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Town Seal
Board of Appeals Minutes 11/03/09
   Town of Buxton  
Board of Appeals Minutes
Tuesday, November 3, 2009

Members in attendance:  Stephen Heroux, Peter Leavitt, Charlene Libby and Jack Hanna.

Members absent:  Dennis Sweatt

Others in attendance:  Richard Cote & Stuart Johnson, Maggie Jones, Eva & George Krysiak, Keith Emery and Fred Farnham, Code Enforcement Officer.

Chairman Stephen Heroux welcomed the applicants to the meeting at 7:00 pm by announcing that they do have a quorum with four members and announced the procedure for the meeting.  

Richard Cote & Stuart Johnson are requesting a variance for a minimum lot size and front yard setback of 4 feet for 265 Cemetery Road; Tax Map 2, Lots46-1.
"       Charlene motioned to open the public hearing for Richard Cote and Stuart Johnson, seconded by  Jack , the motion passed with a 4 - 0 vote.

Richard Cote said they are looking to purchase the property (under contract) at 265 Cemetery Road to fix up and resell, but during a bank inspection it was noticed that the dwelling was built to close to Cemetery Road.  In 1977 the town granted a building permit for a 24 x 36 cape to be built on lot 46.  At this time lot 46 was one parcel of land owned by Lewis and Grace Crocket, who in 1980 deeded a section off with this house.  The Buxton Road Book was researched and printed in 1990, which gives the true width of Cemetery Road.  At this time the lot size requirement was two acre and now it is three. Mr. Cote would like to get a clean title.   Stephen stated the requirements for the Residential Zone are 40-feet front and 30-feet side and rear.   Mr. Cote said they are requesting a front setback variance.  
        Stephen said they will concentrate on the front setback issue and then re-open the public hearing and discuss the lot size issue.  
Code Enforcement Officer Fred Farnham said this first came about in a bank inspection, noted in a letter to Livingston-Hughes Surveyors dated October 10, 2005.  This company did the surveying work, but was never compensated for the job and would not release the plans.  Fred has since gone out and measured and submitted a hand drawn sketch showing the distances from the dwelling to Cemetery Road.  He also stated that Cemetery road is a 66' wide road or four rods.  The sketch indicated the right side of the house is 32.9 feet from the road right-of-way and the left side is 36.4 feet from the ROW.  Meaning a 7' 1" variance would be needed.  Fred explained the survey was noted in the letter stating there was a front setback violation.  Fred also measured from both corners of the house (being 65.9) to the center line of the road, with the difference of 7.1 feet from the right corner and 3.6 feet from the left corner.  Fred also measured from the center line to the attached garage, which has the required setback.  The Road book was not compiled until 1990, so at that point there was no evidence of the width of the road.  Charlene asked if there are other houses on the road that would be impacted by this also - Fred said yes most likely.  Jack asked if the setback prior to our ordinances were still 40 feet.    Peter said they would have met the setback if there was a 50-foot road. Previously there was no road information and there were no records as to the row of the road.  Mr. Cote said the purchase is a foreclosure and they are running into other issues also.

Public comment:  Eva Krysiak asked what the building was being purchase for, single family or multifamily? Mr. Cote stated they plan on making it a nice single family home.   Stephen summarized the time line with Fred.    
"       Charlene motioned to close this portion of the public hearing, seconded by Jack, the motion passed with a 4 - 0 vote.
Stephen said that if this is approved it will be contingent upon if the sale goes through to the two applicants only and for a single family structure only.  Fred said that the 7.1 feet is less than the 20% under section 6.2.B.2.  

1.The land in question cannot yield a reasonable return under the requirements of this   
   ordinance - Stephen said until the books are straightened out, no purchase will  
   be able to take place. The motion to meet the first case passed with a 4-0 vote.

2.The need for a variance is due to the unique circumstances of the property and not the
    general condition in the neighborhood; - Stephen said based on the timeline of  
    when dwelling was constructed and the records available at the time.   The  
               motion to meet the second case passed with a 4-0 vote.

3.The granting of a variance will not alter the essential character of the locality; It will
    remain residential -    The motion to meet the third case passed 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. - Peter said that it was prior owner but it is the width of the road is the
    problem. The motion to meet the fourth case passed with a 4-0 vote

"       Stephen motioned to grant 8.0 ft front yard variance to the property on 265 Cemetery Road.  The condition is that it will not take place until the purchase is complete by Richard Cote and Stuart Johnson, seconded by Charlene   4-0.  

"       Peter motioned to re-open public hearing, seconded by Jack   the motion passed with a 4 -0 vote.

Mr. Cote asked for Fred's assistance since he was not sure of what the Board is looking for.  Fred said the survey in the file follows the deed split that was given to the previous owner after the house was built. The mortgage Survey recognized the front set back violation, but had no mention of the lot size.  Fred found it by checking the records in the residential district, a 3-acre minimum or 120,000 square feet is required now.  In 1976 when the Town adopted zoning, this area became Residential Zone, requiring three acres per lot.  Fred compared the plot plan and the survey, to figure out the square footage and discovered it was 25,000 sq. ft. short, (approx ? an acre).  That's where the history of the lot comes in. Stephen stated that as the property exists now it is an illegal non-conforming lot, which was split after the ordinance went into effect.  It was a family parcel that was split out over time to the children, without being surveyed.  Stephen continued - the 1981 the tax map shows lot 46 as one lot.  After the deed the lot change was placed on the map, the incorrect lot size was not noticed at that time.  Stephen asked if this was more of an Administrative appeal by process?  Fred would just like to get it recognized as non-conforming.
Mr. Cote asked if the easement could be used to solve this issue, Fred said no, the easement is owned by someone else.  Fred brought more detailed maps with the zones depicted on them, to show the distance of the Village vs. Residential Zones to the property.

Keith Emery asked where in the rules does it say that you can cut out a lot, split from family land after the zoning and be a legal lot?   Remember you have other people in similar situations.  Two lots created after zoning started need to be treated the same.   Stephen said the question at hand is not to make this a legal lot, but to make it a legal non-conforming lot.
"       Motioned by Charlene, Seconded by Jack to Close the public hearing.  The motion passed with a 4-0 vote.

It's a unique situation.  What happens if we do nothing? It just sits in town and no one can do anything with it, because the banks will not finance it.  Stephen is not sure if this is the Boards jurisdiction, he would like to table this to gather more information.  Jack said the letter from Fred explains the situation and the deeds are old.   Stephen said with the facts presented he is not sure what can happen and is not comfortable with the decision to leave it as is.  
"       Charlene motioned to open the public hearing, seconded by Jack.  The motion passes with a 4-0 vote.

This is the first that has come before the board in five years.  It's in the town's best interest to get a resolution. It's a valid concern but would like to gather more information so they can give it a stamp of credibility.    It may be more of an administrative issue.  
"       Jack motioned to close the public hearing; Charlene seconded the motion with a   unanimous vote.
Vote to table the application to gather more information and place on the agenda for next month.  
Discussion:  Stephan said it is in the Town's best interest to deal with this now.   They plan to come back for the December meeting and hopefully have a decision.  Jack - agrees with getting an outside jurisdiction.  Peter - not sure what he would be Okaying?  Charlene deal with it and solve this and gather more information since there are other similar cases that have previously been before the Board.  
"       Seconded by Jack the motion passed with a 4 - 0 vote.  

At the December 1st meeting we will have a decision of the Board and hopefully establish some kind of avenue to dealing with this through the Town's attorney.  

CEO Report: none

September 1, 2009 - Will review the last paragraph and revisit at the December meeting.

Approval of bills:
Portland Press Herald in the amount of $24.36 for legal ads for Emery application in the September meeting.
"       Motioned by Charlene, seconded by Stephen to approve the payment of $24.36, the motion passed with a 4 -0

Maine Townsman - October 2009 issue.
Land use books
Letter from FEMA

Other Business:  discussion for next steps for the review.  Stephen will contact the attorney and hopefully they have dealt with a similar case in other towns and pass the information on to the Board before the next meeting.  

"       Stephen motioned to close the meeting at 8:04 pm, seconded by jack 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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