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Town Seal
Board of Appeals Minutes 05/01/12
Town of Buxton
Board of Appeals
Minutes for
Tuesday, May 1, 2012 at 7:00 p.m.
Members in attendance: Stephen Heroux, Charlene Libby, Peter Leavitt, Jack Hanna and Penny Booker.

Members not in attendance:  none

Others in attendance: Code Officer, Fred Farnham, Peter Mason, Shirley Keene, Cliff Emery, Jean Harmon, Harry & Joan Kavouksorian, Jeremiah Ross, III, Larry Curtis, Jack Chase, Donald & Patricia McInnis, Doug Sanborn, Josh Veto, and Scott Lyons.

Chairman Stephen Heroux explains the appeal process and functions of the board.  Tonight's administrative appeal is based on a building permit issued by the Code Enforcement Officer.  
"       Motioned by Stephen to open the public hearing for an administrative appeal from Harry Kavouksorian, seconded by Charlene.  The motion opened with a 5 - 0 vote.

Harry Kavouksorian of 23 Waterman Road has filed an Administrative Appeal for a building permit issued for a lot not meeting the lot width requirement set forth in "Table 9.6 Dimensional Requirements" for non-conforming lots.  The parcel is located in the rural zone off Waterman Road; Tax Map 8, Lot 32.
Harry first asked the board if any members own a non-conforming lot, which could cause a conflict.  Penny said she had a non-conforming lot located in the shoreland zone and is aware that she could never build on it and it does not affect how she would vote.  
Harry requested the Board to ask the Code Officer to revoke the building permit issued for lot 32 on map 8, because the lot does not meet the 250 foot width requirement set forth in Article 9.6, Table A.  Harry feels the lot does not meet that requirement, so a building permit should not be permitted.

Having no abutter comments, Stephen asked if anyone from the public has comments:
Cliff Emery, Selectman states he was not here for the first meeting and is somewhat ignorant of the proceedings, and requested to hear an explanation from Code Officer, Fred Farnham, detailing why the hardships do not apply in the case and how it meets the standards and why.  Stephen explained there was a variance appeal last month due to a permit being denied and this is an administrative appeal because a permit has been processed that has a question regarding the condition of the non-conforming lot.  
"       Stephen motioned to close this portion of the public hearing, seconded by Charlene second, with a 5 - 0 vote.

Board discussion:
     Stephen states it is his belief that it being a non-conforming lot and not having to meet a frontage requirement also means it does not need to meet a width requirement either; the town's attorney has addressed this in his letter and concurs
     Peter asked Fred at a previous meeting, what bases the permit was denied on.  Fred had said buildable area.  Buildable area is what Peter thought was the issue, not width.  
     Charlene said it is her understanding from reading ordinance that a nonconforming lot, Fred would have had the ability to issue a permit if it met the width, area, and frontage requirement.  This lot did not meet all those requirements and that is why the request came to the Appeals Board.  Where they reviewed information the four questions of hardship.  The board agreed they did meet the four requirements and they allowed the building permit to be issued.  Therefore, we're here tonight for a second review referring to section of the code.  At all the training workshops I have attended, it is my understanding, if there is ambiguity in the code; the benefit goes toward the property owner.  Does not see that the Board has made a bad decision or violated the code in any way.
    Penny, the issue has changed a bit; interpretation from the beginning is the definition of a non-conforming lot (Penny reads the definition from the ordinance).  Penny added if you take the definition, which discusses width and look at 4.2.f .1 showing why the applicant would come to the appeals board. Her interpretation is that they do not need to come for these issues, because it is in the definition.  Penny feels Fred was on the right track at the beginning.  She states there is another article that talks about Non-conformance, (Penny reads a portion of Section 4.2.A). Penny feels it should be able to be developed.  
    Stephen explains that is why we are here tonight, because its describes explicitly in one section and generally in another section of the ordinance. However, as Charlene has stated, if it comes to a gray area, than it goes to the landowner.
   Peter said we ruled on buildable area at the last meeting.  Width did not come up, now it has come up by the abutter, would like to hear from Fred as to why width does not matter.  

"       Stephen motioned to re-open the public hearing, seconded by Charlene. The motion passes with a 5 - 0 vote.

Peter asked Fred, why did the Code Officer deny the original building permit? Was it based on buildable area?  Do you feel that the width does on need to be addressed and if so why?  Fred began by reading the two definitions, Lot Width and Street Frontage.   All lots created after the date November 1976 are considered
The configuration of most lots are right angles to the road and in most cases, the road frontage would be same as the lot width.  Interpreting that, Fred referenced Section 4.2.f.1. (Fred reads this section).   Part of the problem is that some of the definitions and terms are not conforming with the "Table A" chart in section 9.6.   Peter said we addressed buildable area, but we did not address width and feels we probably should have.  Fred read a portion of the letter from the attorney dated December 20, 2011, that talks about.  

Harry Kavouksorian said the attorney stated in the letter that the matter is not free from doubt.   He also says that the applicant should be aware they could be required to ask for a variance for lot width.  That aside, there is a separate definition and requirement for lot width that has to be met.  "All other provisions other than lot size and frontage can be met" Harry feels there is an equally strong argument that lot width is not grandfathered.  Section 4.1.5 referenced by Fred was deleted from the ordinance, Harry feels this is a clear intention from the voters that there was to be a separate definition for frontage and width.  Harry disagrees with Fred's statement about the configuration of lot width and road frontage being the same.  Regardless, there is a requirement of 250 feet at the setback, to be met.

"       Stephen motioned to close the public hearing. Seconded by Charlene the vote passed with a 5-0 vote.

Board Comments:
Penny asked to make one further comment by ref 4.2.f "variance of yard or other requirements not involving area or width shall be obtained only by action of the Board of Appeals."  In her opinion, width is left out because its already in the variance through the definition.  Stephen said he cannot see how any nonconforming lot would meet a width requirement if cannot meet a frontage requirement.   

The Vote:
Stephen explained we have an administrative appeal by an abutter, for a permit issued that did not take into account the requirement of width.  If we vote in the affirmative, we would grant the administrative appeal.  If we vote in the negative, the requirement of width has been addressed in the variance.

The vote of 2 in favor and 3 opposed (Stephen, Charlene, and Penny), the appeal fails and the decision remains.

Approval of Minutes:    
April 3, 2012 - Stephen motioned to accept the minutes with amendment made tonight. Seconded by Penny, the motion passes with a 5 - 0 vote.

CEO Report: none

Approval of Bills:  Pay to Portland Press Herald 26.10 and 22.50 for legal ads.
"       Motioned to approve by Charlene, seconded by Stephen to Pay Portland Press Herald $26.10 and $22.50.  The vote was unanimous.  

Maine townsman April issue
Copy of Letter from Harry Kavouksorian to the Superior Court

Other Business:
"       Adjourn:
Motioned by Charlene to close at 7:37 with a unanimous vote.

Respectfully submitted by 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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