Bridgton Court Room
Oct 24, 2006
7:00p.m.
The Bridgton Planning Board was called to order at 7:00p.m. by
Fred Packard, Chair. Those in attendance were: Fred Packard, Chair; Steve Collins,
Vice Chair; Christopher McDaniel; Gordon Davis; David Diller; Dee Miller, Alternate
Absent were: David Lee, Alternate.
Also present was Richard Spencer, Attorney with Drummond, Woodsum and MacMahon
as representative for the Town of Bridgton.
Randall Marina/David Randall
Long Lake/ Route 117/Old Brickyard Hill Road
Map 42 Lot 12 & 13
Represented by Attorney Robert Neault
The Planning Board to review and accept Formal Findings of Fact for Shoreland
Zone Application for the above project (copy attached)
Attorney Spencer said the Board has been distributed a document entitled Finding
of Fact and Conclusions of Law for the Shoreland Zone Permit. I have gone through
the draft document and have made changes according to Board discussion. When
we get to a section where the Board was undecided or had a difference of opinion
we will discuss it further. I did provide of copy of the proposed Finding of
Fact to Bob Neault, attorney for David Randall and John Bannon, attorney for
Bob Macdonald. Mr. Bannon sent me an e-mail raising a legal issue. There is
nothing inappropriate for me having communication from the attorneys as long
as they are both included in it and as long as it is not the introduction of
new facts into the record because the record is closed for additional factual
evidence. Mr. Neault may want to address that question and if he does the Board
should allow him to do so.
Attorney Neault said I would like to object to the entry or discussion concerning
Mr. Bannon on the grounds that the Board has closed the proceedings, therefore,
no additional information is appropriate. However, if the Board decides that
they are going to allow that information I think it has to reopen the record
and the applicant has the opportunity to submit modified plans or other information
and we are prepared to do that. I would also like to object to the process in
that this applicant has, not until the findings were discussed at the last meeting,
heard from this Board what the issues may or may not be, therefore, he will
not have the opportunity to address concerns of the Board.
Fred said the Board has not seen the letter from Mr. Bannon. Mr. Neault said
Mr. Spencer is bringing it in now and an objection had to be made prior to that
being submitted to the Board. Mr. Spencer said
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Bridgton Planning Board
October 24, 2006
Mr. Bannon’s letter raised a legal issue. I am not suggesting that we
add the e-mail to the record but I will discuss with the Board when we discuss
the Findings unless the Board advised me not to. Fred said does the Board want
to hear the e-mail or not? Mr. Spencer said it is not a violation in my opinion
if someone raises a legal point on an interpretation of an Ordinance and the
Board’s attorney in-turn brings that to the Board for discussion. Steve
said is this something that will come up in the course of our discussion? Mr.
Spencer said yes.
David D. said has this issue been brought up before? Mr. Spencer said in other
cases? David D. said no, in this case? Mr. Spencer said the applicability of
a certain section of the Ordinance has been discussed.
Dee said is this particular provision important during the deliberations and
will therefore change the outcome? Mr. Spencer said that is something that the
Board can discuss and come to a conclusion on. My point is in advising the Board,
as your attorney, I don’t think that I can be precluded from discussing
a legal issue and I don’t think the attorneys involved are precluded from
bringing a legal point to my attention.
Gordon said what about the second objection that Mr. Neault made regarding the
Board’s review of the application? Mr. Spencer said the objection is that
the Planning Board did not identify the areas where the Board had concerns about
the project during the hearing and proceedings and did not provide the applicant
with an opportunity to correct whatever concerns they had. My advice would be
that the applicant has the burden of demonstrating compliance with the Ordinance
and the Board in a contested proceeding is operating within proper procedure
to hear all the evidence submitted by the various parties. Following the hearing
the Board considers the evidence and makes its own Findings of Fact. One of
the duties of the Board is to remain open minded and to hear all the information
in a contested proceeding and not prejudge the application in the middle of
the hearing. Gordon said our objections were no different than what was raised
by the general public and the applicant did address those.
Mr. Neault said the discussion with the public did not constitute any kind of
formulation of the Board’s thought process regarding the application.
We did not receive input from the Board to give us the opportunity to correct
it. Mr. Spencer said the Board has conducted itself properly and it is the way
that Boards and contested proceedings typically conduct themselves which is
to hear the evidence
submitted by all of the parties, close the public hearing and then make a determination
as to whether the applicant has met it burden or proof and if the Board proceeds
to do that I don’t think that there is
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October 24, 2006
a valid constitutional due process objection to the Board’s procedure.
In light of that I would suggest that the Board proceed.
Steve said so moved. Gordon 2nd.
5 Approve / 0 Oppose
Mr. Spencer said I would suggest that the Board look through the proposed Findings
of Fact and Conclusions of Law using the discussion by the Board as a guide.
I would suggest that everyone on the Board make sure you are comfortable with
what has been written that and it is an accurate depiction of the proceedings.
Peter Lyon, Citizen, said I would like to address the Board? Fred said we are
not taking input from the public. Mr. Lyon said it is a legal matter I would
like to bring to the Board’s attention that the notice in the paper sited
an incorrect date. Georgiann Fleck, Secretary, read for the record the notice
posted in the paper in which the date sited was correct.
The Board began review of the Findings of Fact and Conclusions of Law for the
Shoreland Zone Permit (Draft attached).
Section I. Procedural History.
The Board concurred that this section was accurate.
Section II. Findings of Fact.
Numbers 1–12. The Board concurred that these sections were accurate.
Number 13. Mr. Spencer said the Board has had a difference of opinion so I would
suggest the Board discuss this section. Gordon said the burden of proof is on
the applicant and I don’t believe he has proven that there is not a problem.
David D. said there is a safety hazard. Christopher said it could be a problem
if someone was not a good navigator of a boat. Steve said the applicant has
not met the burden of proof. Fred said it is the responsibility of both parties
to police the area for safety. The burden of proof is on the applicant and it
has not been proven, therefore it is a safety hazard. Mr. Spencer said the majority
of the Board is saying that there is a possibility that there will be safety
problems and for that reason the applicant has not met its burden of demonstrating
that it won’t be. I would suggest a change to the last sentence by changing
will to may. The Board concurred.
Section III. Applicable Provisions of the Shoreland Zoning Ordinance
Numbers 1-4. The Board concurred that these sections were accurate.
Number 5. Mr. Spencer said there was disagreement on the Board as to whether
or not the Shorefront Common Area was applicable to this
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Bridgton Planning Board
October 24, 2006
application. I think the best place to deal with this issue is in the Conclusions
of Law.
Mr. Spencer said the legal issue that was brought to my attention by Attorney
Bannon is regarding inconsistent language in section 15C of the Ordinance. The
Table of contents sites “docks, bridges and other structures and uses
extending over or beyond the normal high water line of a water body or within
a wetland and the body of the Ordinance sites “docks, bridges and other
structures and uses extending over or within a wetland.” If you look at
section 5 and 6 it says no new structure shall be built on, over or abutting
a dock or other structure extending beyond the normal high water line of water
body or within a wetland and 6 says the same thing. The question is whether
15C applies to docks extending into water bodies or just those extending into
wetlands.
The Board concurred that this section still does not apply to the application
even though the language is inconsistent.
Section IV. Conclusions of Law (Correction from V to IV).
Number 1 & 2. The Board concurred that these sections are accurate.
Number 3. Mr. Spencer said the Board has stated that the applicant has failed
to meet his burden. The Board concurred to amend this section to the applicant
has failed to meet his burden of proof because it may create a safety hazard.
Number 4-5. The Board concurred that these sections are accurate.
Number 6. Mr. Spencer said the Board has had a difference of opinion so I would
suggest the Board discuss this section. Gordon, Christopher and David D. said
this does constitute a shorefront common area. Steve and Fred said the provisions
for a shorefront common area do not apply to this project.
Steve motioned that the application before us does not constitute a shorefront
common area. (The motion failed due to lack of a second).
Gordon motioned that it is a shorefront common area. David D. 2nd.
3 Approve / 2 Oppose (Steve and Fred)
Mr. Spencer said the judgment of the Board by a 3 to 2 vote is that the Shorefront
parcel is a shorefront common area under the Ordinance.
Number 7-9. The Board concurred that these sections are accurate.
Section V. Planning Board Decision (Correction from VI to V also in the body
of the paragraph Section V will be changed to Section IV).
Steve motioned to accept the Findings of Fact and Conclusions of Law with the
modifications as discussed to Roman II Number 7 (adding colonial method to the
measurement), Number 13 and Roman IV. Christopher 2nd. 5 Approve / 0 Oppose
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Bridgton Planning Board
October 24, 2006
Mr. Spencer said the chair should issue the decision with those corrections
made to it along with a motion to authorize the chair to issue the decision.
Fred said I would sign it and issue it to the applicant and the parties involved?
Mr. Spencer said yes.
Steve motioned to grant the Chair authority to issue the decision. Gordon 2nd.
5 Approve / 0 Oppose
The Planning Board to discuss and consider Findings of Fact for Site Plan Review
Application (as remanded by the Appeals Board) for above project (copy attached)
The Board began review of the Findings of Fact and Conclusions of Law for the
Site Plan Review (Draft attached). Members involved in this discussion were
Fred, Steve, Christopher & Gordon. These members were involved in the original
proceedings regarding review of the Site Plan Application.
Dee said because this involves the members originally involved in the Site Plan
Review I would like to be excused from this discussion. The Board granted her
request. David D. said I would like to request the same. The Board granted his
request.
Mr. Spencer said I have submitted case law, Pelkey vs. City of Presque Isle
regarding member participation when an issue is remanded and there has been
a change of Board members (copy attached).
Mr. Spencer said the format of this document is similar to the Shoreland Zone
Permit document.
Section I Procedural History.
To clarify this section, additional language will be added as follows: findings
of fact and conclusions of law in connection with. Add and the portions of the
subsurface disposal system to be located on the shorefront parcel and the pump
and the associated forced main.
The Board concurred with these additions.
Section II Findings of Fact.
Number 1-10 The Board concurred that these sections are accurate.
Number 11 add vehicle and pedestrian traffic congestion.
Number 12 The Board concurred that these sections are accurate.
Number 13 add the proximity to the Gluck property for clarification.
Section III. Applicable Sections of the Site Plan Review Ordinance
Section 6. Review Standards. The Board concurred that these sections are accurate.
Section 8. Special Regulations. Due to the difference of definition of Commerce
and Commercial this section was deleted.
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Bridgton Planning Board
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Section IV. Conclusions of Law
Number 1-5 The Board concurred that these sections are accurate.
Number 6 Discussion of provision 15.A.6 ensued regarding Shorefront Common Area.
Christopher motioned that the provisions for a Shorefront Common Area by definition
should apply. Gordon 2nd.
2 Approve / 2 Oppose (Steve and Fred)
Steve motioned to delete reference 15A.6 from Paragraph 6. Christopher 2nd.
4 Approve / 0 Oppose
Section V. Decision
Steve motioned to adopt the Findings of Fact and Conclusions of Law with the
modifications as discussed and deny the applicants request for Site Plan Review
Approval. Christopher 2nd. 4 Approve / 0 Oppose
Steve motioned to authorize the Chairman to sign the Findings of Fact and Conclusions
of Law. Christopher 2nd.
4 Approve / 0 Oppose
Steve motioned to adjourn the meeting at 9:30p.m. Gordon 2nd.
4 Approve / 0 Oppose
Respectfully submitted,
Georgiann M. Fleck
Municipal Secretary