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Town Seal
Board of Appeals Minutes 08/06/13
Town of Buxton  
Board of Appeals
Tuesday, August 6, 2013 at 7:00 p.m.

Members in attendance: Stephen Heroux, Peter Leavitt, Charlene Libby, Jack Hanna and Dennis Santolucito.

Members not in attendance: none

Others in attendance: Code Officer Fred Farnham, Sharon & Dean McDougal, Robert Wickson, Robert McDougal, Cliff Thomas.

Chairman Stephen Heroux called the meeting to order at 7 p.m. by explaining the process of the meeting.

Public Hearing:  
Douglas McDougal of 9 Court Way is requesting a side yard variance to have an accessory dwelling unit above a proposed unattached garage.   Referencing the requirements set forth in Article 9.6(5) Lot & Yard Requirements of the Town of Buxton Zoning Ordinance.  The parcel is located in the Residential & Shoreland Districts; Tax Map 1A, Lot 111.

"       Motion by Stephen, seconded by Charlene to open the public hearing for a side yard variance for Dean McDougal. A unanimous vote.  
Mr. McDougal began by stating he owns the property at 9 court way.   He is building a new house and has a permit for an unattached garage.  The foundation is already poured.   He now would like to add a bedroom and bath over the garage.  Mr. McDougal handed out two new papers to the Board members.  He explained using the map displayed, that he is 17-feet on back and 14-feet on left to the property line.  Fred said we need a 30-foot side variance due to the living space above. Mr. McDougal added that there is a larger garage with living space above right next door.
Stephen confirmed that the square footage of the garage is 728 sq. ft. on first floor and 520 on second floor.  Sixty feet behind the garage is the new leachfield.  The frost wall for the garage and the proposed house are already in place.  Mr. McDougal is asking for the second floor living space over the garage, since the sale of the second building fell through, we decided to add a second floor.
Charlene asked if a bathroom allowed in a garage.  Stephen asked Fred to answer.

Code Officer Fred Farnham:  Fred stated that there are two definitions from the ordinance that apply and because there is a difference between an accessory structure and accessory dwelling unit.  Fred reads the definitions associated with this property:
Accessory Dwelling Unit:  A room or suite of rooms used by a one, two or three member family which is separate from other existing suites of rooms which comprise the principal living space of the home and which contains independent living, cooking, sleeping, bathing and sanitary facilities.  No such accessory dwelling unit shall contain more than 500 square feet of floor space.  
Fred interprets this to be a small apartment attached to main house or garage.

Accessory Structure:  means a small detached structure that is incidental and subordinate to the principal structure.
Fred interprets this as a small shed or unattached garage.

Accessory Use or Buildings:  A use or structure on the same lot with and customarily incidental and subordinate to the principal use or building.  The term "incidental" in reference to the principal use or structure shall mean both a) subordinate and minor in significance to the principal use or structure, and b) related to the principal use or structure.  Such accessory uses or structures, shall not subordinate the alleged principal or structures use of the lot.  A deck or similar extension of the principal structure or a garage attached to the principal structure by a roof or a common wall is considered part of the principal structure.
Fred interprets this as two definitions "subordinate" and "minor" and the use for the upstairs bedroom and bath over a garage would be subordinate and minor, but it is also related to the principle use of the main structure.   This making the proposed garage an "accessory building."  Therefore, we need to look at what the ordinance allows for an accessory building on a non-conforming lot in section 9.6 Lot and Yard Requirements in Footnotes (5) under Table A.  The applicants proposed structure needs to meet all requirements listed below:
(5)     For accessory buildings on non-conforming lots of record in existence on the date of passage of this amendment, October   28, 1989, the CEO shall allow a reduction, but in no case to less than 12-feet, if the following conditions.
1. The building is not used to house animal. - Fred said they meet this requirement.

2. The Fire Chief has stated in writing that the proposed structure will not cause an increased risk of fire hazard considering the proximity of neighboring structures, the construction material to be used and the proposed use of the structure and that adequate room remains elsewhere on the lot for access of emergency equipment as for fire-fighting. - Fred said they meet this requirement per the letter from the Fire chief.

3.  There will remain a 24 foot separation of buildings from those on adjoining lots.  They meet this requirement.

4.  The accessory building is no larger than 750 sq. ft. and not greater than 18 feet in height.  Fred said only the garage meets this requirement.  By adding the additional living space above it increases the square footage to 1,268 sq. ft. and expands the height over 18 feet.  The proposed is approximately 25 ft.
This is why Mr. MacDougal is before the Board for a variance, to allow the square footage and height.

Section 9, footnote #3 - side yard can be reduced to 20% of the frontage, but not less than 20-feet for non-conforming lots of record.

Jack asked if they intend to build a deck around the top floor.  Fred said it is proposed with an internal stairway.

There were no comments from abutters or from the public.
"       Having no other questions from the Board, Stephen motioned to close this portion of the public hearing.  Seconded by Charlene, the motion passed with a 5 - 0 vote.

Board Discussion:  Stephen addresses this as a setback variance request and interprets that the square footage goes over the 750 sq. ft. the special exception #5 does not exist.  
Charlene added in 9.7 Height Restrictions it indicates that if we allow the height to be more, than the setback needs to be equal to its height.  Stephen continued in granting a setback variance the applicant would have to meet the four the cases or hardship if this is not their primary residents.  Mr. McDougal stated it is not his primary residence.  
Dennis clarified, because this is a setback requirement it has to meet the four hardship questions?  Stephen explains any variance that deals with size reduction, has to meet the four cases of hardship.  For instance, 6.2.B.2 allows the Board to eliminate the first hardship if it is their primary residence.  Dennis continued by asked what percentage are they asking for.  The smallest setback is 14-feet, they are required to have a 30-foot side and rear yard setback in residential.  This is more than 50% reduction on one side.   Peter said if we chose to ignore the square footage and the height than they already have permission to have a garage. (The Code Officer is allowed to reduce setbacks for accessory structures down to 12 feet in Section 9.6 footnote #5) Charlene explained it is the living space above that requires the setback to be 30-feet.  He is looking a 1,100 foot structure.  Fred denied the building permit application due to square footage.  Stephen explains we do give a variance with parameters.  Through our ordinance we will allow a reduction from the standard 30 foot setback with the parameter in 9.6, footnote (5).  Since the proposed building does not meet the fourth parameter of footnote (5), (due to the increase in square footage and height) we do have to consider question #1 or ALL four hardship questions.   Stephen explains that the applicant has changed their plan from the initial garage; they are now proposing living space over the garage.  We are now looking for a 1,100 square footage vs. 750 sq. ft.  Peter feels we are saying the same thing but there may be a gray area in the ordinance.  When the ordinance was developed, for an accessory building, they made a determination that 750 sq. ft. was an appropriate size that would allow it to encroach further into setbacks without having to get a special variance.  But anything larger than 750 sq. ft. has to meet standard setbacks or request a variance to do so.   
A hardship is not, therefore, a condition experienced by an individual.  It is a characteristic of the property itself:
1. The land in question cannot yield a reasonable return under the requirements of this ordinance; the applicant wrote false.  Having no discussion;
"       Stephen asked for a vote to show who thinks the applicant has met the first standard.  The board voted 0 - 5 that the applicant does not meet that standard.

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 wrote true.   Having no discussion;
"       Stephen asked all those who think the applicant have met the second hardship.  The vote passes with a 5 - 0 vote.

3. The granting of a variance will not alter the essential character of the locality; the applicant wrote true.   Having no discussion;
"       Stephen asked all those who think the applicant has met the third case of hardship.  The vote passes with a 5 - 0 vote.

4. These conditions are not the result of action taken by the applicant for a variance or a prior owner. The applicant wrote true.   Having no discussion;
"       Stephen asked all those who think they met the fourth case of hardship.
Discussion: - Dennis questions what is being asked - there is no further discussion.
"       Stephen asked all those who think the applicant has met the fourth case of hardship, 1 vote.  All those who think the applicant has not met the fourth case of hardship, 4 votes.  The hardship is not met.
With the applicant failing on two cases of hardship the Board cannot grant the variance for this application.

"       Stephen motioned to open the public hearing to move further on the agenda, seconded by Charlene.  A unanimous vote.
Stephen continued the Board is not able to grant the variance you are asking for.

Approval of Minutes:    July 2, 2013
"       Charlene motioned to accept the minutes of July 2nd as written, Seconded by Stephen   5 - 0 abstain

CEO Report - none

Approval of bills:  Approve to pay Portland Press Herald $29.70 and $ 34.30.                    
"       Motioned by Stephen, seconded by Charlene to pay the advertising bills.  The motion passed with a 5 -0 vote.
Communications - Maine Townsman

Other Business - Stephen discusses a letter referenced at the last meeting of why Fred just couldn't do this administrative appeal.  MMA Legal recommends that these issues go to the BOA.  Stephen reads the letter "for the third time in recent years Maine's highest court has held the authority to grant zoning variances no matter what they are called, rest with the BOA".  As we advised in May '98 Legal Notes municipalities should review their zoning ordinance for those authority waivers or modifications and either repeals them or reassign the authority for granting them to BOA.  Stating that only the BOA can make a dimensional change.  Currently the ordinance gives Fred the ability to do that, but in the state statutes, he does not have the authority to do that.  A couple places we need to clean up and set up a workshop to discuss after the next meeting.

Workshop on 9/3 to discuss ordinance amendments - Dennis is concerned it will lengthen the process.

Adjourn -  Stephen motioned to the meeting close at 7:44, seconded by Dennis.  A unanimous vote.

Respectfully submitted by Krystal Dyer

________________________________                Date ___________________
Stephen Heroux, Chair

Town of Buxton
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