08-18-2014 Planning Commission Packet

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MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday, July 21, 2014 6:30 o’clock p.m. _____________________________________________________________________________________ Page 16 of 30 Gaffron stated Staff does not have any evidence that the existing grade was changed by erosion, and until that evidence is provided, Staff cannot buy into that argument. Chair Leskinen opened the public hearing at 7:47 p.m. Mark Thieroff, Attorney-at-Law, stated he represents Renee Meerkin and Claus Weiler. Thieroff stated there are two reasons why this application cannot be considered at this point in time, and the first is the existence of the Special Lot Combination Agreement. The second is that it requires additional variances that have not yet been applied for and that the City should not be acting on a partial application. As it relates to the Special Lot Combination Agreement, Thieroff noted it was alluded that Paragraph 4 of the agreement prohibits the City from granting the variances that have been applied for tonight unless and until that Special Lot Combination Agreement is terminated. Thieroff noted termination occurs through a successful subdivision. The applicants sought a subdivision and were denied, which means the agreement remains in effect. Thieroff stated his clients have enforceable rights under that contract and that they should not act in a way that would breach the contract. Thieroff stated as it relates to the lawsuit, as Mr. Cavanaugh clarified, the lawsuit has been filed and the City has been sued. There is an informal agreement in effect granting the City an extension of time to engage in that litigation. Thieroff stated he understands that the attorneys are attempting to resolve the lawsuit and that what is being done today is an attempt to characterize what variances are required. Thieroff stated in his experience that is done at a Staff meeting. Thieroff noted the applicants have not applied tonight for conditional variances but that they are asking the City to grant variances which would be legally enforceable if they are granted. Thieroff stated the application is premature and that in his view it may be creating more problems than it might potentially solve. Thieroff stated there are three additional variances that are not being requested that are necessary in this situation, and the first variance is from the total prohibition of constructing a house in the bluff impact zone. Thieroff indicated he did speak with Staff about this and was told that Staff has concluded that it is not in the bluff impact zone. Thieroff stated he would like to hand out a one-page analysis which includes a profile of the bluff that the property is located on. According to the City’s regulations, there is a horizontal requirement and a vertical requirement. The horizontal requirement and the threshold requirement is that there is a 50-foot stretch of land horizontally where there is an average slope of at least 18 percent. The beginning of that is called the toe. The second step of the analysis is whether there is the requisite vertical slope and whether there is an average slope of 30 percent or more. Thieroff stated when Staff performed their calculation, they determined that the toe is at the 439-1/2 foot elevation since that was at least an 18 percent grade point. Staff then calculated the average slope increase above the 25-foot mark and determined that T-1, T-2, T-3, and T-5 come in under 30 percent. Thieroff noted those measurements are very close to the 24-foot mark. Thieroff stated if the toe is placed at 942 feet, 50 feet out from there is an average slope increase of 18 percent. Thieroff indicated he then calculated the average slope increase at T-1, T-2, and T-5, which shows that there is an average slope increase of at least 30 percent at those points except for T-1, which would make this bluff land. Thieroff stated it is his belief that the bluff is one of the issues that Mr. Gaffron was referring to when he thought there might be grounds to table the application. Thieroff stated in their view it is grounds to deny Item #01 - PC Agenda - 08/18/2014 Approval of Planning Commission Minutes [Page 16 of 30]