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Town Seal
Board of Appeals Minutes 08/07/12
Town of Buxton  
Board of Appeals
The Town of Buxton Board of Appeals will hold a Public Hearing at the Buxton Municipal Building on the Portland Road, Buxton, Maine on:
Tuesday, August 7, 2012 at 7:00 p.m.

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

Members not in attendance: Charlene Libby and Peter Leavitt.

Others in attendance: Robert E. Wickson, Jr., Robert A. McDougal, Dean McDougal
Kenneth Elliott, Chris Smith, Kristen Smith , Michael Sanford, Ray Smith, Anthony Adams, Mike Lane, Carrie Logan, Mary Wescott, Donna Greenlaw, Brad Perkins, Cliff Thomas and Jaye Smith.

Stephen explains the procedure for the meeting.
"       Motioned by Stephen, seconded by Jack to open the public hearing.  A unanimous vote.
Barbara Dresser, Trustee of property at 7 & 9 Cady Lane has filed an Administrative Appeal for not allowing two non-conforming contiguous lots in the same ownership to be conveyed separately.  Referencing the requirements set forth in 4.2.F.3 for non-conforming lots.  The two parcels are located in the Residential and Shoreland Zones; Tax Map 1A, Lots 111 & 112.
Michael Lane, Representative Barbara Dresser as her attorney.   As you know Barbara owns lots 7 and 9 Cady lane as trustee and wants to sell lot 112 to a separate party and sell lot 111 to a separate party.  There are two structures on the two lots, the town treats them as two lots, two tax maps, two tax bills, two mailboxes, two septic systems and the list goes on.  Barbara had asked the Code Enforcement Officer and asked to sell as separate parcels.  A letter from Mr. Farnham said we could not do that, so we are here for an administrative appeal.  We are asking you to overturn that decision and grant our appeal, allowing us to sell the two cottages as separate stand-alone lots.  Our basis for that argument is in Section 4.2.F.3, which says when there are continuous built lots, if there are two or more principle uses on them, they do not need to be merged.  Therefore, if you have under sized lots owned by the same people in the shoreland zone, they would merge, except in cased where you have two different uses.  In this case, we have a principle year round residence and a rental unit.  They have been this way since the 1940's and 50's.  The buyers are here at the meeting.  We would like you to grant the appeal and decide that 4.2.F.3 applies and we can be separated and sell as two separate lots.  

Stephen asked if you could show on the lot survey, how the lots existed when they were created prior to the ordinance implementation.  Mr. Lane approached the Boards table pointed out the lot lines.    Stephen said 4.2.F.3. talks about two standards, one - there are stand-alone uses for the properties, two - they meet a minimum lot size and State wastewater disposal rules.  Mr. Lane said those two conditions only apply if they do not have two principle uses.  Only applicable when you do not have the two separate principle uses.  In order to split them you would need the minimum lot size of 20,000 sq ft.  
        Fred has generated a letter after additional information indicating the lots could be sold separately; however, there is a problem with the septic systems being on the property line.  He agrees the lots were formed before the ordinance was established and meet the standard of 4.2.F.3, therefore they can be sold separately.  However, there are issues with the septic being on two different lots.  There is a concern over the wastewater disposal.  Mr. Lane stated one of the septic fields falls on both lots in the conveyance of these properties they will be benefitted by an easement for the septic; this will be in the deeds.  Stephen asked if there is any engineering documentation for handling both houses.  There are two current systems.  Stephen confirms that the leachfield for the smaller lot is on a portion of the larger lot.  Yes, they will be granting an easement for the use of the leachfield.

Dennis for clarification, from the respective of taxes, you indicated they have been two housed, paying two separate tax bills.  Stephen said the town's tax status for this property couldn't be used as a factor in this appeal.  Mr. Lane said yes, they are treated as two separate uses.

Jack asked if both parties agree on the easement.   Yes, the both did agree.

Stephen asked Fred - Confirmation from the letter dated August 5, 2012, said that after additional research the lots are separate, created before the creation of the ordinance.  Even though they were both in single ownership, because they were two separate lots with houses, therefore they can be sold as separate lots.    However, you have concerns over the wastewater and dimensional lot issue.  Stephen reads a section 4.2.F.3  "if all or part of the lots do not meet the dimensional requirements of this Ordinance, and if a principal use exists on each lot, the non-conforming lots may be conveyed separately or together providing the State Minimum Lot Size Law and Subsurface Waste Water Disposal Rules are complied with.  If two or more principal uses existed on a single lot of record on the effective date of this Ordinance, each may be sold on a separate lot."   Stephen asked if he agrees there are two different principle uses.  Yes, Fred does agree.  When a property is transferred easements, does it go through the building department? Fred said not that he knows of.

Jack asked if there are other cases where other people have an easement for a leachfield.  Yes there are.

Comments from the abutters:
Abutter Donna Greenlaw said she has an easement for her leachfield into the ROW of old pond road.  Thought they wanted to combine the lots together.  She said she does not have a problem with the proposal.  Mary Wescott representing the abutter of lot 110 said she miss understood what this about.  Thought they wanted to turn the smaller house into a business adventure.   They are fine with the lots being sold separately.

Code Officer Fred Farnham:  Wants to give a little background information.  The first request of what you can and cannot do with non-conforming lots.  He checked with DEP due to the lots being in the Shoreland zone.  Fred read an article on non-conforming lots. "..if non-conforming lots are already developed with each having a principle use or structure, the lots can be transferred together or separately, if the lots are owned by the same land owners at the date of adoption.  If conveyed separately each lot must be in conformance with both the state minimums lot size law and the State sub surface wastewater disposal rules.  This also applies to one conforming lot that has two principle uses and if the uses are separated in two lots, each lot is made as conforming as possible.  There should be some thought given to the fact that one lot is smaller than the other.  The smaller lots septic is located on the larger lot.  Fred agrees with the suggested lot line amendment. On lot 112, the Septic was replaced in 1975 and there are indications that it has failed and will require a septic design for a 4-bedroom dwelling.   
Part of the difficulty was the maps given had no frontage or minimum lot size so I tried to scale off and determine the size and frontage of each lot.  State law to permission from the Department of Human services for lot size amendment or easement.  According to Fred's calculation, both lots are less than 20,000 sq ft.  There needs to be more attention to detail.

Stephen said his interpretation is different from Mr. Lanes.  He read a portion of  4.2.F.3  - if all or part of the lots do not meet the dimensional requirements of this Ordinance, and if a principal use exists on each lot, the non-conforming lots may be conveyed separately or together providing the State Minimum Lot Size Law and Subsurface Waste Water Disposal Rules are complied with.  If two or more principal uses existed on a single lot of record on the effective date of this Ordinance, each may be sold on a separate lot.

Stephen asked Mr. Lane to return to the podium for further questioning.  Mr. Lane said our argument deals with the last sentence of 4.2.F.3, that when the ordinance was adopted in 1973 (adopted November 1976). Those two lots were owned by the same person and they merged.   And because they are two separate uses, single lots with two different uses the subsurface wastewater and dimension requirements do not apply.  Stephen asked how they became one lot.  Mr. Lane said deed book 3330, pg 241.  Conveyed as separate parcels on the same deed with the same owner for both.  

At what point did they merge? What reference do you have to show they merged and became one lot?  Two lots under one ownership with two separate uses.
 Stephen has a difficult time with Mr. Lanes attorney.  Stephen requests a copy of the source that indicates they are one lot.  Mr. Lane said to check the tax card; they are both listed on one deed as two separate lots.  Treated as two separate lots before the was zoning adopted.

Mr. Lane stated you have a single deed that describes two lots, so they where a single lot with two separate uses when the ordinance was adopted.  We are entitled to separate them without complying with the minimum lot size or the Subsurface Waste Water Disposal requirements.
Stephen said the first portion of the presentation indicated two lots, now it is presented as a single lot.  Stephen is requesting documentation indicating as a single lot.  Mr. Lane said on the building card under source reference is one deed, book 3330, page 241 dated 1984.
Stephen asked Fred, if this is a single lot and can it be separated; feels it should still fall under first part and have meet the minimum lot size and wastewater requirement.
Mr. Lane said prior to adoption it is treated as a single lot, and then after the ordinance was adopted it is treated as two lots, because you have two different uses on a single lot.  

Dennis noticed on the tax cards that one lot is .43 of an acre and the other is .13 acres.  The Proposed conveyance is to try to make the lots more equal to the same size.  Once finished wants to re-convey the lot lines so the septic for the smaller lot is on that lot.  Stephen is holding two separate deeds dated in 2011.   Mr. Lane said there is an opinion from the Code Officer that you cannot do that, they merge back together, they are annulity.  For purposes of the ordinance, that is a single lot of record, but because they were two separate uses, they were allowed to create a lot for each that does not need to comply with the last sentence of 4.2.F.3.   

Donna Greenlaw said it sounded like they are turning it into one lot.  Their request is to sell them as two lots.  She has no problem with that at all.

"       Stephen motioned close this portion of the public hearing, seconded by Dennis. The motion passed with a 3 - 0 vote.

Stephen said the presentation has come full circle.  There is conflicting information regarding the status of the existing lots.  Weather they are one or two lots.  He believes the last sentence is for if it is a single lot and they do have to meet the other concerns.  However, he would like more information to make a decision in the affirmative, because there is to much conflicting information presented tonight.  Stephen asks the other board members if there is enough info to make a decision.  Jack agrees they mentioned restructuring lots, he would think they would have all that proposed beforehand.   Dennis agrees there are some unknowns here.  Would like to know what would make this happen.  If the lot lines were moved to accommodate a waste disposal system, can that be done?  Would it have to come back to the board for a variance?  Yes, they would.  The last sentence is a state requirement.   It would be Dennis's preference to table the meeting and then they can submit more info and return.  

"       Motioned by Stephen, seconded by Jack to open the public hearing and asked Mr. Lane to return to podium.   The motion passed with a 3 - 0 vote.  

Stephen asked if he would like the opportunity to bring additional information to another meeting.  Mr. Lane said they would prefer to table and return to another meeting.                     

"       Stephen closed the public hearing, seconded by Dennis motion passed 3 - 0.

"       Stephen motioned to table the application for an administrative appeal request for Barbara Dresser Trustee of property at 7 and 9 Cady Lane, so application can gather additional information for a future presentation.  Seconded by Jack, the motion passed with a unanimous vote.

Comments from the public:  None

"       Stephen opened the public hearing for Christopher Smith, seconded by Jack the motion passed with a 3 -0 vote.
Christopher Smith is requesting a 10' variance to build an attached garage at 208 Pease Road.  Located in the Residential Zone on Tax Map 9, Lot 13-1.
        Christopher Smith is requesting a 10-foot variance to build an attached 28' x 36' garage. It would be 20 -feet from the right side property line.  This lot has 3.75 acres, with a uniqueness to the land is it is surrounded by water from a culvert that comes around half way through the road frontage down the left side of dwelling and out behind it.  The house is about 52 feet to the property line on right rear corner, with the leachfield located in the back, limiting the land out back.

Stephen asked if the storage shed will be removed and the garage will be in that location.  Mr. Smith said yes, and referencing a photo, the proposed garage will not intrude on the property line any further than the existing shed.

Your parcel exists in a residential zone, which requires a 30-foot side setback.  Mr. Smith is requesting to reduce the setback down to 20-feet.  The Board has the ability to reduce the side setback by 20%. Twenty percent of the 30-foot setback is 6-feet, which can only be reduced to a 24-foot setback.  Stephen asked if that is all the Board can do, would you re-configure your garage to make it work.  Mr. Smith said he prefers more.

Dennis asked for clarification, Stephen explains Article 6.2.B.2, which allows the board to grant a reduction of the side setback without you having to meet all four cases of hardship.   Mr. Smith explains it is not the result of the applicant, due to the builder putting the house in a location different from the original drawing.  It is 52 feet from the line and rotated in one direction.

Code Officer Fred Farnham:  Fred adds that in reviewing the development, this was the only lot where the buildable area was limited on both sides by wetland and stands out significantly different from any other.  Fred said this lot is physically different from all the other lots; they all have garages or have the ability to have a garage.

Comments from the abutters: none

Comments from the public: none

"       Motioned by Stephen to close the public hearing, seconded by Dennis the motion passed with a 3 - 0 vote.
Jack said the average width of a two-car garage is 24 feet and it is always nice to have a 28 and 30-foot garage.  

Stephen said is does allow us to give relief, but it is not 100%.  Stephen does agree to give the 6-feet variance and you hopefully can make it work.

Dennis - in order to make it larger, you would have to meet hardship number one,   unfortunately state statute has very difficult standards.  The fourth hardship would have to be met.

"       Motion Stephen to read the last three cases of hardship and award a 6 foot variance on a side setback, second by Jack, the motion passed with a 3 -0 vote.

Stephen reads the hardship cases:
2.The need for a variance is due to the unique circumstances of the property and not the general condition in the neighborhood;
Due to the wetland area surrounding the house and placement of the house by the original builder, they are limited to the location of a garage.  The Board voted and agreed the applicant meets the second hardship, the motion passed with a 3 - 0 vote.

3. The granting of a variance will not alter the essential character of the locality; and
        The applicant is not intending to cut any trees or alter the landscape in any way.  The garage will not sit any   
      closer to the property line than the current shed. The Board voted and agrees the applicant meets the
      third hardship, the motion passed with a 3 - 0 vote.

4. These conditions are not the result of action taken by the applicant for a variance or a prior owner.
    The house was built for the previous owner, but places on the lot by the builder.  The house is closer to the  
     property line than originally proposed.  The Board voted and agrees the applicant meets the fourth
     hardship, the motion passed with a 3 - 0 vote.
"       Stephen motioned to grant a 6-foot side setback for the construction of an attached garage to Christopher Smith.  Seconded by Jack, the motion passed with a 3 - 0 vote.

Approval of Minutes:    
May 1, 2012 -  No quorum, hold to next meeting.

CEO Report: None

Approval of bills:  Portland Press Herald in the amount of $52.20 for legal ads,
Stephen moved to approve to pay Portland Press Herald $52.20, seconded by Jack, the motion passed with a 3 - 0 vote.
Communications: Maine Townsman - May, June and July issues.

Other Business:  Stephen would like to welcome Dennis Santolucito to the Board and thank him for volunteering for the position.
"       Stephen moved to Adjourn at 8:12 pm, seconded by Jack  unanimous vote

Respectfully submitted by Krystal Dyer

________________________________                Date ___________________
Stephen Heroux, Chairman

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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