YORK, Maine — A development that a number of nearby residents oppose – which intends to bring 10 elderly housing units to the York Heights neighborhood – has been given a green light to pursue final approval from the Planning Board for the proposal.

The developer was denied by the town’s Planning Board in August but found a more sympathetic audience on the Appeals Board, which granted the appeal for the preliminary approval. The Planning Board still must give final approval for the project to go forward.

The matter went before the Appeals Board on Wednesday, Nov. 10, and the meeting room was filled with dozens of abutters who have protested the development since 2019. 

“The only reason why it’s here is the Planning Board didn’t do what they were supposed to do,” said Appeals Board Vice Chair Joe Carr.

Previous story: ‘Too much’? York neighbors balk at plan for 10-unit elderly housing project

The project, now known as Long Sands Village, was denied preliminary plan approval on Aug. 26 by the Planning Board. Only four board members were present, and the vote was split 2-2. 

Town Planner Dylan Smith, who spoke on behalf of the town at the meeting, said an appeal of this kind is a “very unique circumstance” citing the 2-2 vote and two members feeling the proposal had “items missing.”

Previous story: York Planning Board curbs 10-unit housing project

Opponents come out again

Several York Heights residents who signed a petition opposing the scope, design and density of the project attended the Nov. 10 meeting, as did Portsmouth attorney Monica Kieser, who represents Kevin O’Shaughnessy, a direct abutter to the proposed project.

Kieser previously submitted a petition, which had 40 signatures, on behalf of O’Shaughnessy. 

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The petition questions whether the developer complied with zoning setback requirements by designating the front of the project as Long Sands Road, when the bulk of it will be on Fernald Avenue on the opposite side of the lot. The petition also questions if the parking as proposed, 13 spaces for 10 units, is adequate. 

Later on, developers eliminated driveway access on Long Sands Road from the proposal and made Fernald Avenue the sole entrance and exit. 

Smith, who said he was not present at the Planning Board meeting where the preliminary plan was denied, said he felt the applicant had met the requirements for preliminary approval, though not final approval. 

“I think there were still some things that needed to be tightened up, but I think … for preliminary plan … they had that,” Smith said. 

Outstanding issues include a dispute over a claim to a portion of the land, Smith said. 

If the Planning Board grants preliminary approval, it’s an “expression of approval of the design” to guide the final development, Smith added. 

The case for the appeal

The Appeals Board heard about four distinct issues that were the basis of denial: traffic, municipal solid waste disposal, conflicting with the town’s comprehensive plan and storm water runoff.

Attorney Greg Orso, who represents the developer, argued that the applicant adequately addressed the four issues ahead of the meeting in August. Additionally, Orso cited legal precedent that supports the developer’s argument the Planning Board cannot cite the comprehensive plan as a compelling reason to deny an individual applicant. 

“If you want to make the ordinance consistent with the comprehensive plan, change the ordinance … as opposed to having an additional goal or additional requirements put on the applicant,” Orso said. 

Issues addressed

After two site visits and several presentations dating back to 2019, the York Planning Board denied the request. When the applicant was denied, Planning Board Chair Kathleen Kluger referenced the town’s comprehensive plan, along with other objections, referencing sections of the town zoning ordinance.

“I believe that the type of this construction, the number of units, the proportion of the units to the placement on the lot, are not appropriate for the location and type of development,” Kluger said at the time. “I do not believe this application conforms to the comprehensive plan.” 

Geoffrey Aleva, vice president and senior project structural engineer with Civil Consultants of South Berwick, spoke on behalf of the development team in August and during the Appeals Board meeting.

Aleva indicated the applicant would ask the Planning Board to grant both preliminary and final approval through a waiver of the normal two-step process. After hearing the objections, the applicant limited its request for action to preliminary approval, and was subsequently denied. 

Comprehensive plan

At the Appeals Board meeting, Orso presented a memorandum from town attorney Mary Costigan dated Feb. 11, 2021, which addressed how the comprehensive plan should be considered during the Planning Board process. Orso read from that memo during the meeting.

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“The comprehensive plan, section 129 of the site plan and subdivision regulations, does not confer authority to the planning board to deny an application for not conforming with the comprehensive plan,” Orso said. 

Furthermore, the document states that the planning board’s application of the comprehensive plan is “beyond the scope of their jurisdiction.” 

“The two are not meant to be interchangeable,” Orso said. “The ordinance is the translation of the comprehensive plan’s goals into measurable requirements for applicants.”

Orso said the Maine Supreme Court determined that a town, not an individual applicant, is responsible for adopting aspirational goals from the comprehensive plan into its bylaws.

Orso referenced a 2009 case, Nestle waters v. the Town of Freiburg, which determined that a comprehensive plan should be an aspirational guide for towns to accomplish. The town’s ordinance should then be adjusted to ensure the objectives of the comprehensive plan are realized. 

Other issues the Planning Board had with the plan, which include traffic, municipal solid waste disposal and stormwater runoff, were addressed by senior project structural engineer Aleva. 

Abutters have argued a traffic study should’ve been conducted; however, the town’s ordinance does not require a traffic study for this scenario, according to Aleva.

According to Aleva, Public Works Director Dean Lessard looked at the traffic memo provided and agreed the traffic generation from this project did not warrant requirements for further study.

The applicant said town staff, York police, York Fire and Public Works have all reviewed the proposal and have indicated “no issue” with access to the site. 

Stormwater runoff

Stormwater drainage was discussed at length at Planning Board meetings, based upon the applicant’s request to waive a high-intensity soil survey designed to determine drainage issues. According to Aleva, there is no reason for such a study because the engineers for the project are assuming a “worst-case scenario” and planning for it accordingly.

Because of how the land breaks, some of the water flows down towards Long Sands Avenue and some of it hits a neighbor’s property, Aleva said. To fix this, developers added a diversion along the side to capture the stormwater so it doesn’t go on the neighbor’s property.

After the town reviewed the stormwater drainage, revisions were submitted to the town for review based on meetings with the Planning Board, Aleva said. 

Developers prohibited the addition of gutters for stormwater mitigation as well, Aleva said. A gravel drip-edge on the buildings will direct the stormwater that flows off of a roof area to a gravel section before it’s discharged out, as opposed to running straight off the land. The flow through the gravel area along the side of the building will treat the stormwater and slow it down, Aleva said. 

Trash disposal

Another concern of the Planning Board was with municipal solid waste disposal. Each tenant would house and have their rubbish and recycling inside their unit. Aleva said that private companies will be contracted to provide landscaping maintenance and trash recycle pickup. 

“It is not atypical to have that waste stored inside a unit until it’s ready to be picked up by a private system,” Aleva said. 

Before taking a vote, Appeals Board Chair Britton Garon said she believes the plan is a workable document that aligns with the goals of the town to build more elderly housing.

“In recognition of all of you that came out this evening … it is always difficult to sit up here and make judgments that we know will affect you and your livelihood and your primary residence and the safety of your neighborhood,” Garon said. “At the same time, we as most people in town are controlled and governed by the ordinances that you vote on, and it’s our job to uphold those.”

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York senior housing project developer wins appeal. Neighbors still fighting project. – Seacoastonline.com
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