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Town Seal
Board of Appeals Minutes 03/05/13
Town of Buxton  
Board of Appeals

Tuesday, March 5, 2013 at 7:00 p.m.
Board members in attendance:  Stephen Heroux, Peter Leavitt, Jack Hanna and Dennis Santolocito.

Board Members absent:  Charlene Libby

Stephen called the meeting to Order at 7:15 p.m. Stephen explained the procedure of the meeting.
"       Motioned by Stephen, seconded by Dennis to open the public hearing.  The motion passed with a 4 - 0 vote.
Public Hearing for Keith Emery of 4 Bruce Woods Road is requesting a variance for lot size requirement.   Referencing the requirements set forth in Article 6.2.B of the Town of Buxton Zoning Ordinance.  The parcel is located in the Rural District, Tax Map 8, Lot 45-2.
Keith Emery explained that he is trying to make his lot a legal lot.  Code Enforcement Officer assisted Keith in the presentation by explaining the   sequence of events on a timeline.  On October 4, 1985, Bruce Emery purchased a parcel of land from an abutter totaling 14.59 acres.  The original concept was to divide it into three lots, giving a lot to three of his children.   This lot was large enough to support three legal lots.  The parcel is located in the Rural district requiring 200,000 sq. ft. per lot, plus the road to access the lots.  The road to accessing the rear lots is 50' x 700' equaling 3,500 sq ft.  Subtracting 3,500 from what is left after the three lots were taken out and the remaining land is 16,359 sq ft.  There was adequate land and proper road frontage for all three lots, but only two lots are conforming.  Keith was not the cause of this.  Site evaluator Tim Brown was only able to find satisfactory soils for the leachfield.  Due to this, a 50-foot path was created for the leachfield.  The building permits were issued in 1985.  In 1986, there was a complete overhaul to the zoning ordinance.  The one amendment affecting Keith's lot was the definition of lot size - "The horizontally projected area of a lot computed exclusive of any portion of a right-of-way for any thoroughfare or easement other than utility easement and any land below the normal high-water line of a water body or upland edge of a wetland."  
With the road included, Keith's lot equals 200,000 sq. ft. but after the 1986 amendment, the road could not be included in the lot size.
Stephen asked if the amendments were passed in June or November of 1986, Fred was unable to answer the question.
The abutter on lot 45-4 said they would give him land, but it was not enough.  Keith would still need additional land from lot 45-5, who is not willing to give up any land.  In 2001, Keith tried to extend the Village zone down past his lot, but it failed on the November ballot.  Keith has had two failed attempts trying to make his lot legal as requested by the Board in 2004. He is now asking the Board to grant a lot size variance.  He needs 22,013 sq. ft.   
Questions from the Board:  Dennis asked when Paucek Kennel was re-zoned. Keith said it was re-zoned in the late 90's, but they did not take the village district down any further.  They stopped right at Bruce Emery's property line on lot 40B.   
Peter said Fred stated earlier the lot was less than 15 acres, adding that square footage is more important that acreage.  Fred said the Town's acre equals 40,000 square feet, making the Rural zone 4.6 acres.  

Jack said he was here when Keith came before the Board in 2004.  He asked by putting the road through, the way it is drawn out; it looks like Keith has two separate lots.   Fred said the road is just an easement to the back lots, Keith owns the road and the land on both sides. The road cannot be counted toward his lot size; it is a private road and always will be.  Peter asked what the intent of the amendment was, Fred did not know.
Stephen said since this parcel is divided amongst family members, that it did not need to go through the Planning Board for subdivision approval.  If this were divided today, would they have to go through the subdivision process?  They could divide a lot every five years to split of each lot and would not need to go through subdivision.  Back in 1985, it was even more liberal.   

Abutters:  Bruce Emery said when they re-zoned it stops at my property line.  They included the other lot but stopped at my line.  Before we bought the land, I came to the town and asked what I needed for three lots and they told me fifteen acres.  That is what I bought.  Dennis asked Mr. Emery to show the Village zone in relation to his property on the map.    
Tim Smith abutter on lot 45-2A added that in August 1994 the original owner of the Mustard House had the properties rezoned.  Only a portion of the property was re-zoned to Village.  He explained by pointing a map, how it was rezoned through the current subdivision.  When Keith originally tried to re-zone, it include my driveway and I was against it at the point.  Now this variance has nothing to do with our driveway, I am an abutter and I have no problem with this variance request going through and Keith being allowed to use that property.

Keith said when they re-zoned to village the article was written wrong and the re-zone verbiage went too far and include Mr. Smith's driveway.  The intention was to go to his driveway, not to include it.  
Peter asked you include all the square footage on your driveway it is not enough, you need to include the driveway all the way up to the two back lots, correct.  Stephen said for clarification the total amount of the driveway is 35,000 square feet and they need 22,000 sq. ft.

Public comments: There are no public comments.

"       Stephen motioned to close the public hearing, seconded by Dennis, passed with a 4 - 0 votes.

Discussion of the Board:  Stephen said it's always the forth case of hardship that we always struggle with. I do believe the time line was very close from the purchase, the change in the ordinance and to the development of the lots.  The intent was to divide into three legal and conforming lots.  Peter again asked why they put that in the ordinance.  He does not know why you cannot count your own land, just because there is a right-of-way on it.  It seems odd it's your land.  

Jack said he thinks Bruce's intentions were well and Keith was stuck in the middle.  It will never be a town road and he said everyone has enough land.  Dennis said That Bruce Emery spoke to someone at the town to get the proper amount for three lots.  Mr. Emery thinks it was the former Code Enforcement Officer Leo Groder.  Dennis sees it as a clear intent, this is not going to create any new lots, new roads or additional buildings, it is just adjusting to make it correct.  Dennis looks at number four and he feels the hardship was not created by Keith or Bruce, so he does not have a problem with number four.

Peter questioned that without the rights-of-way, if the 1986 rule never came in, is there enough square footage on the third lot?  Yes it was.  Keith pays the taxes on the road.  Peter asked is there any part of number four that you think the previous or current owner is responsible for this situation.  Peter does not see were Keith or the previous owner is responsible or make a mistake.

The Vote:
Stephen begins by stating the applicant must meet all four cases of hardship:
1.      The land in question cannot yield a reasonable return under the requirements of this ordinance;
The applicant states the lot was purchased with the intention of dividing into 3 lots.  The original parcel had sufficient are, but was not split correctly.  
"       The board votes and agrees the applicant has met the first hardship with a 4 - 0 vote.

2.      The need for a variance is due to the unique circumstances of the property and not the general condition in the neighborhood;
The applicant states the shape of the property required an r-o-w for a third lot to have adequate frontage.  The only suitable septic sites required the two lots in the rear.
"       The board votes and agrees the applicant has met the second hardship with a 4 - 0 vote.

3.      The granting of a variance will not alter the essential character of the locality;
The applicant stated the property abuts the Village District (80,000 sq ft) and the Residential District (120,000 sq ft) is all along the opposite side of the road.  
"       The board votes and agrees the applicant has met the third hardship with a 4 - 0.

4.      These conditions are not the result of action taken by the applicant for a variance or a prior owner.
"       The applicant stated when the lot was purchased in 1985; the definition of lot size did not exist in the ordinance.  The present definition that excludes r-o-w from lot size was enacted in March 1986.  It was only two years later that these lots were created.  The lots were divided based on what was known when originally purchased.
"        The board votes and agrees the applicant has met the third hardship with a 4 - 0.
Having met all four cases of hardship,
"       Stephen motion to grant Keith Emery a lot size variance of 22,013 square feet making it a legal non-conforming lot in the town of Buxton.  Seconded by Peter, having no discussion the motion passed with a 4 - 0 vote.

Approval of Minutes:    
December 4, 2012 - put them off until next meeting

CEO Report:  none

Approval of bills:  Approve to pay Portland Press Herald $32.40 for legal ad for the Dresser application on November 2012.
"       Stephen motions to approve payment of $32.40 to the Portland Press Herald, seconded by Jack, the motion passes with a 4 - 0 vote.

~Maine Townsman - December, January and February issues.

~Question asked to research with Maine Municipal Association.  Could a setback variance be granted through the Code Enforcement Office?  MMA confirmed that only the Board of Appeals may grant variances of zoning dimension requirements.  

~discussion of lot splits:  is it a common mistake to not factor in the road when splitting land.   Should the Town require any/all divisions of land be reviewed by the Planning Board?  It would not be for subdivision review but for lot dimension.  They would not be required to do a site walk, etc….  Not sure if that is asking too much.  This way the town would know what is being separated and if it meets all the town requirements (roads, setbacks, frontage, square footage, etc...)  The applicant can also ask questions.  Peter being the person to argue the other side added that as a person who wanted to subdivide my property, I would not want to go any extra steps that I do not need to go.  To me there is too much regulation now!  Could that question be answered by Fred? does everyone have to go through Fred to subdivide their property?  Anyone can separate their property.  Peter said that as a town official he thinks it is a great idea but as homeowner, I do not want any extra hoops to jump through.

Other Business:
Stephen reviewed and approved the town report submission.

"       Stephen motioned to close the meeting at 8:01 p.m. Seconded by Dennis.  A unanimous vote.

Respectfully submitted by Krystal Dyer

________________________________                Date ___________________
Stephen Heroux, Chair

Town of Buxton
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