Town of Buxton
Board of Appeals
Tuesday, March 6, 2012 at 7:00 p.m.
Members present: Jack Hanna, Charlene Libby, Stephen Heroux, Peter Leavitt and Penny Booker.
Others present: Fred Farnham, Jeremiah Ross, Harry & Joan Kavouksorian, Cliff Thomas, Timothy Brown, Donald & Patricia MacInnis, Shirley Keene, Susan Spencer and Peter Mason.
Call to Order
Chair Stephen Heroux welcomed everyone to the Board of Appeals and explained the meeting procedure.
Shirley Keene of 404 Waterman Road is requesting a buildable area variance for a non-conforming lot located on Waterman Road; Tax Map 8, Lot 32.
" Stephen Heroux motioned to open public hearing, seconded by Charlene Libby the motion passed with a 5 - 0 vote.
Peter Mason representing Shirley Keene who is requesting a variance for buildable area for a lot off Waterman road. The lot is approximately 30,000 square foot lot (.68 of an acre) located in the Rural Zone. The applicant did not create the hardship and it is a lot of recorded since 1971. The parcel has been taxed as a buildable lot, being assessed at $51,700. It is our understanding that up until June of 2011 it was considered a grandfathered buildable lot. There is a letter in the code file written by Code Officer Fred Farnham, to an abutter, stating he was under the assumption it was a buildable lot. This escalated to contacting the town's attorney for his interpretation of the amended ordinance. Stephen asked what type of variance they are looking for. The lot cannot meet the 30,000
sq ft .7 x 43560 = 30,492. The applicant submitted a letter from Hampton Associates, who determined the soil is buildable. The new required buildable area in the rural zone is
Penny asked if they are planning to sell the lot - Peter Mason stated yes it is the applicant's intent to sell the parcel and let the new owner develop the lot.
CEO, Fred Farnham - abutter Harry Kavouksorian wrote a letter with his concerns of it being a, non-conforming non-buildable lot and pointed out the change in the definition of buildable area which prior to June 2011 had been the depth of the water 15 inches from the surface was what the parameter that made it buildable.
The following is the 2010 Definition of Building Area: The contiguous area within a lot capable of supporting structures and meeting the requirements of the Maine Subsurface Waste Water Disposal Rules for the placement of a subsurface wastewater disposal area. The requirement for a minimum building area shall apply only to those lots bordering marshes, ponds, streams, and bogs or containing areas where the water table is less than fifteen inches below the ground at least nine months of the year.
At the June 2011 Town meeting, the building area was removed from the ordinance and replaced the definition of with Buildable Area: The area of the site, which may be altered, disturbed or re-graded for development purposes. The buildable area may contain buildings, parking areas, septic systems and storm water management facilities. The buildable area may not contain required open space, Resource Protection Districts or those items subtracted in determining Net Residential Acreage, as defined herein.
Fred also had to consider the following: Net Residential Acreage The area of any parcel generally suitable, in its natural state, for development and theoretically related to the natural capacity of the land to support a certain intensity of use. Net residential acreage shall be determined by subtracting the following from the gross site area:
1) The area located within the full width of the right-of-way (ROW) of any proposed public or private street or access drive. If a ROW is not delineated, an area equal to a minimum 50 foot ROW shall be deducted;
2) Any land area which is regularly covered by water, including ponds, rivers and streams;
3) Any land area identified as having soil that is very poorly drained in accordance with the classifications of the National Cooperative Soil Survey;
4) Any land area with sustained slopes of 20% or more;
5) Any land area with identified wetlands or 100 year floodplains, as defined herein; and
6) Any land located within utility easements or ROW's if the restrictions preclude use of the land for development.
Other inconsistencies, road frontage was not concerned as far as how much road frontage a non-conforming lot had, but also stated the lot width had to meet the frontage requirement. In the rural zone, the required road frontage is 250 feet, but for a non-conforming lot it does not need to meet the 250 feet. This lot has 200 feet. However, the lot width needed to meet the 250 feet. This was not being stated in the definition. Fred asked for the town attorney's interpretation - not all stated clearly with a lot of ambiguity. Fred fells the amendments changed the intent of what a non-conforming lot should be.
Charlene asked if there is a request for a building permit, Fred answered, no there is no request for a building permit at this time. No the Attorney recommended that they see if it is considered a buildable lot.
Abutters comments - Harry Kavouksorian of 23 Waterman Road, (his property abuts the lot in question on three sides) would like to point out that buildable area has been a dimensional requirement in the Ordinance since 1986. Harry clarified that the definition called "Building Area" was replaced in 2011 with a definition of "Buildable Area" to be consistent with the buildable area chart in "Table A", Article 9.6.
Harry continues reading Article 4.2.F.1. Vacant Lots: A non-conforming vacant lot may be built upon provided that such lot is in separate ownership and not contiguous with any other vacant lot in the same ownership and that all provisions of this Ordinance, except lot size and frontage, can be met. Harry summarized by saying that lot size and frontage are excused.
Harry then referenced the Dimensional Requirements, Table A, Article 9.6.A buildable area in the rural zone requires 60,000 sq ft per dwelling unit has not been excused. Street frontage, 250 feet - has been excused. Lot width, 250 ft - has not been excused.
Going back to 4.2.f.1 the last sentence reads, Variance of yard or other requirements not involving area or width shall be obtained only by action of the Board of Appeals.
Looking through the requirement or 4.2.F.1, the first two are excused. However mentions all dimensions are required - lot size, buildable area, frontage, width, and yard are all required. He does not feel there is ambiguity, they are all listed.
Penny - asked Harry to define area - Harry said buildable area is the only thing it can be. Penny clarifies so we are only talking about buildable area, when talking about lot size? Harry said lot size is different from buildable area.
Harry adds that whatever previous ordinances said is irrelevant, because this ordinance repeals all previous ordinances.
Stephen - said his understanding of the attorney's interpretation is that he references older ordinances. The definition of area as it applies when our ordinances took place (1976) making it a grandfathered lot. Harry repeats it's not in our ordinance today.
Charlene asked how the definition of a Non-conforming lot, how did it change to affect that definition, because that definition did not change. Charlene said that subsequent amendments did not change that definition, the lot was created in 1951 and has been considered and taxed as buildable lot. Stephen clarifies that a tax status has no relevance on a property.
Stephen continues saying in the definition of Non-conforming lot it mentions "area" as not being the linear frontage, it just says area. Harry said it does not meet the frontage and is not excused by 4.2.F.1. He also states it is very clear the ordinance excuses lot size and frontage, but not "buildable area".
Public comments -Timothy Brown of 185 Waterman Road asked if a soils scientist had mapped out the buildable area on the lot. Yes , there is a letter from Mark Hampton stating the lot meets the minimum requirements of the state rules and is suitable for a septic system and potential build out of the lot under local zoning regulations.
" Stephen motioned to close this portion of the public hearing, Jack the motion passed with a 5-0 vote.
Board Discussion - the variance at hand is a request of to approve a lot as a buildable lot, thus reducing the present ordinance requires 60,000 for a buildable lot, making his lot is 29,580 feet short of the required buildable area. The applicant would be requesting that amount in a variance for buildable area. Stephen said in reading the Drummond opinion, I was going to seek another opinion from MMA, but read the letter a third time and was comfortable with the decision. I do believe the Board has the ability to address this.
Peter Leavitt asked why is the Board hearing this if a building permit has not been requested, why are we hearing it in the first place?
Charlene questions Section 4.2.G, Vested Rights - We are being asked to make an interpretation that would allow Shirly to sell the land or determine if it is a buildable lot. However, she reads that section, it should only be applied when there is a building permit and is not sure that the Board can make that determination here tonight. The Board discussed if this is in the Boards realm to look at application.
" Stephen motioned to re-open the public hearing, seconded by Charlene the motion passed with a 5 - 0 vote.
Stephen said that without taking a true vote of the Board the only way to get a true variance is if there is a building permit application.
Stephen explains her options and suggests that she withdraw and re-apply with a building permit.
Peter mason said it is not her intent to build on the lot. Stating that if it is a buildable it's obviously worth more.
Stephen explains, that in approving a variance they are specific, without having a specific variance request in front of us, we cannot approve a request.
Shirley Keene states she would like to withdraw her application for a variance.
Approval of Minutes:
August 2, 2011 Krystal realized the list of Board members in attendance was not listed on the minutes. Will amend and resubmit.
CEO Report - none
Approval of bills:
To pay Portland Press Herald in the amount of $26.30 for the August 2011 legal ad
" Stephen motions to pay Portland Press Herald in the amount of $26.30, seconded by Charlene. The motion passed with a 5 -0 vote.
2012/2013 Budget $250 all expenses paid by the applicant
Maine Townsman - October 2011 thru Jan 2012
MMA workshop - Krystal will email the information to the members.
Annual Election of Officers
Chair - Charlene nominate Stephen, seconded by Jack the motion passed with a 4 - 0 vote.
Vice Chairman - Charlene nominates Peter, seconded by penny, the motion passes with a 4 - 0 vote.
Adjourn: Stephen motions to adjourn at 7:41pm, seconded by Penny. The vote was unanimous.
Respectfully submitted by Krystal Dyer
________________________________ Date ___________________
Stephen Heroux, Chairman