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Town Seal
Board of Appeals Minutes 04/03/12
Town of Buxton  
Zoning Board of Appeals

Tuesday, April 3, 2012 at 7 p.m.


Recorded by Hilda Lynch

Board Members Present:  Stephen Heroux, Charlene Libby, Peter Leavitt, Jack Hanna and Penny Booker

Others in Attendance:  Code Officer Fred Farnham, Shirley Keene, Peter Mason, Larry Curtis, Don & Pat MacInnis, Judith Sanborn, Doug Sanborn, Joan & Harry Kavouksorian, Cliff Thomas

Chairman Stephen Heroux called the April 3, 2012, meeting of the Buxton Zoning Board of Appeals together at 7 p.m.

Public Hearing:  Shirley Keene of 404 Waterman Road is requesting a buildable area variance for a non-conforming lot located in the rural zone on Waterman Road; Tax Map 8, Lot 32.
    Stephen explained the procedure for the public hearing.  This is a meeting for four areas of hardship to be considered.
"       Stephen motioned, seconded by Charlene, to open the public hearing.  All voted in favor.

Peter Mason represented Shirley Keene.  He stated that the lot size is 30,492 sq. ft.  In 2011, a lot size of 60,000 sq. ft. was required  He and the applicant were here a month ago but did not have a building permit.  They've since submitted an application for a building permit, but it was denied.  In the packet submitted, there is a picture of the house they'd like to build.  They're able to meet all of the setbacks in the rural zone.  They've included a lot plan.  The house would be on a full foundation.  The driveway would be on the left side to make it best for the abutters.  They thought it would be irresponsible if they didn't leave it possible for a future owner to put on a garage or addition.  The State allows a buildable lot size of 20,000 sq. ft..

Stephen says that on the last lot plan, the driveway is shown going over the septic.  Peter has an updated version with him tonight.  Stephen asked if the driveway was going further to the left.  Fred provided Stephen with an updated lot plan.  The septic bed is 100 ft. from the left, so there would be about 55 ft. from the other side.  They've put the bed in the front so they could allow as many trees as possible in the rear.  The well is in the back left corner.  They would probably have to do some cutting of trees to get the well drilling rig in there.  

Stephen asked if there were any other questions.  Stephen asked Fred whether the building application as it exists now includes the septic plan as part of this application.  Fred went out to see where the location would be and checked property lines, checked the original sketch, and the septic would have been under the driveway, so they've changed it to reflect a new location.

Peter L. asked if it was refused only because of buildable area.  Fred said it was so.  Peter asked if the width was no longer an issue, and Fred said it wasn't.  

Stephen asked for a show of hand for abutters.  He asked Harry Kavouksorian to step up to the podium.  Harry said that they disagreed on a lot of things when they were together last.  He believes the language was put into the ordinance in 1976 when zoning came into effect to protect property owners.  In 1975 and '76, there was a one acre minimum.  The previous owner was refused a building permit a number of times because he didn't have an acre of land.  It was not a buildable lot.  There was no Board of Appeals at that time.  There was a minimum of one acre in that zone.  

Stephen asked what the zone requirement was prior to that time.  Harry didn't know.  Stephen asked about grandfathering.  Harry says it was grandfathered in '76 when zoning came into being.  Harry says that he and his wife wanted to put a house on an existing foundation and were told that they couldn't by the Code Enforcement Officer.  Charlene asked if they had a house there.  Harry said they had to move their house back about 50 ft. and put in a new foundation prior to building it at considerably more expense.  9.3 of the ordinance describes the rural district and talks about maintaining very low population density.  He doesn't understand why it is a good idea to put a home on 15 percent of what would be a 5-acre zone requirement.  Harry asked what the basis of the application is?  A financial hardship doesn't make grounds for a variance.  One of the requirements is that this can't alter the neighborhood, and he refers to a field across from the lot in question on which a house cannot be built for 50 years.  He has a hard time understanding how this can be considered.

Originally, the farm that's there owned all of the land as one property.  The farmhouse was deeded to the MacInnes'.  The piece of land with the 50-year covenants is clearly part of the same neighborhood.  

Peter L says there is no house on the land in question.  The applicant has applied for a building permit which has been refused.  As far as he's concerned, the Board hasn't made any decision yet.

Stephen says he thought he made it clear towards the end of the last meeting when he offered some information to the applicant that this wasn't the only way they could proceed and that there were no guarantees how the Board would consider this.  
The 60,000 sq. ft. requirement has been in the ordinance well before 2011.  The hardship would not be accurate.  

Joan Plummer Kavouksorian lives on the property abutting the property in question.  There has never been a dwelling on this property because the land is too small.  They've been approached by another to sell a piece of property to add to this parcel, which they've refused to do.  She requested that the Board come and do a site walk since their decision would impact them so strongly.  

Stephen said they're required to offer the abutter the chance to offer any and all information they felt necessary.  Joan has made this request, and the Board has heard their request.

Joan doesn't understand how this piece of property would be grandfathered because they were told that there is no such thing when they wanted to build their house.  Stephen says this question needs to be asked of someone else because it has no bearing on this matter.  Peter L. says the term "grandfathered" means nothing to him.  Charlene says the term "nonconforming " is the section they'll look at.  Joan says they've been told long before 1951 there was a blacksmith shop there - likely in the 1800s.  She asked if they were denying the request for a site walk.  Stephen says he's not denying it but has heard the request.

Larry Curtis, a citizen, lives at 56 Green Ridge Drive in Buxton.  He has served on the Planning Board since Jan., 2012.  He's been reviewing this case.  Article 9, Section 6 - Lot size in the rural area is required to be 200,000 sq. ft.  The applicant's lot is about 30,000 sq. ft., about 15% of the lot size for that area.  The applicant must show undue hardship in four areas.  He has not heard any info about this tonight.  He's concerned as a citizen of the Town that the granting of a variance for this lot would impact the Town.  Where do they draw the line?  The rules are in the ordinance book, and the rules should be followed, he says.  The lot is not even close to the lot size for that area.  He would hate to see any encroachment on the Waterman Rd.  This would open the door for other places in Town.  

Harry stated that he's seen a letter from the Town's attorney that went through a lot of definitions.  He believes that lot width is a requirement.  Language has been repealed in the ordinance that Mr. Plouffe refers to.  4.1.5 has been deleted, which is what the town attorney refers to in his letter.  

Donald MacInnis is responding to Mr. Curtis' lot size of 200,000 sq. ft.  His house in Watertown, MA, is on a 40,000 sq. ft. lot.  It's nice to have 5-acre lots, but he thinks that some of the property's not being allowed to be developed because of it.

Shirley Keene owns the lot and is an abutter to the lot.  Many homes are on lots less than 30,000 sq. ft., but they have been issued building permits.  There are several on Waterman Rd.  The average lot built on in Maine is 20,000 sq.ft., 10,000 sq. ft. smaller than her lot.  It has a nice rectangular shape, good road frontage, high and dry, and the preliminary site work has the lot passing w/flying colors.  The revenue paid annually to the Town assesses the lot as a separate parcel; she has no idea why.  There are separate taxes paid on it.  She found that there were 125 similar nonconforming, grandfathered lots in Buxton similar to her lot.  Residents have invested in these lots for many reasons.  A lot of residents, young or old, do not want to care for a five-acre lot.  She's now mowing a very large lot.  Smaller lots are becoming popular in this economic downturn.  Construction in Buxton is down--only seven permits were issued last year.  Building one new home helps all local businesses, and helps with Town revenue to keep property taxes a little lower.  She wonders if a new neighbor might enrich the lives of the abutters.  The house lot was appraised in 2009.  It was determined by an appraisal company that it was a nonconforming, grandfathered lot at $42,000.  It was valued at $46,000 by another appraiser hired by the Kavouksorian's.  Fred had things researched by the Town attorney which we all paid for.  It was considered a grandfathered, nonconforming lot with Appeals Board approval which she's asking for this evening.  

Charlene asked Fred about prior building permits being refused that Harry referred to when speaking.  Has he seen a permit for this lot in the past?  Does he have any record of this being done in the past?  Fred hasn't found any files on this.  The Appeals Board did exist in 1978, Charlene stated.

Charlene asked Harry to be more specific about a prior owner asking for a building permit.  Harry says he didn't think the Town kept any records of refused permits.  Harry says his wife's family owned this land before the person who wanted to buy land from them.  Harry clarified his last name for Shirley.  

Stephen asked if the Board had any further questions.

"       Stephen motioned, seconded by Charlene, to close this portion of the public hearing.  All voted in favor.

The variance request before the Board is for 29,508 ft.  - about 50%.  Stephen says the applicant believes they cannot yield a reasonable return if this variance is not granted - a nonconforming grandfathered lot was buildable prior to June, 2011.

Unique - No, the applicant says.  This lot has existed in the current configuration since 1951.

Would building on this lot alter locale? - No, says the applicant.

Future development would be in accordance with what is permitted in the rural zone - the hardship is not a result of action taken by owner or prior owner - No, the applicant says that the new ordinance in June, 2011, raised the questions.

Stephen says he plans to go through voting on each question.  The Board is discussing this now.  He agrees with the assessments of Attorney Plouffe.  The buildable area is something the Board may address.  Peter L. agrees.  Charlene would like to make a recommendation that they follow up on a site walk, so would like to defer the voting.  It is emotional, she believes.  Peter says that this application was scheduled and that they owe it to the applicant to rule on it tonight.  Stephen says that this is a quasi-judicial panel; he deals with any information that is presented.  Charlene says they don't normally do site walks.  Stephen surveyed the Board.  Peter says they had an aerial view of the property.  He thinks Hardship No. 3 can be answered by the aerial view.  Charlene asked for clarification of the picture of the aerial view.  

"       Stephen made a motion, seconded by Peter, to open the public hearing.  All voted in favor.

Stephen asked Peter Mason to come over and show the location of the proposed buildable area on the aerial photo.  Board members reviewed the photo.  Harry asked to take a look at the photo, which was granted.  He thought it was a rough approximation.

"       Stephen motioned to close the public hearing, seconded by Charlene.  All voted in favor.

Stephen said he'd be willing to vote on Charlene's request for a site walk and postpone the application.  The Board has the ability to schedule sooner than next month.  There are public notification requirements so might need to be two weeks away.  Two in favor, three opposed (Stephen, Peter and Jack) to hold a site walk.

Stephen went through the four hardships:

1st hardship:  The land in question cannot yield a reasonable return unless the variance is given.  He reviewed the applicant's answer.  Jack asked who said it was buildable prior to 2011.  He heard that someone had applied for building permits which were denied.  3 in agreement; 2 opposed (Peter and Jack)  Motion carries.

2nd hardship: The need for the variance is not due to unique characteristics.  Board is unanimous in the applicant meeting this hardship.

3rd hardship: The granting of the variance will not alter the locale.  Applicant says no.  Jack says this has always been considered farm land down there.  He thinks that putting a little house in the middle of it would not be in accordance with the neighborhood.  Charlene refers to 26.B which doesn't appear to be all that much larger.  She doesn't think there will be that much change.  Penny says that they're talking about only this one lot in question.  3 believe applicant has met third hardship:  3 in agreement; 2 opposed (Peter and Jack)

4th hardship - Peter says if it wasn't for the application, there'd be no hardship.  The applicant didn't create the lot of this size, Charlene says.  Jack says they've turned down people since he's been on the Board who only had an acre and a half in a five-acre zone.  He says there are a lot of cases like that.  Penny says that if you look at it that way, it seems like they have 125 nonconforming lots and none of them would ever be usable.  Peter L. says he disagrees.  Penny says they would be taking the use of a lot of land away from people.  Stephen says they do use prior cases as reference points.  He thinks it is important to be fair and consistent.  Stephen says he'd like some documentation on the precedent mentioned by Jack.  Peter says you have to look at it case by case, and Stephen agrees.  Penny mentioned setting a precedent.  Stephen says they're here to determine whether the best interests of the Town will be served, Peter added, and the applicant.  If the applicant split the parcel off to make a nonconforming parcel, they would have created it.  Three in agreement, two opposed (Peter and Jack).

"       By meeting all four cases of hardship, the Board has granted a variance of a building area of 29,508 sq. ft.
Harry says that he's letting the Board know that this action will be appealed in Superior Court.         

Approval of Minutes:  August 2, 2011
"       Motioned by Stephen, seconded by Charlene to accept minutes as read.  All voted in favor.
                        March 6, 2012
"       Stephen motioned, seconded by Charlene to accept the minutes as written.  All voted in favor.  Stephen motioned, seconded by Charlene, to amend the minutes to be accepted as corrected.  All voted in favor.
CEO Report: Stephen asked Fred to tell people how he plans to address this type of property.  Fred says that when nonconforming lots issues first came to light, there were three variables:
        Lot size
        Lot frontage
        Lot width - basically going back from front yard setback (50 ft. in rural zone) - needs to be the same length as the frontage as one goes back.

These are nonconforming lots.  Lot frontage was excused, but lot width wasn't excused.  If you only have 100 ft. of frontage, the lot width in a residential zone would have to be 200 ft.  Property lines would have to go back at weird angles.  What he plans to do is get all three criteria into that definition so they will not have to meet the above three criteria.

The other problem is building area vs. buildable area.  Building area was land that was able to be built upon.  The building area was determined by the water table.  The definition got changed last year to buildable area, which is that part of a lot that is not wetland - six different categories apply.  One needs to have someone go out and determine slopes being less than 20% grade, ledge, wetlands, etc.  The buildable area has to be a certain ratio of the lot size.  In the rural district, the lot size is 5 acres, so one would need 1.5 acres of buildable area.  Even though the lot under discussion tonight was small, it had 100% buildable area.  Nonconforming lots - will they be required to have the same amount of area as conforming lots?  To provide a reasonable answer, he'd use the same ratio to the lot size in that zone.  In a 2-acre zone, you'd have an 80,000 sq. ft. lot, so you'd have to have 40,000 sq. ft. buildable area.  If you apply the same ratio to a nonconforming lot, 1 acre would have to have 20,000 sq. ft. of buildable area minimum.  He believes that 20,000 sq. ft. is a good minimum and is the State's minimum lot size.  He plans to have articles this June on the warrant regarding this.  Penny asked if there will be a public hearing, and Fred says that there will be.  Stephen asked if it's going to be through the Planning Board, and Fred says it will.  Fred says it should be very clear when one goes back to the definitions.  He also believes it will be consistent and alleviate a lot of need for variances.  Fred took all of the lots that are .5 acre and determined that they wouldn't be buildable.  Stephen clarified the 125 as vacant lots.      

Approval of bills:
        "The Maine Townsman"

Other Business

"       Motioned by Stephen, seconded by Charlene, to adjourn the meeting at 8:16 p.m.  All voted in favor.

________________________________                Date ___________________
Stephen Heroux, Chairman

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