the DEP said the purpose of the parking lot was to facilitate an expansion of the business. Chairman Tadema-Wielandt said that which he read he thinks suffices, and asked if the Board agreed. Mr. Wuorinen said it uses the word expanded in particular, and he guessed that referred to the parking area. Chairman Tadema-Wielandt said that was his interpretation that this was an application to expand the parking lot, not the business.

Chairman Tadema-Wielandt went on to item 6, proposed structures. He said it appears to be a gravel parking area and turnaround. Mr. Wuorinen said he agreed with that, and it was shown on all plans given. Chairman Tadema-Wielandt asked about outdoor lighting. Mr. Bearor said he didn’t remember that coming up. Chairman Tadema-Wielandt asked if there is lighting of the parking area. Mr. Bearor said no. Chairman Tadema-Wielandt asked if the light they saw yesterday was by the pound area. Mr. Bearor said yes. Chairman Tadema-Wielandt asked if there were no lights in the parking area. Mr. Bearor said none, except for the lights on the trucks. Chairman Tadema-Wielandt asked if that was in the Site Plan Review Ordinance. Mr. Bearor said it would be tough to show other than the front of a truck. Mr. Wuorinen said he thinks the intent of the ordinance is satisfied. The rest of the board members agreed.

Chairman Tadema-Wielandt asked about the setback dimensions shown on the exhibit. Mr. Bearor said they paid particular attention to the setback from the normal high water mark. Chairman Tadema-Wielandt and Mr. Becker discussed the meaning of “normal high water” and “mean high water”. Mr. Becker said the terms are interchangeable.

Chairman Tadema-Wielandt asked about landscaping and buffering. Mr. Bearor said those are shown in Exhibit 3. He said the proposed buffer on the roadway coming in is shown, and some landscaping notes are on the left hand side. Chairman Tadema-Wielandt asked if all the buffering is shown in Exhibit 3, or if there is more on other plans. Mr. Bearor said he didn’t believe there was any other plan; he said the crosshatching shows where revegetation will take place. Chairman Tadema-Wielandt asked about any subsurface wastewater disposal system, and noted there is none, and no water supply. Mr. Bearor said none is proposed. Chairman Tadema-Wielandt asked about waste disposal facilities. Mr. Bearor said there are none. Chairman Tadema-Wielandt asked about machinery. He said the site visit made the board aware of a generator on the North side of the pound building. Mr. Wuorinen asked how that was pertinent to parking. Chairman Tadema-Wielandt said the noise from truck refrigeration units might be an issue. He said this is nothing more than a completeness review, and the truck noise is not like the generator and refrigeration systems, and is not part of the submission. Mr. Wuorinen said the presence of trucks is inherent to parking lots and usage. Chairman Tadema-Wielandt said as with outdoor lighting, this refers to permanently installed machinery. He said the application says nothing about that except 58-foot box trailers. Mr. Wuorinen asked if that is inherent to the use of the parking lot. Chairman Tadema-Wielandt said yes. Mr. Wuorinen asked if that included refrigeration. Mr. Hunt said Section 1 would be fixtures not including trucks. He said the noise issue could come in under Item 6 and with additional information. Mr. Fenton said he agreed with Mr. Hunt.

Mr. Alvarez said the beginning of the ordinance, under applicability, addresses only the parking lot issue. He referred to page 4 of the ordinance, Item 2. He said the last decision from the Board of Appeals applied to the expansion of the building. Chairman Tadema-Wielandt said if that were the case, the Board would get to that. He said in terms of the application for the parking area, they would get to that at some point. He asked if the application were complete in regard to machinery and noise. Board members said it was OK.

Chairman Tadema-Wielandt asked about outside storage. Mr. Bearor said there is no outside storage. Chairman Tadema-Wielandt asked about the schedule of construction, and said it’s pre-existing and there can’t be a schedule. Chairman Tadema-Wielandt asked about special features in Section 4-E, where drains and water course impact is minimized. He asked Mr. Bearor where that information is located; if it were in the erosion control notes in Exhibits 3 and 2. Mr. Bearor said in the submission made to the Planning Board, mention was made of the DEP Permit by Rule, and in that was the description of erosion control measures. He said it was not part of Exhibit 1. Chairman Tadema-Wielandt asked if that might be in the Shoreland Zoning application. Mr. Fenton asked if it was in Exhibit 2 under 3.02 maintenance. Chairman Tadema-Wielandt said there is a fairly comprehensive description of those portions of Exhibit 2 that relate to those items.

Chairman Tadema-Wielandt asked about storm water runoff. He said to see Section 3 where references are made to watersheds and runoff into each of those. He asked if that was complete. Mr. Wuorinen agreed that it was.

Chairman Tadema-Wielandt asked about Item 6, additional information required by the Board. Mr. Wuorinen said items I & II. Chairman Tadema-Wielandt asked if there was a soils report. Mr. Bearor said no, they did not prepare one. Chairman Tadema-Wielandt asked if it were relevant. Mr. Alvarez said in a way a soils report was prepared. He said when the DEP stopped the project, they had to hire a soil scientist. Mr. Bearor said they were never stopped by the DEP, and obtained permits necessary from that agency prior to beginning the project. Chairman Tadema-Wielandt asked if there was any cease and desist order. Mr. Alvarez said technically there was no order. He said the DEP person was there and said they were operating in a wetlands area, and asked them to stop, delineate the area and apply for a permit. He said it was caught early on by John Cullen of the DEP. Mr. Hunt said that is what preceded Mr. Salsbury’s application. Chairman Tadema-Wielandt asked if there was a soils analysis. Josette Pettegrow said John Cullen tested before he issued a permit. She said they never had any stop and desist order. Chairman Tadema-Wielandt asked if it is the applicant’s position that the soil test is not required. Mr. Bearor said that was their position. He said that is generally used for large, multi-family homes to see if the soils might fail. He said the Planning Board did not see a need for it. Mr. Becker said a High Intensity Soil Survey is generally only used for a class “B” Shopping Center. He said a primary soil survey is general used for crops, and the requirement dates back to the 1950’s. He said some applications in residential cases might use such a survey. He said he would advocate against a study because it is very expensive and is of no use to either the applicant or the Board. A short discussion followed on whether the DEP requires such a test. Mr. Becker said the DEP does not, and Mr. Hunt said he was not in a position to dispute that.

Chairman Tadema-Wielandt said they’ve gotten through the storm water and erosion control plan, and as it is relevant to the application, it is present. Mr. Wuorinen agreed. Chairman Tadema-Wielandt read the next requirement, and agreed it was not the case here. He asked about a utility plan. Mr. Bearor said there was none. Chairman Tadema-Wielandt asked about a landscaping plan, and said he believed there is one in Exhibit 3. Mr. Bearor said there is.

Chairman Tadema-Wielandt asked about proposed roads and sidewalks, and said there are no proposed roads. Mr. Fenton said there was a cross-section with the plan. Chairman Tadema-Wielandt asked if there was a proposal to increase the width of the right-of-way. Mr. Bearor asked if he meant on their property or any portion. Chairman Tadema-Wielandt said anywhere. Mr. Bearor said no. There was a short discussion about a cross-section of the parking lot. Mr. Wuorinen said it’s a moot point, the parking lot is complete. Chairman Tadema-Wielandt said the number of trips per day seems to be moot as well.

Mr. Alvarez asked what evidence of financial capacity is shown. Chairman Tadema-Wielandt said the project is done, and the thrust of that requirement is so the town is not stuck with partially completed projects. He said he and the rest of the board believe it’s moot, and there is no need for a letter from the bank. He said Exhibit 1 shows the appropriate fee accompanied the application. He said that’s the list of items that comprises the completeness review.

Mr. Wuorinen said the number of trips per day is contained in Item 6H. Chairman Tadema-Wielandt said that is moot as well as it relates to the construction of the project. Mr. Hunt said he didn’t understand. He said he thought the estimated traffic would be associated with the development, and referred to Items 6H, J9, and J10. He asked if the discussion indicated it was interpreted as traffic associated with the building and parking lot. Chairman Tadema-Wielandt said yes. Mr. Hunt asked to look at Section J9. He said developers are supposed to produce traffic movement information during and following construction. He said that’s one of the issues, the increase in traffic that has occurred and the lack of any limits on increasing the traffic in the future. He said it’s not just an application to build a parking lot, but also to use it in conjunction with a business. He said that’s tied in with a way to expand the number of hours and the number of employees. He said it’s not just an inanimate parking lot. He said the Appeals Board could later determine whether it’s an industrial use. He said the Planning Board was looking at the whole site, not just confining the review to a parking lot.

Mr. Bearor said he thinks the amount of traffic has been reduced, but the volume of business might be more. He said they did submit material in response to the review criteria, including a statement in regard to Sections J9 and J10. He submitted the traffic statement as Exhibit #5. He said that is a copy of the traffic information in Exhibit 1. Chairman Tadema-Wielandt asked if this is a narrative summary. Mr. Bearor said no, it’s their response to the Planning Board request that they provide this information. Chairman Tadema-Wielandt asked if was supplemental to the tables in Exhibit 1. Mr. Bearor said not, they submitted the tables on September 2nd, and this was before that.

Mr. Hunt reviewed the submission. Mr. Wuorinen asked if someone could interpret the wording of Exhibit 5. He asked what is a “passenger car equivalent”. Mr. Becker said that term is defined by the US Department of Transportation and the Maine DOT. He said a truck equals two passenger cars. There was a short discussion on passenger car equivalents.

Kate Berry, a neighbor of the lobster pound, said it’s not only the Trenton Bridge trucks, but there are quite a few Canadian trucks, and they’ve not been mentioned at all. Chairman Tadema-Wielandt said he expects that Mr. Becker included all traffic in his study. Mr. Becker said he did, and did not draw any distinction between trucks. He said he used the empirical criteria established by the Institute of Traffic Engineers. He said his numbers appear to be higher than the numbers generated by the bill receipts, but appears to be consistent. He said it’s intended to be a good prediction of actual traffic, and in this case appears to be overstated. Mr. Wuorinen asked if Mr. Becker’s study represented a formula. Mr. Becker said that was correct.

Chairman Tadema-Wielandt asked if there was any more data required or if Mr. Hunt took issue with the Appeals Board’s position on traffic generation. Mr. Hunt said he did not care about the traffic generated by construction. He said the board should have the data on how many trucks come in and out. He said it’s a seasonal business. He said on some days, there are not trucks coming in. He said this is a significant basis for appeal. He said the data is not relevant because the formula is not site specific. He said there is other more relevant empirical data. He said the table is contrary to what the DEP application says. Mr. Fenton said this is a completeness review, and this section is to complete the requirement under J39. Chairman Tadema-Wielandt said he would like to complete the completeness review.

Mr. Becker said this is the only accepted means of projecting traffic impact in Maine. Chairman Tadema-Wielandt asked if there was more information to satisfy that section of the Site Plan Review ordinance. Mr. Hunt said it was difficult to understand and needs more explanation. Chairman Tadema-Wielandt asked if the submission included a complete explanation. Mr. Bearor said he did not have a written statement. He said Mrs. Pettegrow explained the document to the Planning Board. He said this covers from July 2001 to June 2003. He said you could get a sense of the number of trips per day.

(Audio Tape 1 ends at this point, audio tape 2 begins)

Mrs. Pettegrow said she prepared a compilation of the trips made by trucks with product. She said a “1” is a trip in and out. Chairman Tadema-Wielandt said that’s a round trip. Mrs. Pettegrow said the figures were obtained from their office using bills of lading and slips. Mr. Wuorinen asked about the columns. Mrs. Pettegrow said those indicate where the trips go, and the Appeals Board did not need the proprietary information.

Chairman Tadema-Wielandt asked if the totals indicate the impact on Seal Point Road. Mrs. Pettegrow said that was right. Chairman Tadema-Wielandt asked if he were to sit by the side of the road, and the figures said “3”, would he see six trucks. Mr. Fenton asked about loaded vs. empty. Discussion followed about the type of traffic measured. Mr. Bearor asked Mrs. Pettegrow if there were any trips generated by the business that were not on her report. Mrs. Pettegrow said the state inspector arrives once a year, and the Department of Marine Resources does water quality testing. She said that was not a result of the lobster pound. Mr. Bearor asked if there were retail sales. Mrs. Pettegrow said they do not do that. Mr. Fenton asked if fishermen deliver their product there. Mrs. Pettegrow said no, they deliver elsewhere and the lobster is trucked to the pound. Chairman Tadema-Wielandt asked if the whited-out area is proprietary information. Mrs. Pettegrow said it was.

Mr. Hunt asked if the report included UPS and Federal Express. Mrs. Pettegrow said they don’t go there, and there are no retail people. She said some folks do show up, but they don’t serve those requests. Anthony Pettegrow said anything that is delivered comes to their headquarters in Trenton. He said they bring in items on their own trucks so they have control of the truck and the road.

Robert Friedman said they would offer evidence compiled over two days. Chairman Tadema-Wielandt said that he would have an opportunity to do that at a different point in the hearing. Mr. Alvarez said the Pettegrows have done a lot to cut down on the wild driving, and he appreciated that. Mr. Hunt asked about the cardboard boxes in the tank room, and whether they are loaded in the trucks shown on the table. Mr. Pettegrow said they were. Chairman Tadema-Wielandt asked if they come in on the trucks show in the traffic report. Mrs. Pettegrow said yes. Mr. Pettegrow said to gather the information, they took their customer list and the bills of lading and added up each day. Chairman Tadema-Wielandt said when the Appeals Board was there Saturday, there were 7 trucks of various configurations. Mr. Pettegrow said they have one more small truck. Chairman Tadema-Wielandt asked if there is one truck in Trenton all the time, and the rest at Seal Point. Mr. Pettegrow said yes. Chairman Tadema-Wielandt asked if there were any other trucks elsewhere. Mr. Pettegrow said no. Chairman Tadema-Wielandt said he thinks all the information is there.

Mr. Wuorinen moved to accept the application as complete. Mr. McDevitt 2nd. Vote in favor was 4-0. The meeting recessed at 2:35 PM and resumed at 2:55 PM.

Chairman Tadema-Wielandt said the Appeals Board has determined that the application is complete, and now it’s time for the applicants to make their case. Mr. Hunt said with respect to Section G, he wondered about the applicability of Item 2, and he wondered about whether enlarging the building greater than 2,000 square feet within 5-years should be included in the application. He said the ordinance was not in effect when the Pettegrows purchased the property, but did go into effect before they finished the construction of the building. He asked if the application should include the construction of the building. He said on the first Shoreland appeal, it was said that should have been the case.

Chairman Tadema-Wielandt read from the conclusions of law and findings of fact from April 7, 2003 and said it appears the Board of Appeals found the Planning Board had authority to review the parking lot based on the same criteria proposed to be constructed in the Shoreland Zone, has authority to consider the effect the use of the parking lot has as a factor in the expansion of a commercial use of the property, and has the authority to examine the intensified commercial use of the property as evidenced by the activity. He said he didn’t know if they actually found those things, but in our capacity as a Board of Appeals, we found the Planning Board had that authority under their rules. He asked Mr. Hunt if he was asking the Appeals Board to determine whether the Site Plan Review is applicable to several subsections of Section G. Mr. Hunt said, right, not just dealing with the parking lot, but also with the increase in business, the expansion of the structure that was in existence when they bought the property which was arguably permitted prior to enactment of the this ordinance. He said the Board should look at what was there when the Pettegrows purchased the property and the expansion of the tank room. He said the expansion of the tank room subsequent to their purchase should have required site plan review.

Mr. Bearor said there is no question the prior owner applied for and received approval to construct the building. He said there is no dispute the pound area had been built prior to the purchase. He said he didn’t see how completion of a permitted activity is implicated by Section G2. He said it’s not implicated because that section says you shall get a permit if you are going to enlarge a non-residential structure by more than 2,000 feet of ground coverage. He said that structure was already there. He said the permits needed were issued to the former owner. He said the approval of the town to continue with the work based upon the fact it was substantially complete, came with a letter written by Mr. Alvarez and signed by Mrs. Pettegrow. If anyone objected to the town’s actions, they had a certain amount of time to act on that. He said no ever appealed the issuance of that permit or the actions of the town to continue that permit. Chairman Tadema-Wielandt asked if that was the permit for the tank room. Mr. Bearor says yes, that the work could continue. He said that issue is not before this board today as a result of any application submitted by the Pettegrows. He said the activity is done, and the time to appeal that activity is gone. He said this section of the ordinance is not applicable because the ground coverage was already there. He said he appreciated trying to drag all this in, but it’s not before this board, and it won’t be unless someone tries to take some sort of enforcement action. He said the expansion of the parking area is the only thing before this board. He said the issue of increasing business impacting the surrounding area might be before the board. He referred to a case he was involved in concerning the Knox County Airport, which would create greater business because of more plane parking. He said likewise with this project, they’re not increasing their business. He said if they’re told they can’t do this any longer, the number of truck trips will increase, and it’s an unregulated activity. He said it’s similar to the store down the road doing something to increase business by 50%; it’s not something the town needs to deal with. He said he didn’t see this as being applicable to what’s before the board. Mr. Hunt said he disagreed.

Chairman Tadema-Wielandt asked if Mr. Hunt contends the floor area of the building was increased. Mr. Hunt said the footprint of the building was not increased. Mr. Alvarez said the building was to cover the pad. He said it actually has increased the floor area. Chairman Tadema-Wielandt asked if the footprint of the building is bigger than the original permit. Mrs. Pettegrow said it is not. Mr. Alvarez said the original building is over the top of the walls, but he’s unsure if it is greater than 2,000 square feet.

Mr. Fenton said at a de novo hearing you can bring up items that were not originally discussed. He said Mr. Hunt thinks this applies, and it’s up to the Board to make a determination if it does or not. Mr. Wuorinen said he agreed with Mr. Fenton. Mr. Bearor said if the Board were going to consider this argument, he would like the 1996 application for a permit before the board. He said it shows clearly it’s for a 30x100 foot building. Chairman Tadema-Wielandt asked if he would give that. Mr. Bearor said the application is from a prior owner. The application was marked Exhibit 6. Mr. Bearor said there are handwritten notations on there from Mrs. Pettegrow. Chairman Tadema-Wielandt said that is a copy of a copy, not of the original. Mr. Wuorinen said the building is wider than shown. Mr. Bearor said it’s 39-feet wide, including a 9-foot walkway, about 900 additional square feet. Mrs. Pettegrow said they’ve added no concrete to the footprint. She said everything is as it was when they purchased the property. Mr. Bearor said even if they had expanded, the horse has left the barn, and it’s not on appeal. He said the facts are not as described by the opponents.

Chairman Tadema-Wielandt said if you look at the plan on back, it shows the tank is 30-feet wide then it shows six feet and then 3 feet, and shows the entire thing covered by the roof. He said Mr. Bearor has a point, and it appears this is a substantially grandfathered structure. He said the completion by the Pettegrows did not result in expansion of the ground floor area. He said they may have changed the roofline, but they did not change the footprint. Mr. Fenton said the footprint is the same. He said the roof is a sketch. He said as it applies to G2, it’s not pertinent in this case. Mr. McDevitt said he concurred.

Chairman Tadema-Wielandt said he didn’t think they could go back to that. Mr. Hunt said the decision in a previous appeal gave the Planning Board the right to go back. He said it seems this is a permitted structure, and the time for appeal is long past. He said equity would not permit the board to consider it. Mr. Hunt said there is no evidence there had been a substantial start, or 30-percent of the cost expended. He said there is no information about completion and the cost at purchase. He said there was not only the roof, but filtration, and one needs to know the total cost, and how much Coughlin spent, and how much the Pettegrows spent.

Mr. Alvarez said the building is better than what was in the plan. He said it still doesn’t address the use of the building. He said the purpose of the Site Plan Review is to control activities growing without constraints. Chairman Tadema-Wielandt said he understands, but he didn’t think the Board is there yet. He asked if Mr. Hunt was suggesting that if the board finds completing a greater percent than permitted, then we, acting as a planning board, must tell the owner to remove it. Mr. Hunt said he was not suggesting that. He said the building is better than proposed. He said it’s the activity that the site plan review seeks to regulate, not the construction of the building. He said the building is static, the activity fluctuates. He said that’s the purpose of the ordinance. He said when the Pettegrows purchased the property, they had a partially completed building. Chairman Tadema-Wielandt asked if he was suggesting the Pettegrows had a right to buy, but use only as a defunct lobster pound. Mr. Hunt said the addition of the water controls expanded the use.

Chairman Tadema-Wielandt said Section G2 is not applicable. Mr. Hunt said they were not going to scrutinize the expansion of the building. Chairman Tadema-Wielandt asked if when Mr. Coughlin owned the property, they maybe had 6-trips a week, and now that many trips come in a day. He said the expansion of the tank building is not something the Board may consider. He said the permit to build was issued, and the appeal period had passed. He said even if it is too big, it’s still too late. Mr. Hunt asked if the chair was drawing a distinction between the expansion of the building and the expansion of the use of the property. Chairman Tadema-Wielandt said yes. Mr. Hunt said his clients are concerned about the expansion of the use. Mr. Bearor said since it generates a record, Mr. Hunt said there was no record of substantial completion. He said he wanted to submit items for the record, and handed Exhibits 7 and 8. Exhibit 7 is a hand written letter, and Exhibit 8 is a typewritten letter. He suggested the handwritten document is in Mr. Alvarez’s handwriting. He said Mr. Alvarez was anxious to see the Pettegrows purchase the lobster pound. He said the typed letter is written as if Mrs. Pettegrow was saying it, and he read from the letter. He said Mrs. Pettegrow’s typed version is close to the handwritten version. He said the importance is to identify the flip-flopping going on. He said the opponents say it was 75% complete at the time of purchase. Chairman Tadema-Wielandt said they would accept Exhibits 7 & 8 without objection. Mr. Hunt said there was no objection.

Mr. Friedman asked if the permit said the tank house is accessory to the main business which is a lobster pound. Chairman Tadema-Wielandt said yes. He said he didn’t think the Appeals Board needs to get into this issue. He said it’s important, perhaps, to consider this in relation to the increased scope of activity. He said he didn’t think the Board could consider the issue. Mr. Fenton said if the Board could, they would find that everything was in order. He said he would agree that it was properly done. Chairman Tadema-Wielandt said he didn’t think they could consider the matter because it’s beyond the scope of the Board. Mr. Wuorinen agreed. Chairman Tadema-Wielandt moved to find the construction completion of the tank house as it relates to the permit issued is not within the scope of this hearing. Mr. Wuorinen 2nd. Vote in favor was 3-0, Mr. Fenton abstained.

Mr. Bearor said he found in Exhibit 1 a letter addressed to the Planning Board from Mr. Friedman and Palmyra Lomonaco. He said he was not aware this was treated as an appeal, and would suggest that it not be treated as part of this record. Chairman Tadema-Wielandt said it is so noted.

Mr. Bearor said he wanted to discuss the review standards. He said the Planning Board previously found in favor of those standards. He said the first is that the landscape be preserved in a natural state. He said the Planning Board found they met that standard, that it would preserve the landscape. He said they’ve proposed revegetation. He said he would like to amplify that and have Mr. Becker describe Exhibit 3. Mr. Becker said some of the plantings have already been made, and pointed out the plantings and changes. He said depending on how the hearing turns out, they may have to produce other plans to comply with the Planning Board conditions. Mr. Bearor said the plan before the Board of Appeals is the parking area. He said they’re not trying to hide tall buildings. He said it meets the standard of enhancing the landscape.

Chairman Tadema-Wielandt asked if it would be easier to keep track item by item. He asked how much tree removal took place in the parking area. Timothy Gott said he didn’t take any trees out; they were gone when his company got there. Chairman Tadema-Wielandt asked Mr. Gott if he didn’t see any trees. Mr. Gott said no. Mr. Alvarez said a logger operation took them down. Chairman Tadema-Wielandt asked if he knew how many were removed. Mr. Alvarez said he has an aerial photo. Chairman Tadema-Wielandt asked if this area were entirely wooded. Mr. Alvarez said when the Pettegrows arrived it was not wooded. He said the previous owners cleared the area to build a house, and that’s when the Pettegrows arrived. He said that’s borne out in Steve Salsbury’s original DEP submission. Chairman Tadema-Wielandt said that some trees were removed prior to purchase. Mr. Alvarez said yes, but the stumps were still in place. Chairman Tadema-Wielandt asked if additional trees were taken down. Mr. Alvarez said certainly, the original DEP application had pictures. Chairman Tadema-Wielandt asked if Mr. Alvarez had aerial photos to show the board. Mrs. Pettegrow asked what the date was. Mr. Wuorinen said May 14, 1996. Mr. Alvarez said it shows where the Chamberlains started clearing. Chairman Tadema-Wielandt said the image is from an on-line source. Mr. Fenton asked about the date of the sale. Mr. Bearor said February, 2001. Mr. Fenton said he was a friend with the Chamberlains. He said he did quite a bit of tree removal where the tractor was yesterday. He said that area is much different. He said they spent quite a bit of time one winter burning trees. He said they later cleared a lot of woods, and Mr. Chamberlain showed him where they were going to put the house. Ms. Lomonaco said Mr. Fenton was correct, and the Chamberlains had cleared for the septic and a house, and some additional clearing was done for the parking lot.

Chairman Tadema-Wielandt said the DEP permit was found in the Shoreland Zoning book. Mr. Bearor said Mrs. Pettegrow was going to amplify the tree cover. Mrs. Pettegrow said the big trees had been removed. She said they removed smaller trees such as jack firs and scrub spruce. She said the removal took place in the area between the parking lot and the corner to turn onto the property. She said that area had been cut dramatically. She said she has since planted some trees. She said the old wood was stacked up there, and has since been removed. She said they cut about 5 maples trees that were into the power line. She said Mr. Alvarez had expressed concerns about the trees in the power lines. She said the trees removed in the parking area were scrubs – about 12 to 14 feet tall. Chairman Tadema-Wielandt asked about the trunk diameter. Mrs. Pettegrow said about a 3-inch diameter. Chairman Tadema-Wielandt asked Mr. Gott if he did the grubbing. Mr. Gott said yes, and there were some decent size trees that had been cut for a while. He said they did cut an odd tree. He said when they got the DEP permit, the trees were gone. He said they ended up in a mess because Steve Salsbury was supposed to get all the permits, but only got the DEP permit. Mr. Pettegrow said Bangor Hydro suggested they remove the maple trees. Mrs. Pettegrow said she begged to leave what is there. Mr. McDevitt said the story seems straightforward.

Chairman Tadema-Wielandt asked if there were anything regarding maintaining and preserving the wetlands other than that set forth. Mr. Bearor said the only thing that could damage the wetlands is erosion of the gravel from storm water runoff. Mr. Becker said the greatest extent of protection is that they know they are there, and there is no proposal to alter any more than already occurred. He said they put the parking area a little further south than it might have been otherwise to minimize the impact. He said there are no special provisions for continued protection. Chairman Tadema-Wielandt asked there were any consideration of introduction of diesel fuel. Mr. Becker said it drains toward the pound, and does not drain toward the wetlands, and the road is a buffer to the pound. Chairman Tadema-Wielandt asked if there were anything in the plan to minimize a spill. Mr. Becker said there was no spill prevention and containment plan. He said there was not enough material to warrant that, and they were not required to do so. Chairman Tadema-Wielandt asked if some of the design would minimize that. Mr. Becker said the parking area is flat, and it drains away from the wetlands. Mr. Wuorinen asked where a spill would end up if it migrated toward the tank building. Mr. Becker said it would go to the west, and enter the road, then the trees, and then to the pound. Mr. Wuorinen asked what happens after it gets to the pound. Mr. Becker said there are no sources that would get to the edge of the pound. Mr. Pettegrow said he didn’t understand how there could be a fuel spill. Mr. Gott said 100 gallons of fuel would never get to the edge of the parking area. Mr. Becker said it would be easy to get to and clean up. Chairman Tadema-Wielandt said it’s not likely to get in the Pettegrows well. Mr. Pettegrow said they have a facility in Winter Harbor where they have fuel and they have a contract with Clean Harbors. Chairman Tadema-Wielandt asked if it got to the pound, would that act as a barrier. Mr. Becker said it wouldn’t act as a barrier, but they would be required by law to clean it up. He said there is no source of significant volume.

Chairman Tadema-Wielandt asked if they are required to have a discharge permit from the tank to the pound. Mrs. Pettegrow said no, it is a complete flow through system. She said there is nothing not natural. Mr. Pettegrow said the lobsters are feeding in the tidal pound; they don’t feed in the tank. Mr. Alvarez said in the summer it’s a closed system, filtered and cooled. He said the filters have to be back flushed. He said that back flush goes out a discharge pipe. Mr. Bearor said it does not require a discharge permit. Chairman Tadema-Wielandt asked Mr. Alvarez if he ever operated the pound. Mr. Alvarez said he did for 14-years, but had no tank room. He said it was natural impoundment. He said the Pettegrows are perfect housekeepers about using contaminants.

Mr. Fenton asked how truck deliveries in and out could occur with the previous owners without a parking lot. Mr. Alvarez said the trucks came in the driveway to his house and backed down to the pound, then drove out again. He said there were very few trucks. He said they handled about 120,000 pounds a year, and the Pettegrows handle about a million pounds. He said the pound did fine for 14-years without a parking lot. He said there was less volume. Chairman Tadema-Wielandt said the primary difference between Mr. Alvarez’s operation and the Pettegrows is volume. Mr. Alvarez said yes, and the size of the trucks. He said the big objection is the volume of trucking coming down the road. He said the noise could be dealt with.

Chairman Tadema-Wielandt said the Board ought to decide if review standard #1 is satisfied by the application. Mr. Wuorinen asked if the Board could focus their attention by identifying those parts that don’t have anything to do with the present application. Chairman Tadema-Wielandt said as they go through the general review standards, that will become apparent. Mr. Fenton moved to find that standard J1 has been met by the application. Mr. Wuorinen 2nd. Vote in favor was 4-0.

Standard # 2 – Mr. Bearor said it talks about the relation of the proposed building to the environment, and read the standard. He said the application is about a gravel parking area, not a structure. He said if for review purposes the board chose to view this is a structure, it fits harmoniously. He said they have 10.5 acres, and it’s not near a property line. He said the Planning Board found buildings permitted were compatible, and this is not a building or a structure. He said the site visit and the plan speak for themselves.

Chairman Tadema-Wielandt said it’s now more than a lobster pound; there is a permitted residence on the site. Mr. Bearor said the owners say its fits in nicely. Mrs. Pettegrow said to operate a pound, you practically need owners' presence due to animals and piracy. Mr. Alvarez said the house has been a complete benefit to the site. He said it has quieted the operation down considerably. He said he’s happy they’re living there. Chairman Tadema-Wielandt said the question is whether the residence was complete when the Planning Board made their finding. Mr. Bearor said it was. Mr. Alvarez said Mr. Bearor was correct that the parking lot is not a building. He said the structure issue should apply to the tank room building.

Mr. Fenton asked if in Lamoine a driveway or a parking lot is a structure. Mr. Alvarez said not in this ordinance. He said there should be some way to address truck traffic. Mr. Bearor said there are ways to do that, but they are not before this board. Chairman Tadema-Wielandt said if they were to consider the tank building under this review standard, and he didn’t know that the Board could, it would be a pre-existing structure. He said he didn’t think it is relevant under this section. Mr. Alvarez said to him it speaks to the problem. Mr. Wuorinen said the appropriate time to consider that is under the level of activity, not under section J2.

Mr. Hunt said in looking through the ordinance, there are definitions of permitted uses and he read them. He said the districts are defined on the land use map. He said this has been discussed before. He said he is taking the position that the activity engaged in this business has morphed into an industrial use. He said they could argue whether it fits the definition of industrial. He said this might be the place to talk about this particular issue. He said if the parking lot is used in conjunction with an industrial activity, the parking lot is an industrial use and it would not be permitted. Chairman Tadema-Wielandt asked if this is the proper section to consider the expanded use. Mr. Hunt said to get through the review, the Board has to agree it is a permitted use. He said if the tank building were not used to the same intensity, it would not be industrial. He said if the activity has increased and the characteristics have changed, then what was once not industrial can become industrial. He said the board’s job would be to set such conditions to cause it not to be industrial, not cease all activity, but put some curbs put on the activity in some way to not cross the threshold, and be put back to permitted commercial activity. He said J2 might not be the place to deal with that. He said if this were a gas station, you wouldn’t get this far in the review standards. He said that’s what happened with the Carlton Johnson application.

Mr. Bearor said the Planning Board rejected the argument that this was an industrial use. He said he didn’t know how you could make an argument with a straight face this is an industrial operation. He said if it is, then that grocery store on the corner is an industrial operation. He said it makes no sense, even if it were and industrial use, they could continue to operate, and they could not use the parking lot, and there would be more traffic on the road. He said it’s not an industrial use, and virtually any commercial activity with packaging will be found industrial and a lot of businesses will find out they’ve become an industry. He said whether it’s a preliminary or end determination, that’s the board’s call. He said the Planning Board interpretation is due some consideration from the Appeals Board. Chairman Tadema-Wielandt said he’s inclined to agree with the assertion that J2 is not where this matter will be decided. He said he’s not sure he agrees with the assertions relative to industrial as that term is defined. He said the Board would get to that.

Mr. Friedman said in regard to the appeal he and his wife made, it’s pertinent now and he would like it to be included in the consideration. Chairman Tadema-Wielandt said he didn’t see why the substance of what’s in there couldn’t be addressed. He said it’s not the formal appeal. He said when they get to the points raised in the letter, the Board will hear those. Mr. Alvarez said perhaps this isn’t the place to address it, and if you state you will address it, you could move on. Chairman Tadema-Wielandt said they’re talking about the parking lot in relation to section J2. He said as the planning board said, it’s as good as it could be. He moved to find the application meets the review standard #2. Mr. Fenton 2nd. Vote in favor was 4-0.

Chairman Tadema-Wielandt asked how long the parties were prepared to go. He asked if there is anything here they need experts for, and in order to get that out of the way, they could take things out of order. Mr. Bearor said many of the items would require experts. He said the next one (traffic and parking) would. He said they could try to pluck them out if you would like. He said they would proceed as long as everyone is prepared to slug it out, but recognized they would not get through everything. He said the Shoreland Zoning application would not be as complex. He said he did not feel this review could be completed today. Mr. Hunt said there are lots of subsequent sections that don’t really apply, and with a 5-minute break they could eliminate a lot of discussions on a bunch of them. Chairman Tadema-Wielandt said if the attorneys could agree on the sections that don’t apply, the Board could. Mr. Bearor said there is a planning board member here, and he didn’t want to make him stay longer than wanted. Michael Garrett said everything the Appeals Board has requested is in writing. The meeting recessed at 4:40 PM, and resumed at 4:57 PM.

Minutes Clarification – Mr. Marckoon played the tape of the June meeting, and agreed to clarify the minutes with the wording that is on the tape.

The hearing resumed at 5:02 PM

Chairman Tadema-Wielandt said counsel had a chance to discuss the review standards and come to agreement. Mr. Bearor said the Board has a right to decide whether they want to hear the items. He said the Board finished with section J2, and with respect to the remaining review criteria, he understands Mr. Hunt would like to address the board on vehicular access (Criteria 3) and Items 9 and 10. Mr. Hunt said that is correct. He said the rest of the items on Number 3, only the focus on traffic impact, along with review Criteria 9 and 10. Chairman Tadema-Wielandt said that Section J, 3, b; 9 and 10 are the areas of disagreement. He said 3a is not in disagreement. Mr. Bearor said the only issues are 3b, 9 and 10. Chairman Tadema-Wielandt said that 4, 5 and 6, etc are not in disagreement. Mr. Bearor said there was no challenge to 4 and 5. He said on 6, Mr. Hunt wants to be heard. Mr. Hunt said 7,8,9,10, 11,12,14,15, 17,18, 19 and 20 are all categories they’re willing to agree that the Planning Board findings are not challenged. He said the Board of Appeals is entitled to look at things on their own and make their own findings. He said there is nothing wrong adopting something from the Planning Board. He said if the appellant and appellee agree, they won’t bring it up later on. He said he doesn’t want to make experts make presentations on things they’re not going to object to.

Chairman Tadema-Wielandt said there is disagreement on #3 vehicular access, #6 buffering and screening, #13 (noise), and #16, and not all in #3, just b. 9 and 10. He asked if they were prepared with the vehicular access section. Mr. Bearor asked if the Board of Appeals has accepted there is no challenge to the Planning Board findings. Chairman Tadema-Wielandt said they have not. He said he would like the chance to discuss briefly each category. Mr. Wuorinen said he agreed. Chairman Tadema-Wielandt said they would not belabor the points. Mr. Bearor said they could ask the attorneys and allow input.

(tape # 2 ends here, tape # 3 begins)

Review Criteria Item #3 – Mr. Bearor said the Planning Board found this was accessible on town road and then with a private gravel drive. He said both are capable of accommodating the lobster pound traffic. He said the Planning Board asked them to get a letter from the fire chief and road commissioner, but it didn’t seem to be a formality the Planning Board wanted us to address. He said Mr. Becker would talk about the roads and the traffic generated. He said Mrs. Pettegrow would speak to the handout on traffic. He said the standard dealing with a traffic impact study would provide a description of traffic movement and was a submission requirement. He said they’ve done that. He said the full traffic study requirement is not triggered because the amount of traffic generated does not require that. He said he’s not sure what the review criteria is, what standard they are to meet. He said he would give professional and empirical opinions, but it’s not clear what the standard is, and he hoped it would not become an issue.

Chairman Tadema-Wielandt asked if the Planning Board asked for a letter from the fire chief. Mr. Bearor said it came at the conclusion of the approval process. He said it was a condition of the approval. He said they haven’t acted on the conditions because the appeal was filed. Chairman Tadema-Wielandt said the ordinance talks about a letter of approval from the fire chief and or the road commissioner. He asked approval of what. Mr. Marckoon said he didn’t know. Chairman Tadema-Wielandt asked if Mr. Marckoon had been asked in the past. Mr. Bearor said there is no new road being constructed in this project. Mr. Marckoon said he had been asked in the past. Chairman Tadema-Wielandt asked in reference to what. Mr. Marckoon said the most recent was for a subdivision as to whether the road was built up to standard, and he was not qualified as an engineer to make that determination. Mr. Alvarez said the fire chief makes a conclusion as to whether a road is wide enough to bring fire equipment down. Chairman Tadema-Wielandt said Mr. Friedman made reference to the fire chief’s inability to get equipment to abutting properties if a truck created a road blockage. Mr. Garrett said the approval from the fire chief has also to indicate there is a sufficient quantity of water to be delivered in the event of a fire. Mr. Bearor said that would have been an issue when Mr. Alvarez developed the subdivision. Chairman Tadema-Wielandt said these are existing roads, public and private.

Mr. Becker said the traffic impact study was brought up in the first meeting. He said he listed what traffic would be; 33-passenger car equivalents. He said there was no testimony from the objectors that the number was low, and it’s not unrealistic. He said the travel routes are obvious in the narrative. He said the trucks use Seal Point Road and Route 204 to access Route 184 and Route 3. He said this information combined with the Pettegrow’s submission from the bills of lading is more than sufficient. He said it’s his feeling that they do not meet the criteria to require a full traffic study. He said no one contends that they exceed 35 trips per hour, so they don’t meet the volume threshold. He said the Appeals Board, in consultation with the MDOT because of traffic safety or capacity deficiencies. He said the road the town office is on could handle 1,500 cars/hour. He said the road to the site could handle 500 cars per hour. He said that is arguably a high number, but the MDOT standard is how many cars could be conveyed in an hour. He said he doesn’t believe there is a capacity deficiency. He said that leaves only traffic safety as to whether a full traffic study is required. He said the Seal Point Road is not a road the MDOT keeps safety records on. He said it would be difficult to consult with MDOT. He said assuming MDOT passes the buck, the Appeals Board has the right to determine if there is a traffic safety concern. He said it’s his opinion the road is adequate for the traffic it has to handle. He said a full traffic study is not needed. He said if they have to tear out the parking lot, there would be an increase in traffic.

Mr. Wuorinen asked about wear and tear on the road. Mr. Becker said trucks are going to fatigue the road, including that maintained by the lobster pound. He asked if there were no trucks on the road, who would maintain the road. Mr. Becker said they degrade the road and the Pettegrows maintain it. Mr. Bearor said the Pettegrows have no incentive to have a pot-holed road. Chairman Tadema-Wielandt asked about the impact on the paved, town section. Mr. Becker said that road is doing fairly well and can handle the traffic. He asked if the town posts the road. Mrs. Pettegrow said they do. Mr. Marckoon said that road is not posted, but Route 204 is posted. Mr. Becker said they could be required to mitigate damage, and the road is in reasonable shape. Chairman Tadema-Wielandt asked about the weight capacity of the town road. Mr. Becker said the state has determined what can be on a road, and the Pettegrow trucks meet the standard. He said only interstate roads can handle large trucks, and that’s an accepted fact. Chairman Tadema-Wielandt asked if that means tractor-trailers. Mr. Becker said yes, and a short discussion followed.

Mr. Becker said roads are built to fail, and towns maintain them. Mr. Bearor said Mr. Becker was on the Seal Point Road yesterday. Mr. Becker said he was pleased with the condition of the road and the town has done some work recently. He said it was in pretty good shape. Mr. Bearor asked if the road shows any signs of wear and tear. Mr. Becker said there is no evidence of subgrade failure. He said he could usually tell, and none was occurring. He said there are many reasons a road is in good shape. He said sandy soils help and the road doesn’t appear to cross any wetlands. He said the town has taken measures to make sure the road is substantial.

Chairman Tadema-Wielandt asked about allowable speed and sight distances. He asked if there were any conclusion on reasonable speed. Mr. Becker said the site distance is adequate. He said he did not measure the sight distance on that road. He said there appear to be some who drive in excess of the speed limit. He said 30-miles per hour is a reasonable speed. Chairman Tadema-Wielandt said the trucks might be the only ones who observe the speed limit. A short discussion of driving habits followed. Mr. Becker said the speed limit should be between 30 and 35 miles per hour.

Mr. Hunt said he would like to let his clients speak. Mr. Friedman said during the summer of 2002 the neighbors got together regarding the truck traffic and safety concerns. On August 14, 2004 between 3:15 PM and 4:15 PM they counted at least 7 one-way truck trips. On September 11, 2002, they counted 21 trips by the huge trucks. He said there was noise and dust through the summer and that disrupted their lives. He said this year the traffic is much less objectionable. He said he wished to acknowledge and thank the Pettegrows. He said safety is their main concern. He said Seal Point Road was not designed to sustain the weight of the trucks, and it’s not nearly wide enough for two trucks to pass. He said they had trouble passing a truck alongside the road. He said there are several blind spots on the road, and many residents have experienced near accidents. He said if a truck jackknifed near the McMillan gate, it would take a day or more to remove it. He said in case of a medical emergency, a life could be endangered by such an accident.

Chairman Tadema-Wielandt asked if there have been any counts since summer of 2002. Mr. Friedman said no, but the impression is there is much less traffic, and the driving is much better. He said except for the width of the trucks, it agrees with the residential character of the neighborhood. Chairman Tadema-Wielandt asked if the number of large truck trips increased, and the small trucks trips have decreased. Mr. Freidman said he’s owned the land since 1985, and for the first few years there were no large trucks, only small ones. He said in comparison with those years, it’s increased enormously. He said in comparison with last year, no it hasn’t. He said since it’s come under the new owners, the traffic increased enormously over old.

Mr. Alvarez said he thinks what controls the traffic is the number of pounds of lobster. He said it was operated as a seasonal tidal pound with a capacity of 120,000 pounds per year. He said there has been a 15 to 20-fold increase now, and that’s a huge increase in traffic all year. He said before when the trucks used the road, the summer people were gone. Mr. Friedman said the size of trucks, the width, poses the real danger to the neighbors.

Mr. Wuorinen said he was having trouble interpreting the numbers they got. He said he looked at the two dates mentioned in 2002 and saw 3 trucks noted. A discussion followed on the numbers. He said the September 11th figure was 21 vs. the 7, which we interpret as 2 way trips. Mr. Friedman said it was a 24-hour survey. Mr. Gott asked if they were all Trenton Bridge Lobster Pound trucks, or were some dump trucks included. Mrs. Pettegrow asked if they stayed up 24 hours and counted the trucks. Mr. Friedman said yes. A discussion on the traffic survey techniques followed.

Mr. Bearor said his clients would respond to the numbers. He asked what the August 14th number was. Mrs. Pettegrow said 9 total, and they said 7 in one hour. Mr. Bearor said he can’t account for the veracity of the neighbor’s numbers, but the numbers don’t vary tremendously. He said for the 14th, they’ve got more trucks than the neighbors do. He said he didn’t mean to diminish the neighbors concerns, but they purchased the land when there was a pound there at the time, and you have to be aware of those things. He said tractor-trailers delivered to that site prior to the Pettegrows taking over, and he could provide historic testimony. He said there have been no misdeeds or accidents brought to their attention. He said the character of the use of the road has changed, but he’s not been provided with any empirical evidence or accidents reports, or opinions that two vehicles can’t pass. He said you could imagine horrible hypotheticals. He said there is a remote possibility of a bad accident. He said it’s probably the local residents that drive fast. He said nothing bad occurred when Mr. Friedman had to pass a stopped truck. Mr. Bearor said he’s not sure what their being asked to respond to. He said it’s an application for construction of a parking lot. He said it’s not a review of what you can drive on the roads, and it’s not an issue of the first time there would be a lobster pound on the end of the road.

Mr. Friedman said the veracity of the Pettegrow numbers was not challenged. Mr. Bearor said they’ve given the Appeals Board numbers for over 700 days. He asked the Pettegrows to comment on the experience of operating the trucks.

Chairman Tadema-Wielandt said he did not take Mr. Friedman’s testimony to challenge the veracity of the Pettegrows. He said takes both at face value, and if they’re off by one, it’s not a major issue. Discussion followed on neighbors keeping an eye on each other. Chairman Tadema-Wielandt said the Pettegrows don’t have to justify what they’ve told us. He said he’s seen trucks that probably could not pass and stay on the pavement. He said it doesn’t happen very often. He said it’s not the subject of the application.

Mrs. Pettegrow said she’s been over the numbers. She said to get to the point where trucks have to pull their mirrors in; they’ve never had to. She said a person might think that if they were not trained. She said the trucks have passed one another on both the paved and dirt roads. She said she is not sure how there were 7 trucks in one hour. Mr. Pettegrow said they own only 7-trucks in total. Mrs. Pettegrow said they did have two Canadian trucks in on August 14th. She said one brings in empty crates. She said there were not two tractor-trailers going by in one hour. Mr. Friedman said he wasn’t sure they were tractor-trailers, just large trucks. Mrs. Pettegrow asked what he considered a large truck. Discussion followed on what a large truck would be.

Ms. Lomonaco said the crux is that the neighbors are concerned enough and got together, and they’re not happy. She said a nice road has turned into a highway. She said the figures presented to the board were a way to show concern. Chairman Tadema-Wielandt asked if she agreed there is less traffic now. Ms. Lomonaco said she did agree, and had no complaints the response they get when talking about safety. She said the truck traffic remains a big concern.

Kate Berry said when she moved to Maine, she knew of the fishing tradition and that there was a lobster pound at the end of their road, and that was fine, and it never bothered her. She said all of a sudden she was noticing more and more trucks. She said that concerned her and she found out what happened. She said what was like a Mom and Pop store was now more like a Wal-Mart. She said it’s not so much right now, and the traffic is better. She said lobsters are seasonal, and her concern is the possible growth. She asked if the town is going to put a limit on how much it grows.

Mr. Alvarez said there has been a big decrease in traffic and a big increase in courtesy. He said the Pettegrows keep uncontrolled trucks out. He said if there could be some condition to limit truck traffic to their own equipment, they do a good job of controlling that. He said the answer is on page 3 of the Site Plan ordinance, and read the purpose of the Site Plan Review ordinance. He said that was the essence of why they’re here.

Mr. Bearor said the purpose provision in an ordinance is not a standard of review. He said he had nothing further and can’t quite figure out what standard is to be met. He said traffic does not have an adverse impact on road safety.

Chairman Tadema-Wielandt asked if the clients could quantify the impact of using larger trucks on traffic volume. Mr. Bearor asked if that meant how many little trucks are displaced, and if he wants it now or when the meeting reconvenes. Mr. Pettegrow said the 14-foot box holds 80 crates, a 48-foot box holds 320-crates. He said he has two with 14-foot boxes, one with an 18-foot box, two with 25-foot boxes, and the trailers are 48 feet, and he has two of those, along with two tractors. Chairman Tadema-Wielandt asked about the total length of a tractor-trailer. Mr. Pettegrow said about 60-feet. Mr. Bearor said there are 48-foot trailers that are smaller than the largest which are 53-feet. Chairman Tadema-Wielandt asked if the Trenton Bridge trailers are the biggest coming in. Mr. Pettegrow said yes, and the Canadian trucks are the same length. Discussion followed on why the Canadian trucks look longer. Mr. Bearor asked if the trailers are wider than the single unit trucks. Mr. Pettegrow said the trailers are 102-inches wide, and the rest are 96-inches.

Mr. Fenton asked for clarification on the number of crates each size holds. Mr. Pettegrow said the 18-footer holds 116 crates and the 25-footer holds 176.

Mr. Hunt said he had nothing further. Mrs. Pettegrow said when they talk about the increase and the fear of what happens down the road, they understood when they purchased the facility what the limitations were on capacity. She said the size of the facility governs what they do there. She said they didn’t know how they could increase any more if they are already at capacity. Chairman Tadema-Wielandt asked if they’re suggesting the tank room is already at capacity, and if to do more they would have to build another tank. Mrs. Pettegrow said yes.

Mr. Fenton asked if the previous owners ever brought in the 48-foot trailers. Mr. Alvarez said not to bring in lobsters, but once to bring in bait. He said when he owned the pound, he could remember a tractor-trailer with empty crates coming in. Mr. Fenton asked what type of truck was used to ship product out. Mr. Alvarez said a 25-foot straight truck. Mr. Bearor said the only difference is that his clients use a 48-foot trailer. Mr. Alvarez said bigger loads go out, and small loads are coming in. He said what controls the truck traffic is the number of pounds of product.

Chairman Tadema-Wielandt asked if Mr. Alvarez concurred the tank house is near capacity. Mr. Alvarez said he had not been over lately, but would agree it’s fairly close. He said they could add to capacity by the relaying of lobsters.

Chairman Tadema-Wielandt said he would like to get a motion formulated and voted on. He said it’s the general agreement that question 3b 9 & 10 are not agreed to. He moved that with regard to General Review Standards 3b1, 2,3,4,5,6,7 and 8 that this board adopt the Planning Board findings of fact which are part of Exhibit 1. Mr. Wuorinen 2nd. Chairman Tadema-Wielandt read those findings. Vote in favor was 4-0.

Chairman Tadema-Wielandt said with regard to § 9 he would move that the Board find the data and testimony provided by the appellee satisfies §9 of Section J3. Mr. Wuorinen 2nd. Vote in favor was 4-0.

Chairman Tadema-Wielandt said as to § 10, he would move that the board find there is not sufficient volume of traffic as set forth in Section 10a, nor according to testimony from Mr. Becker in regard to § 10b would there be a determination by the MDOT that a full traffic study would be required for the location which is the subject of the application. Mr. Wuorinen 2nd. Vote in favor was 3-1, McDevitt opposed.

Chairman Tadema-Wielandt said with the permission of counsel, they would end this day’s work, and figure out when to come back and finish up. Dates were discussed. The board determined that the meeting would reconvene on Sunday, September 12, 2004 at Noon.

There being no further business, the meeting adjourned to the above date and time at 6:28 PM.

Respectfully submitted,

Stu Marckoon, Secretary pro-tem