The Ogunquit Playhouse s Answers to QUESTIONS REGARDING THE PLAYHOUSE ZONE ed by Peter Kahn on March 24, 2019

Transcription

1 The Ogunquit Playhouse s Answers to QUESTIONS REGARDING THE PLAYHOUSE ZONE ed by Peter Kahn on March 24, Is the Ogunquit Playhouse Foundation the only legal entity involved with these properties? Is there an operating entity separate from the ownership entity? a. The Ogunquit Playhouse Foundation is a Maine nonprofit corporation incorporated in b. The Ogunquit Playhouse Foundation is the only owner of the Playhouse. c. The Ogunquit Playhouse Foundation is the only business entity that owns and operates the Playhouse. 2. The official Ogunquit Zoning Map posted in the Dunaway Center has been described as being for illustrative purposes only by the CEO Scott Heyland. Without a definitive zoning map and/or survey, the RP boundaries cannot be established. Can zone boundaries be definitely delineated (e.g.: a stamped survey)? a. CEO Heyland is presumably quoting 1.3(E) of the Zoning Ordinance, which says: The depiction of the Shoreland Zoning Districts on the Official Zoning Map of the Town of Ogunquit is merely illustrative of their general location. b. The boundaries of the RP District and other Shoreland districts can be definitely delineated on a survey of a parcel, if that survey is performed by a surveyor who either has adequate environmental training to identify natural features such as the normal high water mark, or who is assisted by another environmental professional who is qualified to identify those features. Once a qualified professional delineates the resources on a parcel that are relevant to a shoreland district boundary, the surveyor can show the exact location of those resources on a survey, measure any distances from those resources that are included in the Ordinance definition of the zoning district, and delineate the boundaries of that district on the survey. c. The surveying and resource-identification work needed to delineate the boundaries of shoreland zones is too complex and expensive to be performed on a town-wide or zone-wide basis. Neither is it performed in connection with a request

2 for a zoning amendment. Rather, it is done in connection with an application for site plan review of a proposed development on a particular lot. 3. During the Planning Board process were all abutters given proper notices? a. The Playhouse does not know what notices the Town sent. b. Under 1.9(C) of the Zoning Ordinance and 30-A M.R.S. 4352(10), notice to abutters is not required before the enactment or amendment of shoreland zoning ordinances. Under 38 M.R.S. 438-A (1-B), notice must be given only to persons whose property is being newly proposed for inclusion in a resource protection district. The SG3 Ordinance does not change the boundaries of the existing RP District. 4. Where can the most updated master plan be found in its entirety? Is it in the letter from Murray Plumb & Murray dated November 2, 2018? a. The most complete depiction of the Master Plan at present is contained in a booklet entitled Ogunquit Playhouse: Master Plan & Conceptual Design by Wilson Butler Architects (2015). A copy of that booklet is on file with the Town. The plans included in that booklet were shown in the Playhouse s PowerPoint presentations to the Planning Board on December 10, 2018 and February 25, Paper copies of those PowerPoint presentations are also on file with the Town. b. The letter from Murray Plumb & Murray dated November 2, 2018 includes a brief narrative description of the Master Plan, but does not contain the entire Master Plan. 5. Are there any other potential additions to the Master Plan that might be considered in the next 5 years; in the next 10 years? a. The Playhouse will probably renovate or replace the motel on Lot 5-42 at some point in the near future. b. The Playhouse has no present plans for any other additions to the Master Plan or improvements to its property.

3 6. If so, what are they and why are they not in the current Master Plan? a. What the Playhouse has been calling the Master Plan are the improvements to the Playhouse property conceptually designed by Wilson Butler Architects and shown in the booklet identified in the answer to Question #4. Wilson Butler Architects are experts in the design of theaters. Wilson Butler Architects were not asked to design improvements to the property other than those shown in the booklet. b. On August 11, 2014, the Planning Board granted the Playhouse site plan and design approval for replacement of the motel on Lot 5-42 with a 45-unit boarding house. The approved plans, Planning Board minutes, and other records pertaining to that approval are on file with the Town. There was no need for the Playhouse to ask Wilson Butler Architects to redesign a project that had already been approved by the Planning Board. 7. Is the Playhouse considering changes to Lot 5-42 currently occupied by a seasonal housing structure? a. As noted in the answer to Question #6, on August 11, 2014, the Planning Board granted the Playhouse site plan and design approval to replace the existing motel on Lot 5-42 with a larger, modern, and architecturally-attractive building. At that time, the Playhouse owned no other facilities for housing the actors, crew, and other employees who are present during the Playhouse s operating season. b. Although the Playhouse had planned to begin construction of the approved replacement facility on Lot 5-42 at the end of the 2014 season, the Playhouse was unexpectedly approached by the owners of nearby motels who offered to sell their properties to the Playhouse. The Playhouse suspended construction of the new facility on Lot 5-42 while it negotiated with those motel owners. In 2014, the Playhouse purchased the former Country View Motel and Guest House condominium at 1521 Route 1, York, Maine. Then, in 2015, the Playhouse purchased the property of Joseph Young, which included both Lot 5-44 in Ogunquit and a former rental cottage complex on an adjacent lot in York, Maine. c. While it was in the process of buying the above properties, the Playhouse suspended efforts to replace the motel on Lot However, the Playhouse continued to extend the site plan approval for that project for as long as possible. The approval finally expired on August 11, 2017, and cannot be renewed. The Playhouse plans to reapply for site plan and design approval of a new facility to replace the motel in the near future.

4 8. If no changes are planned, why does Lot 5-42 need to be included in the New Zone? a. Because the Playhouse does propose changes to Lot 5-42, this question is inapplicable. b. Including Lot 5-42 in the SG3 District is necessary to ensure that the design for a future replacement of the motel is compatible with the remainder of the Master Plan. c. Including Lot 5-42 in the SG3 District also severely limits potential uses of that property to ones that are compatible with the Master Plan. 9. If no changes are planned why does the Chamber s lot need to be included in the New Zone. a. If the question is referring to changes to Lot 5-42, this question is inapplicable for the reasons given above. b. If the question is referring to changes to Lot presently owned by the Chamber, one of the Playhouse s rationales for including it in the SG3 District is that, although the Chamber property is not currently for sale, the Playhouse hopes to purchase the Chamber property at such time as the Chamber decides to list it for sale. Such a conveyance would unite all lots in the SG3 District in common ownership by the Playhouse and allow it to use the Chamber s property for theater-related purposes. c. While the Chamber remains the owner of Lot , the Playhouse has no means to regulate how Lot is used unless that lot is included in the SG3 District. The SG3 District limits the permissible uses of that property to its present business/professional office use and a very limited range of uses that are compatible with the remainder of the Master Plan. Of the few other commercial uses permitted on Lot , virtually all of them are allowed only as an accessory use to a nonprofit performing arts theater. No residential uses would be permitted on Lot

5 10. Please clarify the information about house seating capacity. How many seats are there now and how many do plan to have in the future? 600, 700, 800? a. The amount of seating at the Playhouse has varied over the years. Although the Playhouse has, in the past, offered over 700 seats, at present the Playhouse contains about 660 seats. b. Under the Master Plan, in order to render the seating on the first floor more comfortable, allow more direct views of the stage, enhance ADA compliance, and widen the aisles, it may be necessary to remove a significant number of seats from the first floor and relocate them to a small balcony or mezzanine. It is possible that, with the addition of such a mezzanine, the total seating capacity of the Playhouse may increase to about 800. However, because the mezzanine is still at a conceptual stage, the amount of seating it might contain is yet to be determined. 11. Will the public be able to see graphically the limits of the zoning included heights, massing, and lot coverage on the Master Plan? a. The Wilson Butler booklet described above shows proposed conceptual plans of the improvements included in the Master Plan. Although the booklet depicts the proposed massing and lot coverage of the improvements, it does not show the precise height of those improvements. b. The exact height of the improvements to the Playhouse building, with special emphasis on the fly tower and back-of-the-house additions, were shown in the Playhouse s PowerPoint presentation to the Planning Board on February 25, 2019, and its PowerPoint presentation to the Select Board on March 19, A paper copy of the Playhouse s PowerPoint presentation of February 25, 2019 is on file with the Town. c. All improvements shown on the Master Plan must receive site plan review. The public will be able to review detailed engineering diagrams, architectural drawings, and site plans for each improvement shown on the Master Plan when the Playhouse applies to the Planning Board for site plan and design approval of that improvement.

6 12. What is the DEP s opinion on manufacturing, industrial, and gas station uses in our Shoreland Zones? a. On September 25, 2018, the Playhouse sent to the DEP a 13-page letter describing the improvements proposed under the Master Plan and asking whether the DEP would support rezoning the area adjacent to the theater as a Shoreland General Development District. The Playhouse s letter included a description of a proposed production facility for the manufacture and painting of scenery and props. Because the Master Plan includes neither industrial uses nor gas stations, the letter did not ask the DEP s opinion concerning such uses. b. By dated September 28, 2018, Mike Morse, the assistant DEP Shoreland Zoning Coordinator, stated that the Department agrees that the area could be considered for re-zoning, and the characteristics and uses of the area are sufficiently close enough to a general development type of district that it could be considered. We will work with the Town should they choose to propose an amendment to the zoning map and/or ordinance. c. In Table 1 of the DEP s Guidelines for Municipal Shoreland Zoning Ordinances, all commercial, industrial, governmental, and institutional uses are permitted in a Shoreland General Development District after Planning Board review and approval. However, the proposed SG3 Ordinance is far more conservative than what the DEP allows, and is even more restrictive than the existing SLC District with regard to the uses permitted on the property. 13. What is the plan for the building where scenery, set, & props are currently fabricated? Will it remain in the farm district or will it be brought onto the new zone? If it will remain in the farm district, what assurances will be provided to that effect? Obviously, the concern is that there may be no plans today, but plans may change at any time in the future. a. The Playhouse has never entirely ceased building scenery, sets, or props for its productions on the property proposed for the SG3 District. b. As part of the Master Plan, the Playhouse proposes to build most, if not all, of the scenery, sets, and props for its productions in a new, state-of-the-art facility, equipped with pollutant-containment systems, located to the northwest of the existing theater in the SG3 District. c. The Master Plan relates only to the historic Playhouse property on Route 1. It was prepared in 2015, more than a year before the Playhouse acquired the property on North Village Road. The Playhouse will determine its ultimate plans for the North Village Road scene shop in the future, after the Master Plan is implemented.

7 d. The Playhouse acquired the North Village Road property because it was then the only other location, within a reasonable distance of the Playhouse, in which the Playhouse could fabricate a significant portion of its scenery, sets, and props. However, the North Village Road scene shop is inadequate for all the Playhouse s needs. For example, the building is too small to allow for the construction of fullsize sets indoors. In addition, the Playhouse is frequently required to transport large and fragile set materials between the North Village Road scene shop and the Playhouse, using Berwick Road and Route 1, when summer vehicle traffic on those roads is at its peak and most hazardous. 14. If there are no plans to move the scenery facility, can the use be deleted from list of approved uses in the Proposed Zone. a. Because the Playhouse does intend to move scenery production to the Playhouse campus within the SG3 District, the question is inapplicable. 15. If there are no plans to move the scenery facility, can the manufacturing wording be removed from the list of uses? If not, what activities are anticipated of a manufacturing nature as it relates to a Theater? Does the word manufacturing need to be defined and how would it be defined? a. Because the Playhouse does intend to move scenery production to a new, modern, and appropriate facility within the SG3 Zone; and because there is no other use category in Table that describes such activity; manufacturing must remain an SPR 12 use in the SG3 District. b. Because many terms in the Zoning Ordinance are not defined, Article 2 of the Zoning Ordinance provides that undefined terms are given the [d]efinitions found in a standard Webster s dictionary of the current decade. c. Although the on-line version of the Merriam-Webster Dictionary does not separately define manufacturing, it defines the verb manufacture, from which the noun manufacturing is derived, in the following ways: 1 : to make into a product suitable for use 2 a : to make from raw materials by hand or by machinery b : to produce according to an organized plan and with division of labor c : PREFABRICATE // a manufactured home

8 3 : INVENT, FABRICATE // known to manufacture evidence 4 : to produce as if by manufacturing : CREATE // writers who manufacture stories for television The fabrication of scenery, sets, props, and similar materials for use in Playhouse dramatic productions would fall within definitions 1, 2(a), 2(b), and/or 2(c) above. d. No matter what definition of manufacturing is used, however, manufacturing is allowed in the SG3 zone only as an SPR 12 use that is, a use permitted with Site Plan Review, but only if it is an accessory use to a non-profit performing arts theater. e. Accessory uses are far more limited in type and intensity than principal uses. The Zoning Ordinance defines an accessory use as one that is customarily incidental and subordinate to the principal use. This means that any manufacturing allowed in the SG3 District must be (1) commonly practiced or used in connection with a non-profit performing arts theater ( customary ); (2) relatively minor ( incidental ), and (3) of less importance than, or subservient to, the non-profit performing arts theater itself ( subordinate ). Thus, the only type of manufacturing that would be allowed in the SG3 District is the limited range of fabrication commonly conducted in connection with a non-profit performing arts theater. f. The meaning of manufacturing is also narrowed by the definition of nonprofit performing arts theater contained in the SG3 Ordinance: The term non-profit performing arts theater shall include all subsidiary uses customarily associated with the presentation of theatrical productions, including, but not limited to, on-site fabrication of sets, scenery, props, and costumes; 16. When will the Town seek guidance from the DEP and Town counsel? Will it be after the Town vote on this proposal or before? a. As described in its answer to question 12 above, on September 28, 2018, the Playhouse obtained an opinion from the Maine DEP that it considers the Playhouse property as being suitable for inclusion in a Shoreland General Development District. The Playhouse obtained that opinion from the DEP before it first wrote to the Planning Board to suggest the potential adoption of the SG3 District on November 2, b. Under 1.9(D) of the Zoning Ordinance and 38 M.R.S. 438-A(3), within 10 days after the Town amends a shoreland zoning ordinance, the Town Clerk must

9 send the amendment to the DEP for review by the Commissioner. The amendment becomes effective when the Commissioner approves it or within 45 days after he or she receives it, whichever comes first. c. The Town may seek guidance from its Town counsel at any time. 17. Other than the scene barn and the footbridge, are there any other structures in the RP? The small building at the north end Lot 5-42 appears on the town GIS map to be less than 75 feet from the edge of the Josias River. Shouldn t a survey and an official zoning map be provided to show specifically where all structures are currently located? a. Currently, the historic scene barn and footbridge are the only structures within the RP District. The historic scene barn presently is within 75 of the normal high water mark of the Josias River. However, the Master Plan calls for the relocation of the historic scene barn so that it is about 80 southwesterly from the nearest boundary of the RP District. b. The Playhouse interprets the second question as referring to the proprietor s unit for the existing motel on Lot Although that unit is within 75 from the normal high water mark of the Josias River, its setback is legally nonconforming. That unit is not located in the Resource Protection Zone. c. A survey showing where all existing structures are located on the property would produce no information relevant to the adoption of the SG3 Zone. Wherever those structures are currently located, they are grandfathered to remain in that location whether the applicable zone is the SLC District or the SG3 District. Under the Master Plan, the only building that is now within the RP District the historic scene barn -- will be relocated well beyond the nearest RP District boundary. c. The Official Zoning Map does not show the location of existing structures. It only shows the boundaries of zoning districts and lots of record. d. The Zoning Ordinance does not require a survey before the Official Zoning Map is amended. However, a survey of existing and proposed structures will be required under 6.6(E) of the Zoning Ordinance when the Playhouse applies for site plan review of each improvement included in the Master Plan.

10 18. With regard to the Deed restrictions, to which lots do the restrictions apply? Does it include the Chamber and Motel properties? a. The deed restriction limiting use of the property to a nonprofit theater applies to Lots 5-33-B and b. The deed restriction requiring that a portion of the property remain forever wild applies to Lot 5-33-B. c. Neither of those deed restrictions applies to the Chamber or Motel lots. 19. Since the deed restriction applies only to the property granted from John Lane to the Playhouse Foundation, what prevents the other lots from use that is not related to nonprofit theater and accessory use? a. With the exception of boarding houses, business/professional offices, and public buildings, the proposed SG3 Ordinance prevents the Chamber and Motel Lots from being put to any commercial, governmental, or institutional use that is not accessory to a nonprofit performing arts theater. b. In addition, the SG3 District prohibits all residential uses of any kind. 20. If the Playhouse ever violates the deed restriction, and the grantor s heirs did not exercise their right to reclaim, what are the consequences? Also, can this deed restriction be changed by contract or otherwise with the heirs agreement? Could they enter into a separate agreement to never exercise their right under the deed? a. If the Playhouse were to violate a deed restriction, and the grantor s heirs did not immediately assert their title to the property, nothing would happen immediately. However, the continuing possibility that the grantor s heirs could reclaim the property in the future would render the property unmarketable as a practical matter. b. The deed restrictions cannot be altered by a mere contract or agreement with the grantor s heirs. The only way the restrictions could be eliminated is if the grantor s heirs conveyed to the Playhouse their right to enforce the deed restrictions, in an instrument equivalent to a deed. Unless and until those restrictions are

11 permanently deeded back to the Playhouse, the grantor s heirs could breach any mere agreement with the Playhouse and still take action to reclaim the property. 21. Assume that this proposed change is not be accepted by the voters, and further assume the Playhouse wants the project to move forward, what zoning or other changes would be required (whether you deem them achievable or not)? a. The Playhouse does not entirely understand the question. If the voters reject the SG3 Ordinance, and no other zoning or other changes are achievable as a practical matter, unachievable zoning or other changes would accomplish nothing. b. The Playhouse thought long and hard about its alternatives before requesting that its property be rezoned as a Shoreland General Development District, but found no viable alternatives. c. Contract zoning is unavailable under 1.9(F) of the Zoning Ordinance, because it is authorized only to allow certain properties in the Farm District to engage in Light Industry. Moreover, a majority of the voters have made clear that contract zoning of any kind is currently unacceptable. d. Because most of the Property is within 250 of the Josias River, it is subject to state-mandated shoreland zoning. Therefore, the Town could not legally rezone the Playhouse property as a Farm District where light industry might be allowed under a contract zone. At best, the Playhouse property could remain in the SLC District. e. Assuming that the Town wanted to keep the Playhouse property in the SLC District, then in order to allow the Playhouse to implement the Master Plan, the Town would have to amend the use and dimensional regulations applicable to the entire SLC District. The SLC District is located not only on the Playhouse Property. It also covers a long stretch of the shoreline along Marginal Way south of Ogunquit Beach; an area between Littlefield Village Road and Kingfield Avenue; and parcels near Route 1 at the boundary of Ogunquit and Wells. Amendments to the SLC zone would apply to all areas shown on the Official Zoning Map as being within the SLC Zone. g. More specifically, in order to make it possible for the Playhouse to accomplish the Master Plan within the SLC District, the Town would have to amend the Ordinance to (1) make a non-profit performing arts theater a permitted use within all SLC Districts; (2) adopt different definitions of the terms accessory use, driveway, and parking area that would apply within all SLC Districts; (3) increase the maximum height restriction to 85 within all SLC Districts, and (4) raise the maximum building coverage to 70% within all SLC Districts. Even if the Town favored that result which seems highly unlikely such amendments would subject

12 the Town to far greater change than would result from adopting the SG3 Zone. The only legal means to confine zoning changes to a specific area of the Town is by creating a separate zoning district for that area as is expressly authorized by 1.3(D)(3) of the Zoning Ordinance and the DEP Guidelines for Municipal Shoreland Zoning Ordinances. h. In any event, it would be legally impossible for the Town to increase the maximum height to 85, or the maximum building coverage to 70%, within the SLC District. The DEP allows such dimensional standards to be increased only in a Shoreland General Development District or a Commercial Fisheries/Maritime Activities District. The Playhouse property could not meet the definition of a Commercial Fisheries/Maritime Activities District, because none of the existing or proposed uses of the property are functionally water-dependent uses (which are defined as uses that require, for their primary purpose location on submerged lands or that require direct access to, or location in, coastal or inland waters and that cannot be located away from these waters. ) Therefore, the maximum height applicable to the Playhouse property would remain at 35, even though 85 is needed, and the maximum building coverage would remain at only 20%, even though 70% is needed and the existing building coverage on some of the lots is already 40%-50%. i. Therefore, the only legally-valid means by which the Town can allow the Playhouse to modernize its facility so as to remain viable for the future, without disrupting the entire SLC District, is if it adopts the SG3 District as a Shoreland General Development District. 22. If the only option was variances, etc. (assume no New Zone) what would be proposed to accomplish the Playhouse s needs? a. The Board of Appeals could not legally grant the necessary dimensional variances to implement the Master Plan, because the Playhouse cannot satisfy at least one of the approval criteria for each of the variances described in 5.2(B) of the Zoning Ordinance. b. Under 5.2(B)(1)(b) of the Zoning Ordinance, establishment or expansion of a use otherwise prohibited shall not be allowed by variance. Accordingly, the Board of Appeals has no authority to grant a variance to make the Playhouse a conforming use in the SLC Zone or to exempt the Playhouse from the provisions of 3.2 of the Zoning Ordinance that severely limit the expansion or enlargement of nonconforming uses. Those are the very reasons why the Playhouse needs the SG3 Ordinance so urgently.

13 23. How do proposed changes effect existing Town businesses (e.g.: will events such as wedding compete with existing businesses)? a. Adoption of the SG3 Zone would only render a non-profit performing arts theater a permitted use on the Playhouse property and allow the Playhouse to be modernized in harmony with the Master Plan. It would have no tendency to increase competition with existing businesses. To the contrary, a modernized Playhouse is likely to attract even more theatergoers and thereby generate more revenue for Ogunquit restaurants, hotels, B&B s, shops, and other businesses. b. The primary use of the Playhouse property is a non-profit performing arts theater as narrowly defined in the SG3 Ordinance. There is no other such business in the Town of Ogunquit with which it competes. 24. Can a site-walk be scheduled for the public, including both the Playhouse sites on Route 1 and on North Village Road? a. The Zoning Ordinance does not require a site walk as a precondition to an amendment of the Zoning Ordinance or of the Official Zoning Map. b. The Playhouse always welcomes opportunities to show and explain its facilities to the public. It is therefore willing to allow a site visit, at any mutually convenient time, as a courtesy to the public. The Playhouse simply requests that any such site walk not be scheduled so as to delay the Select Board s decision whether to place the SG3 Ordinance on the warrant for the June, 2019 Town Meeting.