Shoreland rezoning raises questions

By Gail Geraghty

Staff Writer

Thanks to a last-minute appeal late last week meant to pave the way for Avesta Housing, Inc.’s planned downtown affordable housing complex, the state Department of Environmental Protection has agreed to an even further reduction in minimum lot sizes in the shoreland zone around Pondicherry Square. Their draft conditional approval, issued Jan. 19, had set the standard at 5,000 square feet per residential unit, but after conferring by e-mail and phone, Town Manager Mitch Berkowitz convinced them to go even lower, to 4,000 square feet.

The DEP’s Michael Mullen signed the final order of conditional approval on behalf of Commissioner Patricia Aho last Thursday, Jan. 26.

Not everyone is applauding Berkowitz’s efforts, however.

At last week’s selectmen’s meeting, and also at Monday’s Comprehensive Plan Committee meeting, concerns were raised over the ways in which the language of the state’s order differs from what voters approved on Dec. 13. Voters were asked if the standard should be lowered to 1,000 square feet within the 250-foot setback zone from Stevens Brook in the downtown’s General Development II District on a “per bedroom unit” basis. But the DEP replaced that language with the “per residential dwelling unit” standard they have traditionally required in similar appeals from municipalities with shoreland in their downtowns.

The difference is significant, in that a single residential dwelling unit, such as a bed and breakfast or a boardinghouse, could have multiple bedrooms.

“You’re asking whether we could have one dwelling unit with 10 bedrooms? You’re absolutely right,” Berkowitz said, in answer to a question by Bear Zaidman at the selectmen’s meeting. He added later, however, that such a scenario represents “an extreme example,” and is therefore unlikely with the small numbers of properties involved.

Selectmen Woody Woodward said “the idea behind (a unit with 10 bedrooms) is ludicrous,” but that a developer could propose a 10-bedroom bed and breakfast that would count as only one dwelling unit, “as long as there’s only one cooking facility.”

Woodward said the town preferred the “per bedroom” standard, “since the whole idea is supposed to be how much sewage you’re putting in,” and that the town’s sewage system could theoretically be strained, if a developer tried to maximize the number of bedrooms in a development. But he noted that any new development must also pass muster under the Site Plan Review process.

Community Development Committee member Mark Lopez questioned the process required by the DEP for shoreland zoning amendments, calling it having “the cart before the horse” to have residents vote on language before the DEP reviews the request. Berkowitz agreed, but said, “That’s the only way the DEP will even entertain it.”

Berkowitz acknowledged, in response to a question from Selectman Doug Taft, that the town knew the DEP wasn’t going to approve the language put before voters on Dec. 13. Several of the DEP’s concerns were outlined in a Nov. 22 letter to the town. But Berkowitz said it was too late, by then, to do anything about it, since “we were already committed to the language on the ballot.”

Berkowitz said, “That letter was posturing. Because in that letter they were not willing to give us what we had asked for.” He said it is known that “the concern in Augusta is to make all of the regulations more business-friendly…but there’s been no guidelines (given to the DEP) as to how far do you waive off, before you’ve gone too far.”

Zaidman and Lopez asked if there were any avenues of appeal to the DEP’s decision to amend what voters approved. Berkowitz said the state order “preempts” the locally-approved changes to the Shoreland Zoning Ordinance, stating “I’ve never heard of a small town overturning a DEP ruling, especially on shoreland zoning, because state shoreland zoning is reflective of federal laws.”

Zaidman also questioned Berkowitz on what he saw as a potential “double standard” regarding shoreland rules, in that Bridgton’s rule, as he understood it, is that if any portion of a lot is in the shoreland zone, the whole lot is. However, in the GD II zone, Avesta Housing will be allowed to take advantage of the two-thirds of the 29,500-square-foot former Chapter 11 property that is not in the shoreland zone, in proposing its 21-unit, three-story affordable housing complex for the elderly and disabled.

Berkowitz said the DEP’s final order also reflects a change from what was approved in that regard, in that the agency ruled that “we don’t have the right to extend the shoreland zone greater than what it is” already, in terms of the 250-foot setback. He said Avesta, which will submit its plans to the town by the end of this month, “needed to have 21 dwelling units to make the economic model work.” They originally designed an L-shaped building that fronted on Main Street, with a rear section running along Gibbs Avenue, and parking in the rear, but had to change the design to position more of it running lengthwise along Gibbs Avenue, so as to avoid the portion of the lot in the shoreland zone. The plans now call for parking at the corner of Lower Depot Street and Main Street.

“There’ll be 16 units outside of the shoreland zone, and five inside,” Berkowitz said. “That’s why we needed them to drop it to 4,000 (square feet minimum lot size),” he said.

Berkowitz said he plans to have residents vote on the DEP’s language this June, even though the DEP’s order would still hold, even if the voters reject it. Zaidman said it bothered him that “the taxpayers haven’t had a fair shake to vote on it,” adding, “Why waste the paper?”

Berkowitz said, “Maybe it’s the bureaucrat in me that says our records ought to reflect what was approved.”

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