TOWN OF WALDOBORO
Zoning Board of Appeals
Meeting Minutes
October 19, 2004
PRESENT: Art Emanuelson, Tyler Lupien, Barbara Swiderek, Russ Hansen, CEO John Black
ABSENT: Sam Chapman
PUBLIC: Les Murray, Claire and Bob Bowley, Evelyn Winchenbach, Sam Cohen, Martha Boggs, Lois Graffam, William Howlett, Carleton Johnson, Mark Berger, Edith Berger, Mary Bumiller
Russ Hansen was appointed to be acting Chairman. He called the meeting at 6:36pm. Mr. Hansen welcomed Tyler Lupien to the board. Roll Call was taken at this point.
Shoreland zoning-Section 15. Lot Use Standards - A. Minimum Lot Standards 1. B. Principal and Accessory Structures 1. (Setback of 75 feet from high water):
Jane Farley Simonds is requesting a variance provided for under Section 16. Administration G. Appeals, 1. B. Variance appeals and 2. Variance Appeals to re-construct and enlarge a building that is beyond reasonable repair at 759 Deaver Rd, Tax Map R9, Lot 94-2A. Les Murray is representing Ms. Simonds and he is her building contractor as well as caretaker of this property. Ms. Simonds verbally told CEO Black that Mr. Murray would be representing her.
She has a building she would like to add 30% volume to but the building is rotted out and they would therefore like to tear this down and rebuild it on the same footprint with the added 30% of volume. This is located in Shoreland Zone 34 feet from the water.
It was determined that there is no one on the board with a conflict of interest. The Board has jurisdiction as determined under Section 16, G. 1B - Shoreland Ordinance and the BOA Manual from MSRA page 12 and 13. Also determined was that Mr. Murray has standing for this appeal.
The standard of review features were looked at. The Board can here all evidence new as a variance appeal. Mr. Hansen then read the 4 criteria to be met as noted on the back of the application. There are 6 state requirements to be met. The Board can impose limitations as well.
This building would be used as an art type studio. The only part of the building of any use currently is the roof. Rebuilding would also be more cost effective. Initially the applicant wanted to add her 30% cubic percent she is allowed in shoreland zone. Her septic meets these requirements.
Town of Waldoboro
Zoning Board of Appeals
Meeting Minutes
October 19, 2004
Page Two
Mr. Hansen noted a variance may not be granted if there is a change of use. The use of this project is an accessory building.
The footprint will stay the same, 30% of volume will be added. Once 50% of the value is lost within that setback of shoreland it can't be replaced after a year has passed. At this point it is not damaged, it is rotted out in many places and there is not a solid base. The structure will not have heat.
CEO Black told the Board to possibly look at this lot as having no building on it.
STANDARDS OF REVIEW
1. The land would be worth more if the outbuilding is redone. It is in danger of collapsing now.
Mr. Emanuelson asked for a ballpark figure on restoration which would be around $41,900. To tear down and rebuild the cost would be around $30,000.
The entire building is in shoreland. Rebuilding would et this up and off the ground. No other spot on the lot to build is available.
A brief history of the land, and how it was divided up was given. It was an estate petition.
Mr. Hansen thinks that Mr. Murray cannot meet the burden of proof needed to grant the variance and either he or Ms. Simonds should come back and be prepared to answer the questions with more detail.
MOTION The Board unanimously agreed to defer this agenda item.
Shoreland zoning-Section 15. Lot Use Standards - A. Minimum Lot Standards 1. B. Principal and Accessory Structures 1. (Setback of 75 feet from high water):
William Howlett is requesting a variance provided for under Section 16. Administration G. Appeals, 1. B. Variance appeals and 2. Variance Appeals. A stop work order was issued by the CEO and the applicant is appealing the decision for the property at 121 Jefferson St., Tax Map U 5, Lot 3.
Mr. Howlett read the definition of structure from the dictionary. He is putting a temporary storage tent facility on a wooden platform set on 4 posts. The tent and platform are not permanent. Mr. Howlett feels this cease and desist should be removed.
Town of Waldoboro
Zoning Board of Appeals
Meeting Minutes
October 19, 2004
Page Three
The Board determined there are no conflicts of interest to hear this case. Jurisdiction was established. Standing of the applicant was also noted. Mr. Hansen noted the Board can reverse the CEO's cease and desist order if need be.
Accessory Structures Ordinance was looked at. Mr. Howlett states his tent is not a permanent structure and therefore this ordinance does not apply. Mr. Hansen read the definition of structure from Shoreland Zone Ordinances. Mr. Howlett asked if a trailer with wheels would be considered a structure.
Mr. Emanuelson asked Mr. Howlett what the purpose of the tent would be and it will be used for storage.
Mr. Cohen is representing Martha Boggs, an abutter. He feels this is an attempt to circumvent the previous denial for a variance to build a garage. Mr. Cohen cited an example of Pemaquid Campground. He states again that Mr. Howlett's proposal is a permanent structure.
Mr. Hansen states that as a practical matter it is not a temporary structure. Mr. Howlett says then to define temporary.
Mr. Cohen then cites setbacks are not met from the property line if this tent is erected.
Mr. Hansen asked Mr. Howlett to prove CEO Black's cease and desist order is wrong. Mr. Howlett states that all three violation sections use the word structure and that this tent is not an actual structure.
Mr. Hansen again looked at the definition of structure in Shoreland zoning - anything built for shelter of goods or property of any kind and includes temporary or permanent.
Mr. Howlett states a structure of most kinds have a base, walls, and a roof.
Mr. Hansen noted the Board has to go by the definition in the Ordinance. He cited that CEO Black acted within the Ordinance under the definition of structure.
Mr. Emanuelson asked CEO Black if a pile of pallets on the ground was a structure. It is not.
Town of Waldoboro
Zoning Board of Appeals
Meeting Minutes
October 19, 2004
Page Four
MOTION: Ms. Swiderek motioned that the notice was written within the definition for the Board to work under, seconded by Mr. Emanuelson and approved 4-0. The Board denied the appeal.
Minimum Lot Size - Section 8, Lots not Served by the Municipal Sewerage Treatment Facility and the Waldoboro Water company Facility and Sectin 17, Variances and Waivers and Title 30-A 4353, Zoning Adjustment, $. Variances of the MRSA.
Mark and Edith Berger request a variance from the two hundred (200) foot requirement of road frontage to the approximately one hundred fifty-eight (158) feet along Bremen Road as the frontage for the 12 +/- acre lot that also has two hundred seventeen (217) feet of frontage on Pine Street. 161 Pine Street and 80 Bremen Road, Tax Map U11, Lot 30.
The Berger's bought the land to protect the neighborhood but would now like to sell the Pine Street lot. This would then mean the Rout 32 side doesn't meet the 200 foot requirement for road frontage.
The Board established no conflicts of interest, MSRA 4353 1 for jurisdiction, minimum lot size requirement and appeal of decision of CEO also gives authority to hear this appeal.
The new buyers of the Pine St. lot applied for a building permit that was denied.
Mr. Hansen went over the Standards of Review.
The map of the property was shown to the Board. The variance is to allow 8-9 acre lot to have only 158 feet of frontage. This lot was created back in 1987. According to the Berger's this is not a profit driven project.
Right now the lot is conforming because of the total foot frontage on both streets. If the lot is sold on Pine St. the Route 32 lot is then a non-conforming lot.
Mrs. Winchenbach is concerned about the right of way and where it would be located.
Carleton Johnson stated that right now there is no plans to do anything on the Route 32 lot. The Berger's just want to keep this lot but legally they need a variance for frontage requirements. CEO Black stated there is a current driveway right on the property line that is grandfathered.
Town of Waldoboro
Zoning Board of Appeals
Meeting Minutes
October 19, 2004
Page Five
Mr. Johnson again explained to Mrs. Winchenbach exactly what the Berger's wanted for a variance and how the road frontage requirement works.
CEO Black explained to Mr. Hansen what access to a back lot means.
Mr. Johnson then read the Berger's justifications for this variance as noted on the application.
Mr. Hansen asked why the Berger's bought the lot if it had an unreasonable return. They wanted to keep it from being developed. They always planned to sell a portion of this though. The town enacted a moratorium 15 years ago preventing intense sub-divisions. Therefore the Berger's could not build such a project and yield a reasonable return.
Topigraphically there are issues why it cannot be subdivided and therefore they are trapped in Ordinance jurisdiction as to what needs to be met to yield a reasonable return.
The only thing being presented as a buildable lot is the Pine St. Lot. Route 32 lot should not be looked at as buildable.
Ms. Swiderek asked for clarification of what is being asked for.
All lots created after 1987 will meet minimum lot size requirements.
Ms. Swiderek notes on page 1, paragraph 3 in the Ordinance. The non-conformity being created would be lack of the 200 foot road frontage requirements.
Mr. Johnson then went over #2 of the requirements. Dividing this lot keeps with past practices of land in this area. It is a unique property as it has frontage on two streets and is only property like this in the area.
Mr. Berger said if one doesn't ask for a variance they are left with 2 options - nothing or a vary large expensive project. They cannot afford this nor does anyone want a development in this area.
Ms. Swiderek said in the past that reasonable return has not always been interpreted as financial. Mr. Johnson expanded on this a bit more in that singular financial criteria was not always stated as the only reasonable return. Mr. Hansen wanted examples of community hardships and not financial ones.
Town of Waldoboro
Zoning Board of Appeals
Meeting Minutes
October 19, 2004
Page Six
Claire Bowley is the buyer for the Pine St. Lot. She commented on how much research has gone into this sale. At the very end it was noted about the road frontage requirements. She has also invested a lot of money into this as well.
Mr. Johnson went over the third review standard. The aspects of the neighborhood were talked about and how this variance would keep the neighborhood character as it is.
Regarding the fourth review standard the lot lines have not changed since the 70's. Adoption of the ordinance in 1987 has created a hardship.
Mr. Hansen states that by selling off a lot it is a self-created hardship.
Mr. Berger noted the frontage on Route 32 is not a buildable frontage. It would act as means to access the deeper portion of the property. It would serve as a driveway only. The frontage is actually a gravel pit area.
Mr. Bowley states the topographic value of this property is granite, steep grades on this ledge, etc. It is a great big rock. It could be constructed on but he would not as it would be very expensive.
Mr. Berger cited again they are not looking at gaining anything financially by selling the Pine St. lot. They are in limbo legally by trying to create a conforming lot but being left with a non-conforming illegal lot.
Review Standard One - Ms. Swiderek feels the Berger's met the burden of proof. Either keep the land or sell to a developer. It is less money to keep the character of the neighborhood and Mr. Lupien concurs. Mr. Hansen and Mr. Emanuelson oppose this view.
Review Standard Two - The Board unanimously feels this requirement was met.
Review Standard Three - The Berger's have imposed their own restrictions and this is all in writing. They are willing to make it so there is no subdividing on the remaining land. Mr. Lupien wanted to know how many houses they would allow here and it would be two at most. The Board unanimously agrees with this proposal.
Review Standard Four - The agreement for this standard was 3-1.
Town of Waldoboro
Zoning Board of Appeals
Meeting Minutes
October 19, 2004
Page Seven
The tie on Review Standard one would prohibit granting the variance. Mr. Johnson stated that now that the Board knows only two houses can be built if this would change the minds of those in the negative. The mass developing theory is now obsolete. This would change the outcome of the initial test. Mr. Emanuelson is ok with this as long as only the two house limit is followed. This therefore breaks the tie and the variance can be approved.
The restrictions that need to be met for this variance are those that are already in place in writing for the Pine St. lot, only two house maximum can be built on the Route 32 lot, try to move the driveway as much as possible away from the property line as reasonably practical or 10 feet whichever is met first.
MOTION: Ms. Swiderek motioned to grant the variance on minimum road frontage with conditions of no more than 2 houses to be built and the driveway is moved as far as reasonably practical or 10 feet, whichever is greater, seconded by Mr. Emanuelson and approved 4-0.
ADJOURN
Adjournment was made at 9:00.
Respectfully submitted,
Norma A. Hill
Secretary to the Board