2015-01-23 / Community

Subdivision plan faces opposition

Conservation commission member pleads with selectmen to pass moratorium
By Duke Harrington
Staff Writer

Could the Shops at Morning Walk, located at the corner of Route 35 and Morning Walk Lane in Kennebunk’s Lower Village, soon disappear? Developer Michael Spenlinhauer suggested at the Dec. 22 Kennebunk Planning Board meeting that the shops could become residential housing lots in order to reduce traffic, enabling construction of a nearby 15- lot subsivision on wetlands between Morning Walk and Emery lanes. (Duke Harrington photo) Could the Shops at Morning Walk, located at the corner of Route 35 and Morning Walk Lane in Kennebunk’s Lower Village, soon disappear? Developer Michael Spenlinhauer suggested at the Dec. 22 Kennebunk Planning Board meeting that the shops could become residential housing lots in order to reduce traffic, enabling construction of a nearby 15- lot subsivision on wetlands between Morning Walk and Emery lanes. (Duke Harrington photo) KENNEBUNK — A local developer has placed an option to buy on a 30-acre parcel said to be one of the “crown jewels” of Kennebunk wetlands, much to the chagrin of at least one member of the town’s conservation commission.

The proposal signals to some that Kennebunk may have passed the event horizon on projects that can gain easy approval from the town with limited teeth-gnashing from environmentalists. Meanwhile, the project, if approved, could mean the end to an innovative business incubator — The Galleries at Morning Walk — for the sake of residential development.

At the Jan. 13 meeting of the Kennebunk Board of Selectmen, commission member Arline Poisson asked the board to institute a moratorium on development at the site, located off Route 35 between Morning Walk and Emery Lane.

At the Dec. 22 meeting of the Kennebunk Planning Board, Michael Spenlinhauer of Seaport Development Group presented a sketch plan to turn the property, now owned by Charles and Constance Emery, into a 15- lot housing development. The proposal would disturb about 11,000 square feet of Priority 1 wetlands adjacent to Lake Brook Creek, an act Poisson referred to as a “travesty.”

“It’s been described in our comprehensive plan as being in the crown jewel of Kennebunk wetlands,” Poisson said. “How are we possibly allowing development of this type? How do we mitigate the impact of this on the environment?”

Poisson made what she called “a formal request” that selectmen institute a moratorium on development of any Priority 1, 2 or 3 wetland areas in Kennebunk “for 12 to 24 months.”

“I do not view this as a taking of private land,” she said, referring to the hope that zoning could be adjusted to ban development in such areas. “In fact, I view it as a protecting of private land, because we are in a trend of rising sea levels, and any destruction of wetlands contributes to that with the release of carbon dioxide.”

According to the National Oceanic and Atmospheric Administration, salt marshes and sea grass beds trap carbon dioxide — socalled

“coastal blue carbon” — which could be released upon development, contributing to accelerated climate change.

Poisson said a moratorium would “allow scientists to scientifically establish what we all know to be true” about coastal blue carbon. Armed with that data, the town could then alter the comprehensive plan and zoning regulations to ban disrupting prime wetland areas in town.

However, selectmen seemed less concerned with the potential of the proposed development to melt polar ice caps than with the very real possibility of a lawsuit, should they act to scuttle one particular, otherwise legal, project.

“If a contractor comes forth with a viable plan that passes all the criteria that’s laid out before the planning board, they have no choice but to allow it,” said Selectman Albert Searles. “They can’t just say no because they want to.”

“That’s one of the shortcomings of our comprehensive plan,” Poisson said.

“No, that’s one of the shortcomings of democracy, that you don’t just get to say no,” Searles said.

While a moratorium could serve to keep Kennebunk planners from doing something they don’t want to do, until rules can be established giving them the means to say no, Town Manager Barry Tibbetts suggested any attempt to establish a temporary ban on building might prove futile.

“I don’t think our legal counsel would recommend that we do it,” he said. “We’ve talked about building moratoriums before — around 2006-2007 a lot of communities looked at this — and there’s quite a set of details that would have to be developed in order to try and restrict building on land. Even though this may be from an environmental perspective, I’m not so certain that would be excluded from the requirements that were [established] at that time for trying to control growth.”

Poisson had hoped selectmen would call a special town meeting to establish her requested moratorium, but Chairman Kevin Donovan pointed out that the required array of public hearings on the topic, plus the statutory lead time for making absentee ballots available, would push any possible vote very nearly to the annual town meeting in June. Moreover, Tibbetts said Kennebunk’s charter demands that any special election scheduled within 90 days of the annual meeting get rescheduled to become part of that larger referendum process.

“Well, there’s time between now and June for the planning board to approve this if they choose to do so, and I don’t think they should do that,” Poisson said. “My intention is to attend all of the planning board meetings between now and June and advocate for them not approving any projects in wetlands areas in town.”

That may not be a tough sell. When Spenlinhauer presented his project alongside Stephen Doe, a senior landscape architect from South Portland civil engineering firm Sebago Technics, at the Dec. 22 planning board meeting, planners seemed less then enthused.

The main hang-up, however, was not so much the environment as traffic. Local ordinances require that any subdivision with 25 or more housing units, or one that is predicted to generate more than 250 vehicle trips per day, must have two routes of egress.

Spenlinhauer said one road into the development would be from the spur of Morning Walk Lane, which was built for that purpose. Because planners would include the Morning Walk subdivision into their calculations, and because that development already produces 227 vehicle trips per day, between homes there and The Galleries at Morning Walk shops, Morning Walk Lane could not serve as the only way in and out of the new development. However, the only other possible route, Emery Lane, now a 15-foot-wide private road, does not meet town road standards.

“If you’re looking for a town road, Emery Lane just isn’t big enough to function as that and we can‘t acquire additional land to widen that out,” said Doe.

Without the second road, the new project would be limited to just two housing lots, according to Town Planner Judy Bernstein.

Spenlinhauer asked the planning board to grant a waiver on the requirement for two roads and, allow instead 400 trips per day, or one about every three minutes, to and from Route 35 from Morning Walk Lane.

“I would be hard pressed to establish a precedent of that magnitude,” planning board member Richard Smith said. “Those are the zoning standards. Continually waiving them renders them less than effective.”

That prompted Spenlinhauer — in what seemed an attempt to flush out whether the board might be hiding environmental concerns behind traffic rules —to suggest he might be able to meet the “daily trips” rule unilaterally.

“Let’s be honest as much as we can with each other,” he said. “If asking for the variance is your real concern — and here Spenlinhauer punctuated “real concern” by flashing air quotes — “as an option, if the Shops at Morning Walk were able to be purchased, and not be retail, the trips-per-day there wouldn’t be an issue. We could then come to you without being forced to ask for a variance in order to develop that property back there. Morning Walk was built with a commercial component in mind, but if the shops were to become residential lots, I think we might have an opportunity of addressing that [traffic concern].”

Since opening in 2012, the eight cottages at the Galleries at Morning Walk have rented out regularly each season to a host of local artisans, including painters, photographers, jewel smiths and floral designers.

“I’d hate to have you say the variance is your main concern and have us come back and say, well, we’ve addressed that, and then have you guys come up with another reason or excuse for not wanting it,” Spenlinhauer said. “I don’t want to waste my time with something the board doesn’t want, or the neighbors don’t want.”

On that count, Spenlinhauer might have stopped right there, as a parade of abutting landowners got up to speak against the project.

“This area is one of the last remaining areas of its nature in the Kennnebunks and I don’t know how much more we want to give away,” said Emery Lane resident Patricia Perry. “It’s somewhat distressing to me that this area of Lake Brook could be under such attack for such a long period of time.”

Spenlinhauer, through a different company, Seagrass Lane LLC, is behind another development, approved last year in a town vote for a special contract zone that project would disturb 15,000 square feet of Priority 1 wetlands on the opposite bank of Lake Brook from the new proposal.

“That whole area is fast disappearing,” said Perry. “If the Kennebunks is not about the sea and the salt marshes, I don’t know what we’re about. While the impact of having 16 new homes all along our property line would be devastating for my husband and I, we have a long history on this property, and to see it overdeveloped in this way is heartbreaking for us on a personal level. The assault on the habitat and the wildlife just breaks my heart.”

Meanwhile, Miriam Whitehouse, also of Emery Lane, had more practical concerns.

“I really worry if you put in a solid paved road there, even if you put in culverts, the water is going to run down hill and that could be catastrophic for our property,” she said.

Several residents sounded variations on those prevailing themes, with some saying they felt “intimidated” after Spenlinhauer interjected to say the property could be subject to development “even more horrific,” should his proposal not gain approval.

Because the site is within the Lower Village Business District, Bernstein said a small hotel might be possible, while planning board Chairman Chris MacClinchy said as many as 40 lots might be squeezed in, although the same traffic and environmental concerns would apply.

“This particular zone allows a lot of things to happen in a lot of different ways, and I think that’s important for people to understand,” Community Development Director Christopher Osterrieder said.

That led to the final word on the topic, at least for now, from Smith, who said Spenlinhauer’s current proposal is as likely to cause heartburn for environmentalists as any other in Kennebunk.

“As development has continued to grow, we have come down to more sensitive areas in what’s left to develop,” he said. “We are going to run into more and more instances of requests to develop what is left and I’m greatly concerned that the developments that we do approve, that we do so in a responsible way.

“It has become more and more difficult to do easy developments just because most of the easy land with no restrictions is gone. It’s already developed. So, we’re down to the tough developments,” Smith said.

“There’s no question you want to do a quality development,” planning board member Bob Metcalf said, addressing Spenlinhauer. “But there is a greater question of the overall sensitivity.”

“Lake Brook is an extraordinarily sensitive area. We need to protect it as best we can,” agreed Smith.

“But, as a planning board, we are constrained to follow the ordinances we have,” alternate member Alexsandra Jean said.

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