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Town Seal
Board of Appeals Minutes 09/01/09
Town of Buxton  
Board of Appeals Minutes
Tuesday, September 1, 2009

Members in attendance:  Stephen Heroux, Dennis Sweatt, Charlene Libby and Jack Hanna.

Members absent:  Peter Leavitt

Others in attendance:  Richard & Chad Emery and Fred Farnham, Code Enforcement Officer.

Chairman Stephen Heroux welcomed the applicants to the meeting at 7:01 pm by announcing that they do have a quorum with four members and announced the procedure for the meeting.  

A public hearing for Chad & Richard Emery of 51 Mill Road have submitted an application for a variance to reduce the front yard setback by 8 feet. Tax Map 3, Lots 24A.
"         Jack motioned to open the public hearing for a front yard variance review for Richard and Chad Emery, seconded by Charlene, the motion passed with a 4 - 0 vote.
Richard Emery submitted additional information, which included a diagram, photos and a no action letter from the Code Enforcement Officer.  Mr. Emery is asking for an 8-foot variance off the required 50-foot private right of way for his son's new house.  Mr. Emery was told the tree line was the property line.  During a bank mortgage survey review, the pins were found with a metal detector and it was then discovered that the foundation was only 42-feet from the property line.  Mr. Emery was working off the wrong marker and the foundation was placed too close to the property line.  The bank then requested a no action letter from the Code Enforcement Officer.  
Mr. Emery said he misunderstood the location of the property line.  Mr. Emery added the house was turned at an angle due to the perk test and location of the septic system.  Property was purchased approximately 4 years ago.  The dotted line indicates the elevation.

Fred Farnham, Code Enforcement Officer explained that one of the considerations is that the foundation is for a modular home not a stick built home and it is already been ordered and in the process of being built.  The house cannot be changed to fit a new foundation.  The layout and site visit was made on May 15th to inspect the septic location and the corners of the house.  Everything was in place, but did not check setbacks at this time.  Fred did not see the pin at the foundation inspection.  At the end of the ROW corner of Chad's lot there was an iron rod visible and two pins and the tree line was at the right of way that followed the driveway.  The real pin was found during the mortgage inspection.  The pin was found further down in the tree line and closer to the foundation.  The ROW is not typically included in any setback.  
Charlene asked what the alternative option would be if the variance did not go through.  The only alterative was if Chad owned the ROW in front of the foundation.  The ROW would remain a driveway.  The suggestion was made that Richard could deed the 50-foot ROW to Chad.  He would be creating the ROW across the 50-foot strip.  
Stephen summarized if the property was purchase with the 50 ROW?  Yes.
Chad's property was purchased at a later time.    Dennis said his only issued is with the fourth question - These conditions are not the result of action taken by the applicant for a variance or a prior owner.  But Dennis said he did create the problem because he did not know where the pin was.
Jack said the road was previously a private driveway - does the road have to be 50 feet?  Fred said yes in section 10.1.A of the ordinance requires a 50-foot ROW to access the property.     Stephen asked when the ROW was formed.  Mr. Emery stated when he purchased his property the ROW was his driveway and is part his deed.  Mr. Emery then purchased the abutting parcel, which he gifted to Chad.  Dennis asked if the 50 foot ROW could be infringed on.  Fred said no.
Stephen explained with it being the primary residence, under 6.2.B.2 of the ordinance would allow the Board to reduce up to 20% of a setback requirement, which would work since the Emery's are requesting an 8-foot front yard setback.
Having no abutters in attendance the board closed the public hearing -
"       Motioned by Charlene, seconded by Jack to close this portion of the public hearing.  The motion passed with a 4 - 0 vote.  

Stephen does not see how the fourth case of hardship could be met due to it being caused by the owner not finding the actual lot line pin and measuring from the tree line. Stephen also considered the alternative of going before the Planning Board for a subdivision amendment would rectify the situation and bring the lot in conformance with the ordinance.  
Stephen is concerned with this being the second case where a new construction setback mistake has taken place.  He doesn't think this ordinance was created to bail out those mistakes. Charlene agrees with Stephen and says we can only make decisions using the rules that are set forth in the ordinance.  Dennis said he visited the sight and it is a beautiful location, but agrees the hardship is the result of the applicant.  

Hardships answered by the applicant:
1.      The land in question cannot yield a reasonable return under the requirements of this
      ordinance unless the variance is granted; this does not apply and can be skipped.

2.      The need for a variance is due to the unique circumstances of the property and not the
general condition in the neighborhood; The applicant states that the septic field had to be shifted, which moved the location of the foundation also.
"       Dennis motioned that the applicant meets this condition because of the unique position or circumstances of the property, seconded by Charlene.  The motion passed with a 4-0 vote.

3.      The granting of a variance will not alter the essential character of the locality; There will be no impact; it's a single-family dwelling.
"       Motioned by Dennis that the applicant meets the granting variance will not hurt the character of the neighborhood, seconded by Charlene.  The vote passes with a 4 - 0 vote.

4. These conditions are not the result of action taken by the applicant for a variance or a prior owner; It is the result of the applicant's construction error and therefore does not see that they meet condition.  
"       Stephen made the motion in the affirmative that he meets the requirement for the fourth hardship/seconded by Charlene.  The vote was 1 - 3.  Jack voted yes due to his site walk resulting in him seeing how it was mistakenly innocent on his part.  The vote did not meet the fourth requirement.

"       Dennis motioned to close the public hearing, seconded by Charlene, all four voted in favor.

Stephen stated the case exists under 6.2.B.2 being a single family/single existence which allows the board to determine the last 3 forms of hardship.   Stephan understands that the applicant

CEO Report: none

Approval of bills:
Portland Press Herald in the amount of $27.84 for legal ads for Parlin application March meeting.
"       Motioned by Charlene, seconded by Stephen to approve the payment of $27.84, the motion passed with a 4 -0

"       Motioned by Stephen to pay $40 for seminar fees that he attended, seconded by Dennis, the motion passed with a 4 - 0 vote.

February 3, 2009
"       Stephen motioned to accept the minutes of February 3, 2009, seconded by Dennis the motion passed with a 4 - 0 vote.

March 3,2009
"       Stephen motioned to accept the minutes of February 3, 2009, seconded by Jack the motion passed with a 2 - 0 vote.

Maine Townsman - February through September 2009 issues.

Other Business:  Stephen updated the Board members with the status of the workshop he attended in Saco.  
"       Dennis motions to close the meeting at 7:45 pm, seconded by Charlene with a 4 - 0 vote.

Respectfully submitted,

                                                        Krystal L. Dyer
Approval Date:          

____________________________________________            __________________
Stephen Heroux, Chairman                                        Signature Date

Town of Buxton
  185 Portland Road, Buxton, ME 04093 (207) 929-5191
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