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Town Seal
 
Board of Appeals Minutes 09/03/13
Town of Buxton  
Board of Appeals

Tuesday, September 3, 2013 at 7:00 p.m.
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Minutes

Recorded by Krystal Dyer

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

Members not in attendance:    Stephen Heroux (left at 6:56pm for School Board meeting)

Others in attendance: Stephen and Linda Anthony, Code Officer Fred Farnham, Darryl Camire, Cliff Thomas

Call to Order at 7 pm
Charlene open meeting at 7 pm.  Motion passed with a 4 - 0 vote.

Public Hearing for Stephen & Lori Anthony of 356 Old Orchard Road are requesting a rear setback variance on three existing buildings.   Referencing the requirements set forth in Article 6.2.B.2 of the Town of Buxton Zoning Ordinance.  The parcel is a legal non-conforming lot located in the Residential District; Tax Map 10, Lots 48.
Stephen Anthony is requesting a rear setback reduced from 30 feet down to 18-Feet.  Referencing the boundary survey map, Peter verifies the three existing buildings as a garage, portion of house on post, and the second story deck.    In 1995 Mr. Anthony was under the impression that Fred could give a 20% reduction of the setback for the garage.   He has since realized the 20% reduction of the setback is only allowed on the two side setbacks in that zone.   Mr. Anthony stated he does not agree with that part of the ordinance. Mr. Anthony continues "The second story deck over the garage (used as a bedroom) was built only five feet wide, because it would have to meet the setbacks if the 20% setback was allowed.  The deck is only accessed through this bedroom.  This area was previously used for dry storage and then converted to a bedroom several years ago.  I have a permit for the interior conversion, but not for the deck".  He assumed he could build a deck if stayed under 24-foot setback.  
The house on posts was built in May 1998, added as a master bedroom.   He believed he had gained 7-feet in depth, because his lot is wider at that corner (shaped like a funnel).  Mr. Anthony thought he could have 6-feet due to the 20%.   He now has a professional survey of his property and sees the difference.  

Charlene clarifies that a variance was attained for a front yard setback in 1995, but did not use it.  Mr. Anthony said "That would have allowed me to put the garage a lot closer to the road.  The variance allowed me to go from 40-feet to 24-feet, giving me a 16-foot reduction."   The red dashed line indicates the buildable area allowed.  Mr. Anthony did not use the variance; he wanted to make the house, breezeway and garage straight across the front.   The back corner is at 29-feet.  Mr. Anthony said "I thought I had the thirty foot cleared as well as if I was allowed the 20%."  Charlene is confused about the letter Mr. Anthony submitted and what he was saying at the meeting.  Mr. Anthony explained that he could not get to his backyard on that side.   He did try to attain land from the previous and current abutters to give him more land to meet setbacks.  The stand-a-lone garage was built in 2008.  Filed for building permit, met all setbacks, but still did not build within the setback range.  Mr. Anthony still thought he had the 20% reduction.  Charlene questioned Stephen said "he did not cross that point.  In my mind I never went back to code office.  I made the assumption it was allowed."  Without board review - he thought Fred could give me that difference automatically.  His assumption was wrong.  Mr. Anthony still thinks the ordinance contradicts itself.  Charlene is confused by the sequence, the timing and the knowledge of his land.  Not being able to get to the back of his property, and knowing he was encroaching on area that he shouldn't, but assuming that Fred could automatically issue a permit?  Mr. Anthony responded with "Yes, in my mind I never did go back to correct it with Fred, and to ask for the 6-feet.  I made the assumption that it was allowed."   "When I built the first garage, Fred made the comment 'without a Board review' I thought he could give me that distance automatically.  The ordinance contradicts its self."

Code officer comments:  Code officer Fred Farnham clarified the difference of 40-foot front setback and the 24-foot obtained by the BOA.  Originally when the house was constructed, Mr. Anthony was granted a 24-foot setback vs. the 40.  When he came for the garage permit, was the variance granted for the house or did it pertain to any other structure along the front.  Fred interpreted it was just for the house.  Mr. Anthony came back to get a variance for the garage also.  When he came for the accessory garage, on the building permit application the front yard setback is listed as 40 and 30 foot for the rear setbacks.  The garage does meet the 40-foot setback, but pushes the rear of the garage out of the buildable area.   When sold his house and had a survey.  
Peter questions why this is an issue now.  Mr. Anthony's house is for sale and in the mortgage survey plotted them.  Peter asked Fred "In your opinion can we grant a rear setback variance?  Fred believes it is in the ordinance for the Board of Appeals to do that, by going through the four cases of hardship.
Jack confirms with Fred that the setbacks are all right.  Fred agreed the front is ok, but the rear set back is what is in question on all three areas.   

Abutters:  Darryl Camire owner of the property behind and on the southern side of Mr. Anthony's property (Tax Map 10, Lot 49).  Asked Fred to define a rear setback, does it mean approximately 30-feet?  All the permits are required to have a 30-foot setback.  In 1997 worked with Mr. Anthony to make sure the front setback was met.  1997 Mr. Anthony got a variance for the front.  Mr. Anthony knew where the setback was.  A five foot deck, according to town records, is a 6-foot deck.  A 30-foot setback is a straight line.  Was established under a permit, and the Appeals Board determined a 24-foot setback.  How could Mr. Anthony approached me in 1986 about buying land, when I didn't  purchased my property until 1998.  Mr. Camire's biggest issue is with the 16 x 22 addition on the back of house, built in 1999 where without a permit, he just built it.  Peter asked if "at that time did you go to the Town and complain."  Mr. Camire replied, "At that time he told me he was too close to the property line and he wanted to buy some land."  Nothing was said for 15 years.  Mr. Camiere continued, "The garage on the other side of his property was built under a permit.  It is 21.6 ft. from the rear property line; this is still not 30-feet.  After addition was built a complete apartment was added above the garage without a permit.  This is now a two unit house on a .66 acre parcel.  An after-the-fact permit was issued in 2007 for something built in 1998.  He also has a finished basement that he never obtained a permit for."  Peter explains that the Board understands his frustration, but can only deal with the variance request in front of them tonight.  Mr. Camire felt the Board was a little biased, since Stephen was a past board member.  Peter clarified that none of the current board members have ever looked at an application for Mr. Anthony.  Mr. Camire continued to ask questions not related to the appeal.  " Who is responsible for the remaining encroachments, the new owner?"

Mr. Anthony return to the podium to clarify the area above the garage, "This area was previously used for dry storage and converted into a bedroom.  The realtor may list a property differently to sell it.  My mother resided there for about five years.  I call it a bedroom not an apartment.  Wonder about a leachfield design for a 2 bedroom house, Fred has on record a back-up system.  When the second garage was built, the State required a backup system in the event the original failed.  The replacement system is designed for four bedrooms and its filed on record."

Mr. Anthony answers the hardship questions:
1.      The application is exempt from the first hardship due to this being his primary residence.

2. The need for a variance is due to the unique circumstances of the property and not the general condition in the neighborhood;
Mr. Anthony states that this property was a very unique circumstance due to the lay of the land being narrow and long.  The issue was with the depth.  It needed a variance right from the start.

3. The granting of a variance will not alter the essential character of the locality; and
The buildings do blend in well with the neighborhood the add-ons and the configuration with the pre-existing buildings, it does not out way the neighborhood, and it looks like it all belongs.

4. These conditions are not the result of action taken by the applicant for a variance or a prior owner.
Mr. Anthony read the sub heading 'The Hardship is not, therefore, a condition experienced by an individual'.  Mr. Anthony ststed, "The lot of land is the hardship, created when the zoning came into effect.  When the restrictions were put on the lot, that's what created the hardship.  I purchased a dwelling that was already in need of a variance, because banks will not finance without a clear title.  The variance gave the property the clear title and then I came into the picture.  I feel the conditions were caused by the restrictions the Town placed on the lot when zoning was created and became rule.  We have to understand when zoning was put into place, and why Board of Appeals was created.  Because the Town and the forefathers knew these types of scenarios may come along."  

Charlene asked, "Other than the size and shape of the lot, what makes your property unique, are there any wetlands, ravines, etc..."   Mr. Anthony replied, "The placement of the pre-existing house, the septic tank to the left side of the house, and leachfield in the front between the house and the garage make it unique.  When I started adding on, I wanted to go out not up, keeping everything on one level."  
"       Motioned by Charlene, seconded by Peter to close this portion of the public hearing.  Motion passed with a 4 - 0 vote.

Board discussion:
Charlene senses this situation is not all that unique giving the size of the lot and everything that we are hearing is based on poor judgment or miss understanding.  Has a hard time and based on my understanding of the code there are rules in place for handling non-conforming lots.  This situation does not have anything to do with those rules.  If they had come to the Board before it was created, we could have made recommendations or suggestions.  Charlene has a hard time supporting an 'after-the-fact" project.  What good is to have this committee and our ordinance?  Charlene does not see how she can support it.  
Peter added that in a way a variance can make an issue to go away.  If it's with our right to grant a variance, I usually will say just grant a variance.  Peter understands Charlene's position, but adds that's why the Board is here to grant that variance to make the issue go away.  And they have to meet the remaining three hardships, which is not easy to do.
When Dennis looks at this he sees a lot of confusion over a long period of time, going back to 1997/98.  Do not feel there is enough clarity around the lack of communication between the applicant and the Town.   Dennis would be inclined to grant the variance to get it cleaned up at this time.  He does not feel it would impact the neighborhood.
Jack can agree with Dennis, we have only few non-conforming lots left and it would be good to clear them up and get them out of the way.  Even though there are a few violations it's been going on way to long.  Hope to get more of these non-conforming lots straightened out.

Peter asks the Board if we should re-open for the abutter to speak, 3 - 1vote.
"       Peter motioned to re-open the public hearing, seconded by Dennis the motion passed 3 - 1 vote.

Mr. Camire would like the Board to do an on-site evaluation with the Code Officer.  He also requested for the Fire Department to inspect the so called bedroom apartment.  Peter explains that these are not the issue before the Board at this time and the Board cannot discuss it.  
"       Motioned by Jack, seconded by Dennis to close the public hearing with a 4 - 0 vote.

A variance may be granted only if it meets all the requirements of the Buxton Zoning Ordinance Laws in the State of Maine.  In order for a variance to be granted the Board must find for the applicant on the following questions which are asked to determine hardship:

1.      The land in question cannot yield a reasonable return under the requirements of this ordinance;  
The applicant is exempt because it is his year round residence.

2.      The need for a variance is due to the unique circumstances of the property and not the general condition in the neighborhood;  
"       All Board members who feel the applicant has met this hardship, a 3 - 1 vote.  The vote passes.


3.      The granting of a variance will not alter the essential character of the locality; and  
"       All board members who feel the applicant has met hardship #3 the vote passes with a  4 - 0 vote.

4.      These conditions are not the result of action taken by the applicant for a variance or a prior owner.
"       All Board members who feel the applicant has met this hardship 2 voted yes; 2 voted no.  The motion has failed.  The applicant is denied the variance.

Approval of Minutes:    
August 3, 2013  
Motioned by Charlene to approve the minutes of August 3rd, 2013, seconded by Peter the motion passes with a 4 - 0 vote.

CEO Report: None

Approval of bills:  None at this time
        
Communications:
Maine Townsman

Other Business:
Workshop to discuss ordinance amendment: postpone for the October 1st, meeting.

Adjourn:
"       Motioned by Charlene, seconded by Peter to close the meeting at 7:51 p.m.  a unanimous vote.




Approval Date:  __________

___________________________________                                             
Peter Leavitt, Vice Chair                                               Date


 
Town of Buxton
  185 Portland Road, Buxton, ME 04093 (207) 929-5191
Mon, Tues, Thur, Fri 8:30am to 4:30pm & Wed: 11:30am - 7:30pm