Legal wrangling clouds South Portland condo project

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SOUTH PORTLAND — A local builder is making another attempt to develop a forested wetland area near Wilkinson’s Woods.

Steve Berg, a trustee of the Scarborough-based JDR Trust, would like to build 40 single family homes on nearly 18 acres of land located behind the Kingswood Park Condominiums at 751 Main St.

Preliminary plans for Kingswood Gardens Condominiums indicate that half of the units would be deed-restricted to people ages 55 or older. The project would be built in three phases over the course of about five years.

The Planning Board on Tuesday unanimously approved the preliminary plans, but not without raising concerns about the company’s storm-water management plan and the project’s environmental impacts.

Board members were particularly concerned about the project’s impact on the upland buffers and, to a lesser extent, wetlands.

The project would impact more than 45,000-square feet of upland buffer and nearly 4,300-square feet of wetland located in the Nonesuch River Watershed between the Scarborough Connector and Sunset Gardens.

Planning and Development Director Tex Haeuser encouraged board members to consider whether the plans meet the relatively new ordinance adopted by the city to discourage such impacts.

The local ordinance requires developers to take reasonable steps to avoid wetland and upland buffer alteration, both of which are valuable wildlife habitats and help clean storm-water runoff.

Board members Steve Jocher and Curt Yenche pressed an engineer from Sebago Technics about whether she had tried hard enough to avoid those impacts. The board members believed there may be viable alternatives.

Jocher said portions of 10 of the 40 units proposed were located in the upland buffer. He was not swayed by the project’s use of previous pavement in the driveways and other commonly accepted storm-water tools.

“My understanding is the buildings are taking some of that space of the upland buffer, which is used to treat water,” Jocher said. “I’m not clear how the pavers replace that.”

Haeuser said the city ordinance is not intended to destroy the feasibility of development projects and allows developers to pay a compensation fee when wetlands and buffers cannot be preserved.

The current plans would require JDR to pay the city more than $67,600 for upland buffer impacts and more than $8,500 for wetland impacts. That money would be used for other wetland projects in the city.

Sebago Technics engineer Kiley Mason, who presented JDR’s plans on Tuesday, said further revisions could tip the scales to where the project would no longer be viable.

“Certainly, with 40 units, there comes a point where this is no longer feasible,” Mason said.

Mason said this is the third time JDR Trust has changed its development plans.

Last year, the developer pursued a zoning change that would allow the construction of up to 142 housing units. The development proposal at the time, however, only called for 57 units.

The zoning change request was denied by the board and subsequently withdrawn by Berg.

Over the last year, there has been a behind-the-scenes legal battle between Berg and the residents of the Kingswood Park Condominiums over easement rights to the property, which sits behind the complex.

Berg sued the condo association and all 128 condo owners for easement rights to the undeveloped property, which can only be accessed through the existing complex.

Both properties were originally owned by Gavin Ruotolo, the owner of JDR Trust.

David Hirshon, the attorney who represented the condo owners, said on Wednesday the lawsuit was settled when Berg offered “considerations” in exchange for those access rights, including paying for road maintenance, a gate to prevent cut-through traffic and buffering.

Condo resident Keith Bellas said in an interview Tuesday afternoon that condo residents, many of whom are low income, were frightened by the lawsuit and chose not to fight it, even though many opposed granting JDR the easement.

Bellas said one of those “considerations” was a $15,000 payment to the condo association. But Hirshon said on Wednesday that was not accurate, and would not disclose the exact terms of the settlement.

Planning documents indicate JDR has also agreed to grant public hiking trail easements to the city and South Portland Land Trust.

During the Planning Board meeting, condo owner Peter Hall said he was concerned about the traffic impact of the project, saying it’s “a nightmare” to exit the condo complex onto Route 1/Main Street.

Steve Sawyer, of Sebago Technics, said the increase in traffic will be minimal, since the development will be deed-restricted to people ages 55 or older. The development would generate 15 peak morning trips and 18 peak evening trips.

Although the increase doesn’t meet state requirements for a traffic light, planners seemed to be willing to petition the state for one.

“If a traffic signal is at all possible, now’s the time to get it in,” Haeuser said.

While the access to the proposed development has been settled, there is one more legal issue that needs to be resolved before the plan can receive final approval.

Attorneys for the developer and condo owners need to resolve a conflict of an alleged encroachment of certain storm-water facilities.

Board members, meanwhile, had several other questions that went unanswered on Tuesday night.

Among them were the qualifications of the independent wetland consultant, the projected project cost and design, the developer’s financial capability, condo association documents, and landscaping plans.

Although several neighbors seemed upset over losing the forest behind their condos, Planning Board Chairwoman Caroline Hendry said the city had to evaluate the project in accordance with the city code.

“I certainly understand how the neighbors feel,” Hendry said. “(But) this is private property and the owner wants to develop it.”

Mason estimated it would be about four months before development plans would be ready for final review.

Randy Billings can be reached at 781-3661 ext. 100 or rbillings@theforecaster.net

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