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Town Seal
Board of Appeals Minutes 01/05/10
Town of Buxton
Appeals Board Meeting
January 5, 2010

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

Members absent:  Peter Leavitt, Charlene Libby

Others in attendance:  Code Enforcement Officer Fred Farnham, Animal Control Officer Michell Lohutko, Cheryl Smith, Jeremiah Ross III, Keith Emery, Herman & Alice Sanborn, Katherine Nevers, Harold Geisinger,

Chairman Stephen Heroux opened the meeting at 7:01 p.m.
As a Board they have the right to hear an administrative appeal where it is allegded that and administrative or interpretive error has been made by the code enforcement officer has in the enforcement of the ordinance the action of the Code Enforcement Officer may be affirmed, modified or revised by the Board with a majority vote.
"       Stephen motioned to open the public hearing to hear the administrative appeal for Cheryl Smith, seconded by Dennis the motion passed with a 3 - 0 vote.

Cheryl Smith is looking for an appeal to keep the horses on her property.  The reason for the Administrative Appeal to allow her to house two horses on her property, located at 760 Parker Farm Road.  When she first got her horses, Code Officer Fred Farnham said she needed to apply a type of license.  Stephen confirmed it was a conditional use permit.  She was told it would be extremely difficult to get one. Her daughter convinced her to board the horses on another property during the winter months.  The animals were abused at other location and under weight and the hooves had not been trimmed by the farrier and brought them back to her property.  Code officer left a violation letter to remove the horses.  At this time Ms. Smith's attorney informed her that she could appeal the Code Officers decision.  Stephen stated this Administrative Appeal is to decide whether the Code Officer made the correct decision in ordering the horses removal.

Fred Farnham, Code Enforcement Officer explained the background of events, the property located at 768 Parker Farm Road.  It is located in the village district requiring a minimum lot size of 80,000 sq. ft. (1.84 acres).   This lot contains .33 of an acre making it a non-conforming lot in a two-acre zone.  Animal Husbandry is an activity that requires a conditional use permit through the Planning Board.  When the horses where first places on the property without a permit in July of 2008, Ms. Smith was notified of the violation and was given a conditional use permit application.  Fred did admit to her that due to the lot size it would be difficult to get the permit.  About two months later the horses were removed, which removed the violation.  The property that the horses were relocated to had problems with the horses getting out, the animal control officer was called many times and one of the horses is not very friendly. The horses were not being fed properly and the fencing was inadequate.  The horses where returned to 768 Parker Farm Road in November of 2009.  Another violation letter was issued on 11/13/09 giving her 15 days to remove the horses.  The reason for the fifteen days was because there were already two other incidences with the same horses.  In the meantime during this one-year time period the Planning Board made an change to Section 9.8.C (All lots for which a conditional use is applied shall meet the minimum lot requirements of those zones).  This was voted on in June of 2009, making it imposable for a non-conforming lot to attain a conditional use permit.  Stephen asked Fred what the normal length of time given for violations.  Fred answered normally it is 30 days, but in this case the owner was notified previously. Ms. Smith then filed the notice of appeal and suspended the violation giving her extra time to find a place to relocate them.  

Dennis no matter how we vote, does it still need to go to the Planning Board?   Fred explained that in Section 9.8.C it has to meet the.  If it meets the lots size requirment for that zone, it can go to the planning board, but this lot must meet the 2-acre requirement for the Village zone.  This lot is less than a half acre.  So the Board is ruling on whether the Code Officer had the right to give a notice of violation.

Jack checked with the Maine State Society For the Protection of Animals on the square footage requirement for two horses, their response was that a 20 x 30 space is plenty of land as long as they are fed and housed properly.  There are no State or local rules on the amount of land required for a horse.  Fred said there are other considerations like the distance to abutters wells, houses and streams.    

Public comments:  Jeremiah Ross Vice Chair of the Planning Board - said Fred makes the determination on whether he has the authority to approve the application, send to the planning Board or deny it.  Fred has made the decision that this use is in this zone is not permitted as per the ordinance.  The reason why the Planning Board amended the ordinance was due to the number of situations close relation to neighbors and abutters who live next to the animal pastures and housing.  Fred is the first line when it comes to the ordinance and where the applicant needs to go from there.  In this case he made the determination that the applicant needed a conditional use permit, but the ordinance was then amended and the applicant does not meet the ordinance requirements.  Stephen summarized the ordinance change procedures.  

Stephen asked Cheryl Smith to step back to the podium, and said Fred's letter gave notice in 2008 to apply for conditional use and was given the application, but did not apply.  Cheryl agrees she was not aware of the ordinance change in 2009.  She said she moved the horses back due to the neglect and dangerous situation at the other location.  Ms. Smith asked the code officer for an extension to keep the horses through the winter.  

Animal Control Officer, Michelle Lohutko had a police report and wanted to point out that when the horses were moved back to the Parker Farm Road location on November 2nd and they had already been out of there fencing on November 6th, 2009.  They were lose and on another property because the fencing was not adequate at the time.  They do have a long history of getting out, twelve times at the property on Cemetery Road.
"       Motioned by Dennis, seconded by Jack to close the public hearing, the    3 - 0 vote

The Board discussed the application - In argument they did receive the letter that they were in violation and was told they would have a difficult to attain a permit.  In the meantime the ordinance was changed requiring a two acre parcel.
"       Dennis motioned to re-open the public hearing, seconded by Jack the motion passed with a 3 - 0 vote.

Stephen motioned to deny the administrative appeal by Cheryl Smith that Code Enforcement Officer Fred Farnham did not act within his jurisdiction following through with the ordinances at hand.  The vote passed with a 3 - 0 vote that the appeal is denied.  
"       Motioned by Dennis, seconded by Jack to close the public hearing at 7:40 pm, the motion passed with a 3 - 0 vote.

Election of officers:
"       Jack motion to keep the officers as they are, second by Dennis the motion passed with a  3 - 0 vote.
Chairman   -    Stephen
Vice Chairman  - Dennis

Minutes: resubmit
September 3, 2009
December 1, 2009

2010/2011 Budget Request    Miscellanious to be 200
   Supplies                      50
  Totoal                   $250        
"       Dennis motioned to approve the 2010/2011 budget for $250, seconded by Jack the motion passed with a 3 - 0 vote.

Communications - Maine Townsman, December issue

Stephen discussed the previous meeting decision and the possibily recomending an ordinance change to the Planning Board.  Stephen will contact the attorney he spoke with and get the correct verbiage for the change.

Meeting Adjourned at 7:50pm motioned by Stephen, seconded by Dennis the vote was unanimous.

Krystal L. Dyer
Approval Date:          

____________________________________________            __________________
Stephen Heroux, Chairman                                        Signature Date

Town of Buxton
  185 Portland Road, Buxton, ME 04093 (207) 929-5191
Town Office Hours: Mon, Tues, Thur, Fri 8:30am to 4:30pm & Wed: 11:30am - 7:30pm
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