Chairman Chris Tadema-Wielandt called the meeting to order at 6:30 PM.

 

Present were:  Board of Appeals members Chris Tadema-Wielandt, Reginald McDevitt, John Wuorinen, Hancock “Griff” Fenton; Secretary Stu Marckoon, Gary Hunt (Attorney for Alvarez et al), Edmond Bearor (Attorney for the Pettegrows), Anthony & Josette Pettegrow, Donald Becker (CES), Kate Berry, Paul Frederick, Robert Alvarez, Karen Dube (Court Reporter), Warren Craft (Board of Appeals – non sitting member), and Cable TV Channel Tech Christopher Bowman.  The meeting was telecast on Government

Access Channel 7, recorded on videotape and audiotape.

 

Minutes - Chairman Tadema-Wielandt presented numerous changes to the draft minutes of December 9, 2004.  Other board members suggested changes as well which the chairman recorded.  Mr. Wuorinen moved to accept the minutes as revised.  Mr. Fenton 2^nd.  Vote in favor was 4-0.  The changes were given to the Secretary.

 

Chairman Tadema-Wielandt said he would prefer to postpone consideration of the minutes of December 21, 2004 until the next meeting.  There were no objections.

 

Alvarez et al vs. Lamoine Planning Board re: Shoreland and Site Plan Review permits issued to Anthony & Josette Pettegrow (Seal Point Lobster Pound). 

 

Chairman Tadema-Wielandt noted that the public hearing had not yet closed, and said all are welcome to speak. 

 

Paul Frederick said at the last meeting he alleged the amount of the lot cleared in the Shoreland Zone was greater than 25%.  He said that Mr. Becker said the amount was near 25%.  Mr. Frederick said he’s calculated the cleared area and if permitted would present that number.  He said if he is all wet on the calculation, Mr. Becker can dispense with it.  Mr. Frederick said he believes that 48.1% of the lot in the Shoreland Zone was cleared for development.  Mr. Frederick came to the table with papers. Chairman Tadema-Wielandt asked if Mr. Frederick contended that 48% of the lot was cleared in the Shoreland Zone.  Mr. Frederick said he did, and he said his calculation was based on the map supplied by CES.  He showed the Board his maps with an overlay.  Chairman Tadema-Wielandt asked if it was an exhibit.  Mr. Bearor said the base map was in the Site Plan Review Application.

 

Mr. Frederick said he took that map to an engineer.  He said the engineer made a manual calculation by tracing the lot, placing grids, and shading in the treed area.  He said they counted the squares in the grid, and there were 805 cleared squares representing 125,781 square feet of clearing on the lot within the Shoreland Zone.  Mr. Frederick said the total area within the Shoreland Zone was 261,360 square feet, so the calculation is that 48.1% of the area was cleared.

 

Chairman Tadema-Wielandt asked if the tracings were made from the CES drawing in the exhibit. Mr. Frederick said they were.  He said the lot is an irregular shape, and counting the squares is cumbersome.  He said the point was not to claim the number is accurate, but the show clearly the amount of clearing is greater than 25%.  He said CES could make a more accurate count.  Chairman Tadema-Wielandt noted the base map came from part of Exhibit 2.  He asked Mr. Becker if the site plan and the erosion control maps contain the same data.  Mr. Becker said they do.  Mr. Frederick left the overlays on the table, and the board looked at the drawings.

 

Mr. Becker said he understands the methodology Mr. Frederick used and said it was a reasonable method.  He said he did his own calculation.  He said the weakness of Mr. Frederick’s calculation is using the tree line that is shown on the plan.  He said the tree line is a general outline of woods that were never disturbed vs. other areas.  He said Mr. Frederick relied too heavily on the woods line shown and that was not the intent of showing the cleared areas on the plan.  He said the DEP looks at the drip edge of leaves as un-cleared areas.  He said a significant amount of white areas shown on the plan are in fact treed.  Mr. Wuorinen asked Mr. Becker how he would calculate the area.  Mr. Becker said he would use a similar method, but preferred to use a digital computer file with meaningful lines.  He said he had another engineer do the calculation who was unaware of what the target number was supposed to be, and that engineer came out with a cleared area of 24.5%.  Mr. Becker said a letter received earlier in the day from Richard Baker of the Maine DEP explained that branches count as forest canopy.  He said considering the overhang on the parking area and the road, he’s comfortable that 24.5% is a reasonable number.  He said the Board should recall what it saw during the site visit.

 

Chairman Tadema-Wielandt asked Mr. Becker if he would be confident that if the Board were to attach a condition to its decision that no more than 25% be cleared that little or no re-vegetation would be required.  Mr. Becker said he would be confident and said the proposal calls for more re-vegetation that has not occurred.  He said he believed close to that number.   Mr. Wuorinen asked Mr. Becker if he had a feel for the proposed area that reforestation would change.  Mr. Becker said if the trees stay alive, it would be closer to 20% cleared.  He said some of the trees on the lot are dying.  Mr. Bearor asked if it would be closer to 20% or 24.5%.  He asked if it would be less than 22%.  Mr. Bearor said it would be less than 22%.  He said the DEP would do calculations and use aerial photographs which would be favorable to their clients.  He said the DEP would count the overhang from the sky, and one would be hard pressed to find any photo with a greater than 25% cleared opening. 

 

Mr. Frederick said the determination hinges on different understandings of what cleared means.  He showed the Board the photo from Mr. Alvarez’s package (Exhibit 4-SZ).  Mr. Fenton asked when the photograph was taken, saying it’s different in December than it is in July.  Mr. Becker said he asked the question of the DEP yesterday, and the DEP said they measure when leaves are on the trees.  Mr. Frederick said if it’s the intent to return the lot to 25% clearing and the grow back is treed, he would be satisfied.  Mrs. Pettegrow said if the picture were taken in the summer one would see the coverage.  She said Mr. Alvarez was aware of that.  Mr. Becker said it’s the intent of the application that those re-vegetated area would grow into full trees and that should make the issue go away. 

 

Chairman Tadema-Wielandt said he was inclined to attach a condition that less than 25% of the Shoreland area be cleared, and Mr. Becker believes that no additional re-vegetation would be needed to achieve that. 

 

Mr. Alvarez said the aerial photos were taken in April 1996 and the lot coverage then was 21.9%.  Mr. Bearor said that’s a different standard than clearing.  Mr. Alvarez said when one visualizes what has been cut since, there is a huge difference.  He said there is another photo posted on the Internet dated 2001, but one must pay for that.  He said the 2001 photo could be compared with the 1996 photo and end the discussion.

 

Mr. Bearor said his clients would accept a condition with third party verification, and they’re confident that the cleared area does not exceed 25%.  He said when they finish with the proposed plan there would be more coverage.  Chairman Tadema-Wielandt said that was encouraging. 

 

Mr. Bearor asked if it would be appropriate for him to respond to the questions the Board had last meeting and to the Alvarez package (Exhibit 4-SZ).  He said that would take about 30-minutes.  Chairman Tadema-Wielandt said he would agree to that. 

 

Mr. Bearor said the Board asked him to provide evidence of exemptions for trucks to operate on posted roads in the spring.  He said he has a copy of all the exemptions of all the vehicles.  He said two are dated December 2004, and five are dated February 2002.  He said the Pettegrow trucks are exempt, and two of the trucks were acquired after 2002.  He said if the Board needs more copies he could make them.  He gave the Board the copies of the vehicle exemptions.  Chairman Tadema-Wielandt asked if those were only for the overweight vehicles.  Mr. Bearor said the ones owned by Trenton Bridge Lobster Pound, and they are able to obtain the exemptions.  Chairman Tadema-Wielandt said he recalled that only one truck that serviced the pound was not owned by the Pettegrows.  Mr. Bearor asked Mr. Pettegrow if that was correct during the posted roads season.  Mr. Pettegrow said the truck from Canada runs only in the summer.  Mrs. Pettegrow said sometimes a Maine Shellfish truck runs in the winter. 

 

Mr. Bearor said the Board asked to explore the discharge into the pound area, and they did that.  He said he was showing the Board letters now.

 

Chairman Tadema-Wielandt asked Mr. Hunt if he would like to look at the exemptions.  Mr. Hunt said did not.  Mr. Bearor said the exemption certificates should be marked as an exhibit.  Chairman Tadema-Wielandt asked which exhibit set he would prefer to make them a part of.  Mr. Bearor said the Shoreland.  Chairman Tadema-Wielandt said they collectively would become Exhibit 6-SZ.

 

Mr. Bearor said he had a field determination with two letters.  He said when the Board last met the Pettegrows said they had talked with the DEP regarding the discharge from the tank room.  He said a document dated September 7, 2004 verifies the Pettegrows recollection and refers to a de-minimus discharge from the pound.  He said the DEP had to consult with the water bureau.  He said a letter dated January 7, 2005 questioned the legality of the discharge and the DEP response dated January 7, 2005 answered that the discharge is considered de-minimus and does not require a license.  He said he would like that correspondence marked as Exhibit 7-SZ.  Chairman Tadema-Wielandt asked if there was any objection.  Mr. Hunt said no. 

 

Mr. Wuorinen said the letter from the Trenton Bridge Lobster Pound states “the maximum holding capacity is 500 crates of live lobster not fed or medicated.”  Mrs. Pettegrow replied “exactly”. Mr. Wuorinen asked if any other thing is done to the water and if there was feeding going on in the tank room.  Mrs. Pettegrow said it’s all natural.  Chairman Tadema-Wielandt asked if they ever feed the lobsters.  Mrs. Pettegrow said only in the pound, but not with medicated feed.  Mr. Pettegrow said they use herring and codfish.  Chairman Tadema-Wielandt said the entire package would be marked Exhibit 7-SZ.  Mr. Bearor said it was to prove the veracity of the Pettegrows regarding their statements that the DEP found their discharge was de minimus.

 

Mr. Bearor said the next letter was not germane to anything in particular.  He said it’s from Tracy Thibeault of the DEP who visited the pound in April 2004 regarding a complaint from Mr. Alvarez.  He said Ms. Thibeault found the fill was in compliance with the DEP permit.  He said Ms. Thibeault wanted the Pettegrows to replant some trees and they did.  He said Ms. Thibeault attended a meeting with them yesterday.  He said the DEP has seen the area and had no reason to follow up with any action against his clients.  Chairman Tadema-Wielandt asked if there was any mention of the 25% standard.  Mr. Bearor said no.  He said he would have expected her to remark on that if there was a disparity of 100% as claimed.  He said Ms. Thibeault is a stickler.  Chairman Tadema-Wielandt said that letter would be Exhibit 8-SZ.

 

Mr. Bearor referred to a letter from Richard Baker of the DEP which the Board had been provided in advance of the meeting.  He asked that this be entered as Exhibit 9-SZ.  Mr. Bearor said the Board had some letters from Mr. Baker solicited by Mr. Alvarez.  He said he asked to meet with Mr. Baker and they met yesterday in Bangor.  He said Mr. Baker reviewed the plans and the earlier letters.  He said he sent this letter (Exhibit 9-SZ) at noon today.  Mr. Bearor said the letter refers to lot coverage on page 1.  He said un-vegetated surfaces cannot exceed 20% of the lot in the Shoreland Zone, which is the state model.  He said the Lamoine ordinance is 10%, and read from the letter as follows: Lot coverage also appears to be an issue with the Pettegrow lot.  Lot coverage (unvegetated surfaces) cannot exceed 20% of the lot in the Shoreland zone.  If the lot coverage limitation was further exceeded after the town adopted the 20% standard, the town should be requiring the lot coverage to be reduced to what it was at the time the 20% lot coverage limitation took effect. 

 

Mr. Bearor said what they are proposing to do with the plan is to bring the lot coverage to less than what existed when the ordinance was adopted.  He read further from Mr. Baker’s letter (Exhibit 9-SZ): When I wrote the above statement I assumed that any increase in lot coverage over 20% that occurred after the lot coverage limitation took effect, would have been a violation that required a reduction back to 20%.  I was not aware of the fact that the activity that resulted in a lot coverage that exceeded 20% had been an activity that was permitted by the town, and that was not appealed by another party.  If that is the case, I do not believe the Town can require the lot coverage to be returned to a percentage lower than the amount that was previously permitted.

 

Mr. Bearor said what they are proposing to do with the application is to bring the lot coverage back to the 1996 level of 21.9% or less.  He said that was done via permits.  He said the coverage in 1996 was 21.9% and when they are finished the lot coverage would be less than 21.9%.  He said Mr. Baker said that was an appropriate solution.  He read from the letter as follows:  I also wish to state that I did not draw a conclusion as to whether the Pettegrow’s operation fits into the Limited Commercial District or is an industrial activity.  That decision must be made by the local planning board considering all the factors involved which may include various measures to alleviate noise and traffic.  In this case, I am sure that different people will come to varying conclusions.  However, I don’t believe that the decision should be made by the State’s Shoreland zoning coordinator, who has not even been to the site.

 

Mr. Bearor read further from the letter:  Finally there appears to be some confusion on how to apply the “cleared opening” standard.  A cleared opening is determined based on the opening in the tree canopy, as measured from the drip-edge of the leaves.  The extent of a cleared opening is not measured from the trucks of the trees.  The lot coverage standard, on the other hand, is based on the amount of unvegetated surface within the Shoreland zone as compared to the total lot area in the Shoreland zone.  Because a sidewalk or a portion of a parking lot, for example, can be constructed under a tree canopy, it is possible that a lot could have a greater lot coverage than it has a “cleared opening”.  This is not often the case, but it can happen.

 

Mr. Bearor offered the letter as Exhibit 9-SZ.  Mr. Hunt had no objection. 

 

Mr. Bearor said he thinks those were the items the Board asked his clients to respond to.  He said they would respond to the issue of vehicle washing.  He said he would not cover each page of Mr. Alvarez’s submission.  He said he would start with the cover page of Exhibit 4-SZ.    He said the aerial photo has a date of May 14, 1996.  He said he’s not sure when the tank building was constructed, but the permit was issued in May 1996.

 

Mr. Becker said when he saw the photo he believed it was a winter photo, and the entry road is wider than it is today in regard to a cleared opening.  He said trees obscure the road.  Chairman Tadema-Wielandt asked if he was talking about the driveway serving the pound.  Mr. Bearor said yes.  Chairman Tadema-Wielandt asked how Mr. Becker could tell it was a winter photo.  Mr. Becker said from snow.  He said it was just a guess because the trees were not fully leafed. 

 

Mr. Becker said he had no comment on page 2 of Exhibit 4-SZ.  He said they’ve been over that.  He said they had a permit from the DEP for wetland filling activities, and there was no follow up from the DEP.  He said the letter from Tracy Thibeault in April 2004 (Exhibit 8-SZ) contains a comment that the requirements of the permit were fulfilled.  Chairman Tadema-Wielandt asked if that was for the NRPA permit.  Mr. Bearor said yes. 

 

Mr. Bearor said page 4 was a set of guidelines for tree cutting, and is not a law.  He said if one applies the methodology in the handout, one would come up with a number similar to Mr. Becker’s on the cleared opening calculation.  He said that’s the same methodology referred to by Mr. Baker in Exhibit 9-SZ. 

 

Mr. Bearor said he had no comment on the letters from Mr. Baker in Exhibit 4-SZ. He said the response would be the clarification presented today.  Mr. Bearor said page 13 is from the Maine Shoreland Zoning Ordinance handbook.  He said while it’s helpful, it has no legal significance. He said it has no bearing on the application or the local ordinance.  Chairman Tadema-Wielandt said there is nothing misleading or false and was written by the enforcers of the state ordinance. 

 

Mr. Bearor said page 19 of Exhibit 4-SZ which highlights parking areas.  He said parking area plainly meets the standard of being more than 100-feet back from the normal high water mark. 

 

Mr. Bearor said page 23 of Exhibit 4-SZ is an excerpt of the Planning Board decision.  He reminded the Appeals Board that this is a de novo procedure; the ordinance says the Appeals Board can only overrule the Planning Board if their decision was clearly contrary to a provision of the ordinance.

 

Mr. Bearor said he thinks they clarified that the highlighting and a photograph on an application for a freshwater wetland alteration (beginning on page 25) were done by Mr. Alvarez and were not part of that application.  There was a brief discussion by Mr. Bearor and Mr. Becker out of earshot. 

 

Mr. Bearor said page 33 of Exhibit 4-SZ is an e-mail memo to the Board dated September 2004.  He said the response was from John Cullen and Greg Wood (Exhibit 7-SZ). Chairman Tadema-Wielandt said that does not appear to address the truck washing but the effluent from the pump house.  Mr. Bearor said that was correct. 

 

Mr. Bearor said page 44 of Exhibit 4-SZ was attached guidance dealing with washing activities.  He said they described that activity to Mr. Baker and used Exhibit 3-SZ to show where the washing activity occurs.  He said they confirmed the slope was less than 2% and showed where the water flowed.  Mr. Bearor said Mr. Baker told him he didn’t think the guidelines attached were violated by the washing activities.  He said they use a pressure washer and they don’t steam clean engines.  Mr. Bearor said Mr. Baker told them they were not running afoul of the guidance. Chairman Tadema-Wielandt asked Mr. Bearor if he would have any objection to a condition that would include that washing activity be done as per the state DEP guidelines.  Mr. Bearor said they would not.

 

Mr. Bearor said that’s all they have.  He said he gave a memo out last meeting, and would be glad to respond to questions.  Mr. Hunt said he read through the memo.  He said he interpreted the memo to argue that because the Comprehensive Plan stated years ago that the lobster pound should remain in the Limited Commercial Zone, therefore the activity there now was in the imagination of the Comprehensive Plan Committee, therefore it was pre-approved, and it not of an industrial nature.  He said he didn’t agree with that argument.

 

Mr. Hunt said the town has a Limited Commercial Zone.  He said at the time of the comprehensive plan there was a tidal lobster pound with very little traffic.  He said the whole nature of the operation changed with the tank room.  He said when Mr. Alvarez and his successors operated the pound there were few trucks.  He said now there are more trucks on a year round basis.  He said the capacity of the tank room is much larger than the pound.  He said the tank room is now a principle structure, and was originally an accessory structure to the tidal pound.  He said to convert and expand a business requires a permit, and a permit was never obtained.  He said that point was discussed in his letter of July 30, 2004.  He said he would rely on what he said in the letter regarding the Shoreland Zoning Ordinance.  He said he doesn’t think the business location is consistent with the Comprehensive Plan.  Her said he did not think the Comprehensive Planning Committee contemplated what is there now. 

 

He said if anything, the Comprehensive Plan intended to place limits on growth of a business at that location.  He said there are other areas with no limits such as the Commercial Fisheries and Maritime Activities district which could have trucks or sardine factories.  He said that’s not what was intended by the Comprehensive Plan Committee.  Chairman Tadema-Wielandt asked if Mr. Hunt would like to offer the July 30^th letter as an exhibit.  Mr. Hunt said it was in the packet – at least he thought it was.  He said it would be fine if it were an exhibit.  Chairman Tadema-Wielandt asked if it would be in the Shoreland Zone exhibits.  Mr. Hunt said yes, it should be Exhibit 10-SZ.

 

Mr. Bearor said he would like to highlight on Mr. Hunt’s comments.  He said the last time they argued why this was not a permissible activity.  Chairman Tadema-Wielandt said he would like to make sure Mr. Hunt was finished.  Mr. Hunt continued.  

 

Mr. Hunt said with respect to the commercial/industrial distinction, the ordinance has some flaws.  He said he could go on at length whether receiving lobsters in crates and putting them into cardboard containers constitutes packaging activity using a dictionary definition.  He said the local general store wrapping up a sub for somebody might constitute packaging.  He said trying to equate the two might be looked at as an argument of scale.  He said some activities come under the industrial umbrella and some do not.  He said the on-site visit the Board went upstairs. He said the upstairs was not included in the original permit for the building.  He said the Board saw the assembled cardboard boxes from one end to the other of the upstairs.  He said it certainly looked like an industrial operation. He said it’s certainly not a light commercial use.  He said under the definition of limited industrial the area is supposed to co-exist compatibly so as not to intrude on the neighboring residential uses.  He said he would urge the board to consider that it could place limits on commercial activities.  He said the expansion of use requires a permit. He said the town seems to be resistant to applying that definition to any business situation.  Mr. Fenton asked for an example.  Mr. Hunt said this property is an example.  He said it was originally a tidal pound, and now is a tank building.  He said the argument is that the sky’s the limit or the topographical features of the site are the only limits.  He said this business can handle more traffic and run more lobsters through, so there appears to be no limit on how much traffic and how many lobsters.  He said he didn’t believe that to be the legislative intent of a limited commercial zone. 

 

Chairman Tadema-Wielandt asked Mr. Bearor if he agreed with the sky’s the limit statement.  Mr. Bearor said no.  He said the Pettegrows have not professed on the application that the sky is the limit.  He said the application is for a parking and turnaround area for trucks, and the number of trucks is reduced from what it would be without the creation of the parking area.  He said he didn’t think that you could transform a commercial operation from what it never was before to the sky’s the limit.  He said the important balancing act is that you not unduly adversely affect your neighbors’ quiet enjoyment of their property.  He said just because a neighbor complains you are not unduly affecting them.  He said there are adequate measures taken so the use can live compatibly with the neighbors.  He said it’s not called a limited residential district.  He said by any definition they would be a light commercial activity.   Mr. Hunt said he was finished.

 

Mr. Bearor said this is a de novo hearing.  He said the standard is that the Appeals Board could only reverse the Planning Board if it was clearly contrary to specific provisions of the ordinance.  He said he didn’t think the Appeals Board could make that finding.  He said they have met all the provisions of the Site Plan Review and Shoreland Zoning Ordinances.  He said the Appeals Board voted positively on the Site Plan Review criteria in August and September.  He said by doing so there was acknowledgement this operation was in harmony with the surrounding area.  He said there will always be friction with disparate uses.  He said it was found all the substantive review criteria have been met.  He said it would be hard to conclude this operation is not a light commercial operation.

 

Mr. Bearor said when Mr. Hunt challenged the Planning Board’s approvals to the Appeals Board and the Planning Board level, he kept focusing that this is industrial not commercial.  He said Mr. Hunt is now backing away.  He said Mr. Hunt is saying the ordinance is flawed.  He said they’re not manufacturing anything or making anything.  He said packaging is a red herring.  He said the lobsters would not walk themselves to the dinner table. 

 

Mr. Bearor said ordinance interpretation requires that Board look at  the plain meaning of language and construe legislative intent.  He said by looking at the ordinance it’s to balance the rights of landowners, and the Pettegrows are landowners with rights.  He said the use is specifically mentioned in the Comprehensive Plan.  He said the drafters of the Comprehensive Plan did not believe the lobster pound was an industrial use.  He said he doesn’t think this is an industrial activity by definition.  He said he doesn’t think it was contemplated as an industrial activity by the zoning ordinance.  He said the activities are not different in kind or in scope to remove the pound from the limited commercial district activities that are listed in the chart in the Shoreland Zoning Ordinance.  He said a lobster pound is not specifically listed, but aquaculture, commercial activities and parking facilities are allowed in the Limited Commercial Zone.  He said a lobster pound is a commercial activity and similar to an aquaculture activity. Mr. Bearor said what the Pettegrows are doing is a commercial activity.

 

Mr. Bearor said the Planning Board has found in the positive on all review criteria, and the Board of Appeals having found all the review criteria were met.  He said those determinations couldn’t be made without this being compatible with the neighborhood. 

 

Mr. Bearor said they have been patient in a long and expensive process.  He said they got off on the wrong foot and they’ve tried to right that wrong.  He said they recognize the concerns from Mr. Alvarez, Mr. Fredericks and others.  He said they think the plan complies with the standards and goes beyond them.  He said the plan would make things better than they are.  He said he was pleased to assist the Pettegrows because he’s learned that when they tell him something it turns out to be true.  He said they weren’t always hearing that from everyone else who had things to say at this meeting.  He said the opposition presented a case like throwing spaghetti at a wall and seeing what sticks.  He said he hoped they have provided the Board with the information that’s needed.  He said he believes this is a commercial activity in a Limited Commercial Zone.  He urged the Board to approve the permit with conditions.

 

Mr. Hunt said the suggestion that the lobster pound in general is industrial is not an argument he made.  He said one lobster pound could be a light commercial activity while another could be industrial.  He said the Site Plan Review Ordinance provides a more detailed definition of industrial use.  He said the way the business is conducted could be interpreted as industrial.  He said he was not backing off that suggestion.  He said looking at the evidence as a whole, the Board could find it is an industrial use.  He said a range of commercial activities could be conducted in town.  He said Limited Commercial implies there are limits on commercial activity.  He said the Board’s challenge is to look at how the business is conducted and has grown from a business that was compatible to one that is not compatible unless some limitation is approved.  He said the application is for a parking lot, but the Board needs to look at how the parking lot is used and the level of activity. He said there was never a permit for the activity at this level, and building there now is very different from the 1996 permit.  He said that might be an enforcement issue.  Mr. Hunt said Mr. Baker never passed judgment on whether or not it was industrial, saying it’s up to the Planning Board or the Board of Appeals to make that determination upon review of the application. 

 

Chairman Tadema-Wielandt asked Mr. Hunt if he subscribed to Mr. Bearor’s position that the Planning Board’s findings must be clearly contrary to the provisions of the ordinance, even though the Appeals Board is acting de novo.  Mr. Hunt said there is a problem with the ordinance.  He said the ordinance does not specifically say the Board can act in appellate capacity.  He said if the Board is holding a hearing and receives different information from the Planning Board, it’s illogical to even look at the Planning Board decision.  He said the ordinance fails to set up this procedure as an appellate procedure and the Appeals Board must go through it de novo.  He said the Maine Municipal Association must conduct it as though the Planning Board decision doesn’t exist.  Mr. Bearor said he didn’t think that’s what the manual says in its entirety.  He said the Appeals Board could overrule the decision only if clearly contrary to the provisions of the ordinance in the Shoreland Zoning Ordinance.  He cited section 16I.b.  He said he didn’t think the plain wording of the ordinance could be ignored.

 

Mr. Bearor said he wanted to clarify his position on conditions.  He said they’re willing to accept the Planning Board decisions.  He said while they agree the Appeals Board could impose conditions, but looking at the ordinance, the Appeals Board has to determine if the Planning Board was correct.  He said the Appeals Board could try to improve the decision of the Planning Board, but he didn’t think the Appeals Board has the power to impose conditions.  He said they would accept the conditions they agreed to.

 

Mr. Fenton said he believes the de novo hearing would take precedent over the Planning Board decision.  He said other ordinances don’t give the Appeals Board that power.  He said a couple of Supreme Court decisions say that de novo hearings are independent of Planning Board decisions.  Mr. Bearor said the Shoreland Zoning Ordinance contemplates a de novo hearing as opposed to an appellate hearing.  He said the Shoreland Zoning Ordinance clearly states the Appeals board could only reverse the Planning Board’s decision if it’s clearly contrary to the ordinance.  He said he thinks the application stands on its own.  He said what the Appeals Board is supposed to do is take the Planning Board information and information it gathers later and compare it to the Yea or Nay decision the Planning Board issues.  He said the de novo process affords introduction of additional information.  He said the board is still required to give deference to the Planning Board decision and not overturn it unless it’s found clearly contrary to the provisions of the ordinance.  He said they have to act independently on each application.  He said the Site Plan Review ordinance does not give that same guidance.  Mr. Fenton said that’s the dilemma.  He said the ordinances have different perspectives. 

 

Mr. Hunt referred to supplement # 2 of the MMA Board of Appeals Manual and read as follows from page 22:  the board of appeals is not deciding whether the planning board or code enforcement officer decision was in conformance with the ordinance, whether it was supported by the evidence in the record, or whether it had procedural problems. The board of appeals is deciding only whether the new record which the board of appeals has created supports a finding by the board of appeals that the permit application should be approved or denied.  He said the manual is not consistent with the ordinance. He said he thinks the language in the ordinance could be disregarded.  He said the severability section (section 6) allows that.  He said that would not invalidate any other section of the ordinance.  He said nothing’s been invalidated by the court.  He said the Lamoine Ordinance language is inconsistent with a de novo hearing. 

 

Mr. Bearor referred to the “Stewart v. Sedgwick” case, and said the justice who wrote the decision said it was a de novo hearing unless the ordinance said it’s appellate.  He said the Maine Supreme Judicial Court gave an example of a hybrid review and used an example of a tax hearing.  He said that’s still a de novo hearing, and the hearing of the Assessor is considered correct unless it’s manifestly wrong.  He said the same applies to the Planning Board – that it’s correct unless it’s clearly erroneous.  He said their application stands on its own merits.  He said he didn’t think the Board of Appeals could ignore a provision in its own ordinance because it appears to create an internal conflict.

 

Mr. Fenton said there was also a case where an Appeals Board heard a case de novo and overturned the Planning Board and the Maine Supreme Judicial Court said they couldn’t do that and sent it back.  He said he thinks it is important that what the Appeals Board does will be looked at carefully.  He said he didn’t want to do something contrary to the law.  Mr. Bearor said the ideal decision would be that the Planning Board decision was not contrary to the ordinance and that the Appeals Board independently found the permit should be granted as well. 

 

Chairman Tadema-Wielandt asked if Mr. Bearor believed the Appeals Board is constrained under both ordinances to finding whether the Planning Board decision was clearly contrary to the ordinance.  Mr. Bearor said the limitation is only in the Shoreland Zoning Ordinance, not in the Site Plan Review. 

 

Chairman Tadema-Wielandt asked Mr. Hunt if he was suggesting a fair result is a limitation on the conduct of business.  Mr. Hunt said that was correct.  Chairman Tadema-Wielandt said he was unsure if the Board of Appeals has the authority to do that.  Mr. Hunt said he thought the Appeals Board has that authority.  Chairman Tadema-Wielandt asked Mr. Hunt what might satisfy his clients.  Mr. Hunt said limits on the hours of operation would be a step in the right direction.  He said he didn’t think they could expect the situation to revert to what existed before the tank building was constructed when everything was quiet except the occasional truck.  He said the immediate neighbors would benefit from setting the times trucks could go in or out of the site.  He said the other neighbors are concerned with traffic going up and down the road.  He suggested a limit on the size and number of truck trips.  He said if a limit were placed on just the size, there would be more trips.  He said a limit on the size and number would address the incongruous result that would otherwise occur. 

 

Chairman Tadema-Wielandt said Mr. Hunt mentioned that other neighbors had traffic concerns. He said he wanted to read a letter that was sent to him by Nancy Washington.  He said he thought he put it in the record, but found no mention of it in the minutes.  He said the letter was sent on November 30, 2004.  Chairman Tadema-Wielandt read the letter in its entirety.  Chairman Tadema-Wielandt said he believes Mr. Bearor and the Pettegrows had responded previously to most of the points raised in the letter.

 

Mr. Bearor said he would like to respond to the limitations proposed by Mr. Hunt.  He said he didn’t believe the limitations are feasible.  He said limitations are not required when there is a lack of evidence that the noise limits set in the Site Plan Review Ordinance were not exceeded.  He said the regulations are there for a reason and they meet those standards.   He said they would be happy to have ongoing monitoring.  He said they propose to cover the generator and the chillers.  He said they are doing everything necessary and more than necessary to meet the standards of the ordinance.  He asked why it would be necessary to impose a restriction when they’re not outside the standards. 

 

Mr. Bearor said if there is an issue with speeding, that should be addressed, either internally or with law enforcement.  He said it doesn’t do them any good to drive unsafely up and down that road.  He said they would abide by the speed limits and posted rules of the road.  He said they believe they have abided by those limits.  He said different people have different perspectives, but they haven’t noticed any accidents and have not driven people off the road that they know of.

 

Mrs. Pettegrow said they work with Mother Nature.  She said some days there is no truck traffic at all.  She said other days have later truck traffic because of later fishing days.  She said they couldn’t ask fishermen to come in at 3:00 PM on one of the only days they’ve been able to fish in a week because they need the trucks off the road by 6:00.  She said operations generally don’t start before 7AM.  She said some employees come in early in their private vehicles.  She said it’s not feasible to say they can only operate between a specific time frame.

 

Chairman Tadema-Wielandt asked if sometimes trucks come in at midnight.  Mrs. Pettegrow said yes, if a storm is coming, they must be there to pick up the lobsters.  Mr. Pettegrow said that is rare.  Chairman Tadema-Wielandt asked if there would be an alternative location to take the lobsters at midnight.  Mrs. Pettegrow answered no, the facility in Trenton is too small.  She said that’s why they bought Seal Point, because of the capacity. 

 

Mr. Frederick said he understands those issues.  He said the concern is for what the future might be.  He said late trucks are not the norm, but they’re not unusual.  He read several times trucks arrived after 11PM.  He asked if it’s reasonable for trucks to come in at 1AM to 4PM.  He said there are no defined hours of operation, and it could be a 24/7 operation. 

 

Kate Berry said regardless of the decision the Board needs to look at the codes for the future.  She said the town needs to make it clear how big the operation can get.  She asked if the town is prepared to monitor and check for compliance.  She asked what could be done, and asked when it is one truck too many.  She said it’s the future that scares her. 

 

Mr. Alvarez said he’s reluctant to demand that they impose hours on the operation.  He said the fishing industry doesn’t have hours; it’s beyond their control.  He said that’s not the problem.  He said the Pettegrows have done a tremendous job with traffic.  He said the problem is with independent truckers who create problems along the road.  He said the Pettegrow trucks are very good.  He said limiting the operation to the Pettegrow trucks would help. 

 

Mrs. Pettegrow said she didn’t believe any other business coming in creates any adverse driving conditions or environment. She said no vehicles have gone off the road; they’ve not hit anyone, broken any branches off, or run anybody off the road. She said drivers coming to other peoples properties have gone off the road, and sometimes vehicles drive by her house at 40-miles an hour.  She said every vehicle coming down Seal Point Road is not necessarily headed to their facility.  She said the UPS truck went off the road on Mr. Frederick’s property.  She said they’ve never had a UPS or Fed Ex truck come to their property – they go to residential properties.  She said the Appeals Board members have been to the site.  She said there is no way to get a truck from the corner to go 45 to 50 miles and hour past Mrs. Washington’s driveway.  She said the letter from Mrs. Washington is another example of inconsistencies with the truth.  She said the letter contains outright accusations that are incorrect.

 

Mrs. Pettegrow said Mrs. Washington would have to be blind and deaf to not see a vehicle coming.  She said maybe people don’t walk any more – not because it’s not safe, but because it’s personal choice.  She said people have made such an issue about the trucks that they want to feel they can’t walk there.  She said a doctor and her baby walk there every day, and walks around the parking lot with the trucks running and maneuvering.  She said there is a school teacher with a small child who jogs down there.  She said if it were not safe, those two people would not be bringing their families there. 

 

Mrs. Pettegrow said Mr. Frederick’s daughter and her friends ride their bikes there.  Mr. Fredericks said he’s never complained about the traffic.  Mrs. Pettegrow called the letter from Mrs. Washington terrible, saying it’s not the truth. 

 

Mr. Fenton said he lives close to the intersection with Seal Point Road.  He asked if Mrs. Pettegrow’s trucks stop at the stop sign.  Mrs. Pettegrow said yes.  Mr. Fenton asked if cars ignore that sign.  Mrs. Pettegrow said yes.  Mr. Bearor asked how many outside vendors come to the lobster pound each week.  Mrs. Pettegrow said on average 2 or 3 per week other than the Canadian truck and the Trenton Bridge trucks.  She said they have the number of Canadian truck trips, and they average 1 to 2 trips a day.  Mr. Pettegrow said the Canadian truck is mostly 1-trip a day starting in August, and it’s no longer running. 

 

Chairman Tadema-Wielandt asked if the Pettegrows have as much product as they could handle.  Mr. Pettegrow said “oh yeah”.  Mr. Bearor asked what the limiting factors on product would be.  Mr. Pettegrow said he’s always there when it’s going on, so it’s not going to run 24/7.  Mr. Fenton asked what Mr. Pettegrow meant by running.  Mr. Pettegrow said the trucks.  Mrs. Pettegrow said the tanks govern what we do, and they have reached capacity during the season.  She said they do use the tidal pound as well.

 

Mr. Frederick asked if they operate on Sundays.  Mr. Pettegrow said they sometimes have to pick some stuff up.  Mr. Fenton noted that Sunday fishing is allowed for a certain part of the year.

 

Mr. Fenton asked if the Pettegrows could ship a lobster crate by air freight.  Mr. Pettegrow said no. She said they use cardboard boxes to ship lobsters from their facilities as the lobsters would not survive shipment in a traditional lobster crate.

 

 Mr. Frederick asked if the lobster pound is nearing capacity, can the Pettegrows quantify the number of truck trips, and could a limit on that number be set.  Chairman Tadema-Wielandt asked how one would set a gross limit and enforce that.  Mr. Alvarez said last summer’s operation is tolerable.  He said with the corrections and the screening it would be a big improvement on what it used to be.  He said his concern that it’s going to go beyond that.  He said he could live with the past summer.  Chairman Tadema-Wielandt said that would be the final comment, and closed the public hearing at 9:33 PM.  The Board recessed at that point and the meeting resumed at 9:50 PM.

 

Chairman Tadema-Wielandt said the Appeals Board must make a finding of facts, make conclusions of law, and issue those findings within 7-days.  Mr. Bearor said they were willing to grant more time for a decision.  Mr. Hunt said his clients do not care about the 7-day limit, and would waive it if they can.  Chairman Tadema-Wielandt said that would make it easier, since he would be away.  He said all the board members would like to participate in the final product.  He said if it’s not something that would cause a hardship to the parties, the extension would be appreciated.

 

Chairman Tadema-Wielandt said he would like to take each appeal and make findings under the Site Plan Review Ordinance and then the Shoreland Zoning Ordinance.  Mr. Hunt said the Shoreland Ordinance said the Board has to decide within 35-days of the close of the hearing.  Mr. Bearor said he thinks the Board could adjourn tonight and reconvene on the 35^th day and issue a written decision. 

 

Chairman Tadema-Wielandt said he’d like to start with the Site Plan Review to determine the evidence.  He said the first thing is the owner of the property – and the application says Anthony and Josette Pettegrow, and there was no evidence to contradict that.  There was no objection.  He said the location is identified as Lot 12-2 Map 8, the end of Seal Point Road in the Limited Commercial Shoreland Zone.  All parties agreed.  He said the applicant listed on the form was Tim Gott as the agent for the Pettegrows. He said there was no evidence to the contrary, and the application was signed by S. Salsbury for Mr. Gott. All parties agreed.

 

Chairman Tadema-Wielandt said the Board of Appeals held public hearings beginning on June 17, 2004, there was a site visit on August 21, 2004, and the review of the Site Plan Review Application began on August 22, 2004.  He said that was continue to September 12, 2004 when there was no quorum present, and then continued to October 21, 2004.  He said the minutes of the October 21, 2004 meeting showed that was the end of the applicant’s presentation for the Site Plan Review.  He said on September 15, 2003 the Planning Board had issued a permit under the Site Plan Review Ordinance based on the same application considered by the Board of Appeals. He said the Planning Board permit came with conditions that the Pettegrows were to enclose the generator facing Mr. Alvarez’s property (Map 8 Lot 12) and enclose the refrigeration unit facing the Frederick property (Map 8 Lot 12-4), and a further condition was that the Pettegrows conduct a noise test of the truck refrigeration on site and file that test with the town records.  He said the Pettegrows volunteered to conduct the test and the Planning Board accepted it as a condition of issuance of the permit.  He said the Planning Board approved the permit by a vote of 3-1-1. 

 

Chairman Tadema-Wielandt said the Board of Appeals has heard essentially the same information as presented in 2003 before the Planning Board.  He said two additional conditions, a letter from the fire chief attesting to the water supply and sufficient access for emergency vehicles and a detailed written landscape plan were to be filed prior to issuance of permits.  He said the plan was to show the buffer line between the Frederick property and the Pettegrow property and satisfy section J-6 of the Site Plan Review Ordinance.  He said that’s one of the items they have received, and asked if anyone remembered which one of the exhibits that was contained in. 

 

Chairman Tadema-Wielandt said Exhibit 3 shows notes in regard to erosion control.  He said Exhibit 2 was the same plan with different notes, indicating proposed plantings in the buffer zone and saying they would be replaced with the same species should the plantings not survive. He said the plan shows that opening in the buffer, and it looks like the Planning Board decision makes an exception for that. 

 

Chairman Tadema-Wielandt said the other thing talked about was the parking of the trailers for noise control, which the Pettegrows volunteered to do.  He said the trailer position was intended to direct noise up instead of out.  He asked if that was something the Appeals Board should add as a condition.  Mr. Fenton said the Board should do what it feels necessary since this is a de novo hearing with new information.  He said the Board in carrying out its legal responsibilities acts independently of the Planning Board.  Chairman Tadema-Wielandt said he agreed.  Mr. Fenton said the noise thing should be addressed. 

 

Mr. Wuorinen said in regard to Exhibit 3, the restoration promised and the drive entrance orientation they don’t have a 50-foot swath of vegetation.  He said it’s relatively narrow.  He asked if that portion of the uphill drive should be vegetated.  He said a triangular area would be re-vegetated. He said to a considerable extent that could take care of the noise problem.  Chairman Tadema-Wielandt said the restoration area pointed out by Mr. Wuorinen runs along the easterly portion of the parking area.  Mr. Wuorinen said and the other triangular potion.  Mr. Fenton noted they heard testimony that the area between the parking lot and the house would be restored to its natural state. 

 

Chairman Tadema-Wielandt asked should the Appeals Board be satisfied that they could find that between what’s been done as shown on the plan and what is proposed to be done once the permit is issued if that would satisfy the requirements of the Site Plan Review Ordinance. Mr. Fenton said he believe so as it pertains to the parking lot.  Chairman Tadema-Wielandt asked if the Appeals Board agreed as it went through the review critera that each was found to be satisfied or did not apply.  Mr. Wuorinen said the minutes show that.  (Board members reviewed their notes/minutes)

 

Chairman Tadema-Wielandt said the Appeals Board needs to go through the general review standards and find for each one.  Secretary Marckoon said the Appeals Board did that on October 21^st, and referred to the minutes.  He said they did not make a conclusive vote following each of the review criteria.

 

Chairman Tadema-Wielandt said the application met standards 1, 2, and 3 with the exception of the letter from the fire chief.  He said section 3b found the Planning Board’s decision was OK.  Secretary Marckoon said they did that at the August 22, 2004 meeting, and referred to the last page of minutes from the meeting. 

 

Chairman Tadema-Wielandt asked if the Appeals Board was satisfied they had previously found all of the facts.  Mr. Wuorinen said that his impression.  He said if there were some question, they could march down the list and vote on individual items.  Chairman Tadema-Wielandt read from the August 22, 2004 minutes and went down the list.  He said standard J-1 was met by a 4-0 vote, standard J-2 was met by a 4-0 vote, general review standards 3b items 1-8 were met by a 4-0 vote, standard J3(9) was satisfied, and standard J3(10)a & b that there was not sufficient traffic to require a full traffic study was met on a 3-1 vote.  He said on October 21^st the Appeals Board voted 4-0 that item J-6 was met.  Mr. Fenton asked about standard J-4.  Chairman Tadema-Wielandt said that was done in August.  He said on October 21^st section J-13 noise would be met with the two Planning Board conditions, and adding the 3^rd condition to keep sufficient idle equipment to use as noise buffering. 

 

Chairman Tadema-Wielandt said the last standard that had not already been made was item 16, conformance with the Comprehensive Plan.  He said the Appeals Board found the plan meets that standard by a 4-0 vote. He asked if there were any other conditions in regard to the Site Plan Review Ordinance.  He noted re-vegetation was a Shoreland Zoning issue.  He said the issue of vehicle washing is a Shoreland Zoning issue.  He asked if the power washing issue was raised before the Planning Board.  Mr. Fenton said he didn’t think so – they didn’t wash trucks there at that point.  Chairman Tadema-Wielandt said he didn’t recall mention of that.  Mr. Wuorinen said he remembered no discussion of that before the Planning Board.

 

Chairman Tadema-Wielandt said the Appeals Board couldn’t really adopt the Planning Board findings on whether it’s in compliance with relevant sections.  Mr. Wuorinen said the DEP had no concerns.  Chairman Tadema-Wielandt said there are standards to abide by.  Mr. Fenton said that was part of a handout.  Chairman Tadema-Wielandt said it’s a Shoreland Zoning issue. 

 

Chairman Tadema-Wielandt asked if there was any reason not to conclude based on the facts found that the applicants are entitled to a Site Plan Review permit subject to the Planning Board conditions and those that the Appeals Board would add.  Mr. Wuorinen said it sounded good to him.  Mr. Fenton asked if the emergency vehicle issue was gone into in depth.  Chairman Tadema-Wielandt said the condition that they haven’t done could apply that condition that the fire chief must be satisfied with the egress and water supply.  Mr. Fenton said he agreed they’ve met that condition. 

Mr. McDevitt said he thought the Appeals Board ought to adjourn and come back another day.  Mr. Wuorinen asked if they have satisfied the findings of fact for the Site Plan Review Ordinance.  Chairman Tadema-Wielandt said they did in August and October.  He said there were no negative findings, and all the requirements were met.  He said based on the findings and based on the relevant sections of the Site Plan Review Ordinance, the Pettegrows are entitled to that permit subject to the conditions, including the three from the Planning Board.

 

Mr. Wuorinen said the Appeals Board has not discussed the limited commercial or industrial issue.  Chairman Tadema-Wielandt said that’s not in connection with the Site Plan Review Ordinance.  Mr. Fenton said there are two issues – the comprehensive plan and the defined areas of zoning in the Shoreland Zoning Ordinance. 

 

Chairman Tadema-Wielandt said the Appeals Board has found in the Site Plan Review Ordinance the Comprehensive Plan was complied with.  He said the Board has not gotten to the part of the Shoreland Zoning Ordinance.  He said he wanted to make sure of the conditions.  He said the letter from the fire chief has not been filed, the landscaping plan has been met, the noise control for the refrigeration and generator, and the Planning Board wanted noise tests performed, and that was done.  He said there was one instance in which the noise decibel level was exceeded.  Mr. Fenton said the Appeals Board added the parking area.  Chairman Tadema-Wielandt said the use of equipment to buffer noise was added.  He said he didn’t see any point in ordering more noise tests, but if you wanted to be really thorough about it you could order a series of random sound tests.  Mr. Fenton asked what would happen if the sound levels were exceeded after the noise conditions were implemented.  Chairman Tadema-Wielandt said after the generator and refrigeration units were enclosed, and the trailers would be used to baffle the noise.  Mr. Fenton said they could run the noise test while the trucks are running.  Chairman Tadema-Wielandt said you come back to the decibel standard, and if it didn’t exceed the level without the abatements… He said if there would be no harming after having done the abatements to run a noise test to see if the abatements have done any good. Mr. Wuorinen said it makes sense to do a noise test after the noise abatement is implemented. 

 

Chairman Tadema-Wielandt asked if the Appeals Board would conclude that it would approve the Site Plan Review application with those conditions.  Mr. Wuorinen said he’s stuck on the commercial/industrial issue, as it comes to bear in both ordinances.  He said it might be appropriate to go over that again.  Chairman Tadema-Wielandt said he didn’t know where it fits under the Site Plan Review Ordinance except for the Comprehensive Plan, and the Appeals Board has already agreed that section is satisfied.  He said the Board should discuss it. 

 

Chairman Tadema-Wielandt asked if there are certain characteristics of what the Pettegrows do that meets the definition of industrial – namely the packaging of goods.  Mr. Fenton said that is done for transportation purposes, not for sale.  He said they could transport the lobsters in either a crate or an insulated box.  He said crates are good only for a short distance.  He said packaging is more of a shipping means, not for the end user.  Chairman Tadema-Wielandt said so is the manufacturing of widgets and shipping them to Wal-Mart.  He said one could argue they’re not manufacturing lobsters; they’re just bringing them from off site.  He said he had a hard time with the industrial use argument.  Mr. Fenton went over the 8-items that define industrial. He said they could go over packaging once again.  He said everyone processes goods in one way or another.  He said he didn’t see this making the grade as an industrial use.

 

Mr. Wuorinen said it doesn’t say anything about the level of activity, whether you’re packaging one item or a thousand items.  He said the proposed uses could be commercial.  Mr. Fenton said that’s the key point.  He said if they don’t meet the criteria for industrial, then they’re commercial.  He asked if the Appeals Board could say this is not an industrial use.  Chairman Tadema-Wielandt said that was his opinion.  Mr. Wuorinen moved to find this is not an industrial use.  Mr. Fenton 2^nd.  Chairman Tadema-Wielandt said there are three criteria to define an activity as industrial. He said the Building and Land Use Ordinance requires there be more than 3 employees, that the facility be greater than 2,000 square feet devoted to the activity.  He said the Planning Board found that was the case that there is greater than 2,000 square feet even if you just count the tank room.  He said the whole site including the residence, tank room, pound and parking area are part of doing the same thing.  He said he thinks the packaging that goes on there is not primary thing they’re doing.  He said the determination needs to reflect that.  He said the Planning Board is of the opinion that to be found an industrial activity all three things have to be present; i.e. more than 3 employees, more than 2000 square feet, and the method of dealing with goods.  He said the Appeals Board is satisfied that using those common definitions that an industrial activity is not being done.  Mr. Wuorinen said that does not preclude the Appeals Board to review commercial vs. limited commercial.  Chairman Tadema-Wielandt said he would like to modify the motion to show that the Appeals Board finds all three criteria enumerated in the Building and Land Use Ordinance do not exist, and therefore we find it’s not industrial.  Mr. Fenton 2^nd the additional wording.  Vote in favor was 4-0.

 

The Appeals Board then discussed the issue of commercial vs. limited commercial.  Mr. Fenton said it’s defined in the Shoreland Zoning Ordinance and the Site Plan Review Ordinance.  He said there is no question this is a commercial operation.  Chairman Tadema-Wielandt said the question is whether the scope is allowed in the limited commercial zone.  Mr. Fenton said that’s not defined.  Secretary Marckoon though he’s hesitant to get into interpretation questions said the chart in the Shoreland Zoning Ordinance would define what’s allowed in the Limited Commercial Zone.  A short discussion of the uses chart followed.  Mr. Fenton said by the absence it has to be limited commercial.  Chairman Tadema-Wielandt said the only thing limited modifies is the zone, not the activity.  He said the Appeals Board need to determine the extent of commercial activity allowed.  He said that’s something that should be addressed in the Shoreland Zoning Ordinance.

 

Chairman Tadema-Wielandt said they should proceed with findings of fact on the Shoreland Zoning Ordinance.  Secretary Marckoon said there has not been a final vote on the Site Plan Review Ordinance.  Chairman Tadema-Wielandt asked for all in favor of granting the Site Plan Review Permit subject to the conditions from the Planning Board and the condition of using idle equipment for noise baffling.  Mr. Wuorinen asked if the Appeals Board was going to ask for noise measurement after the abatements.  Chairman Tadema-Wielandt said yes, it would be a 2^nd additional condition.  He said there should be a set time period after the enclosure is accomplished.  Mr. Fenton said 90-days.    Mr. Wuorinen suggested wording the condition so that the applicants would demonstrate the noise levels are in compliance with the noise ordinance subsequent to abatement measures and within 90 days.  Discussion followed on who would take the noise readings.  The Board agreed that anyone technically qualified could take the readings. 

 

Stu suggested the following motion would be in order: That the Site Plan Review permit be granted to the Pettegrows subject to the Planning Board conditions and with the additional condition that idle equipment in the parking lot be used for noise baffling and to have the applicants demonstrate that the noise levels are in compliance with the town ordinance subsequent to the noise abatements within 90 days as measured by a qualified person.  Mr. Fenton so moved.  Mr. Wuorinen 2^nd.  Vote in favor was 4-0.

 

The Appeals Board agreed that this meeting would adjourn and that it would make findings on the Shoreland Zoning Ordinance permit at its next meeting.  The Board set the meeting for February 1, 2005 at 6:30 PM.  

 

There being no further business, the meeting adjourned at 11:30 PM

 

Respectfully submitted,

 

 

 

Stu Marckoon, Secretary