Minutes of Meeting of August 25, 2000
PRESENT: Bruce Nisula, Ernest Wrzesinsky, Paul Lyons, and Robert Roberts,
PRESENT: (See sign in sheet.) Gerald
Daigle, Code Enforcement Officer (CEO) of Frye Island was present.
Frye Island Community Center
ORDER: The Chairman called the
meeting to order at 7:06 PM.
MINUTES: The draft minutes of the
7/28/00 meeting of the Board of Appeals were reviewed and approved without
1) Variance appeal submitted by John E. Masayda, Lot 63
John Masayda, owner, gave testimony on the application giving substantially the same facts as at the prior hearing and presented, in addition the following: a) Photographs of the subject property; b) Photocopy of a table from “MAINE SUBSURFACE WASTE WATER DISPOSAL RULES”, page 7-3, which he cited as showing that the setback distance for his septic and holding tanks is to be 14 feet; and c) Shaded plot plan showing proposed shed, septic pump and holding tank. The CEO reported that he had been contacted by the owner of the adjoining lot who said he would like to see the sheds be back to back. Bob Defosses, Lot 64, an immediate abutter said he favored the proposed site as giving the most attractive result. Don Hadley, Lot 144, favored the site since it maintained his view of the lake. The Board discussed the photographs showing the characteristics of the property, the dimensional issues and the facts of the appeal. A motion was made and seconded to amend the previously approved Findings of Fact as follows:
Findings of Fact
1. The owner of the property is John E. Masayda.
2. The property is located at Lot 63, in the Residential zoning district, Shoreland. The proposed shed is outside the 100 foot setback of the Shoreland Ordinance.
3. The applicant is owner.
4. The applicant proposes to construct a new accessory building on the subject property.
5. A completed application was submitted June 24, 2000.
6. A public hearing was held on July 28 and again on August 25, 2000.
7. Relevant sections of the ordinance are: Land Use Ordinance Section 101-6, Paragraph H, Sub-paragraph 2.
8. Dimensional standards required by the ordinance are: 15’ setback from the side property line.
9. The variance request consists of a reduction of 11’ in the side setback to allow construction of a 10’ by 12’ shed.
10. The land is being used as residential property.
11. The conditions and character of the neighborhood are not unusual.
12. The conditions of the property are as follows: The lot is 220’ in length and 75’ wide at the road.
13. The reasons presented by the appellant for the variance request is that due “to the topography” of the lot, the placement of the shed requires a variance.
14. Other relevant facts include the following: Nine neighbors and abutters expressed no objections to the variance. Some expressed a preference for the proposed location. Photographs were presented that show favorability of the general area proposed for the shed. A document provided shows required setback from septic disposal system in Maine is 14 feet. Unanimously approved.
The Board Members discussed the applicant’s justification of variance and their conclusions regarding the justification for the first of the four undue hardship standards. It was noted that the applicant could place the shed 6’ from the property line and not be in violation of the plumbing code, while the variance request would place it at 4’. The Handbook for Local Appeals Boards: A Legal Perspective was quoted on the issue of what bearing the personal problems of applicant may have on Board deliberations as follows: “The fact that the landowner had a personal problem which prompted the request for a variance was not legally relevant, no matter how sympathetic the board may have felt.” It was stated that it was proper for the Board to consider aesthetic issues on behalf of the Town. A motion was made and seconded to approve the following conclusion:
The land in question can not yield a reasonable return without a variance because to position the shed elsewhere would prevent a reasonable return.
Approved (Vote 3-1 with Nisula casting the dissenting vote).
The board Members continued the discussion of their conclusions regarding the justification for the second hardship standard. A motion was made and seconded to approve the following conclusion:
There is unique circumstance of the property which is not similar to the general conditions in the neighborhood because of the setback requirements of the existing septic system. Unanimously approved.
The board Members continued the discussion of their conclusions regarding the justification for the third and fourth hardship standards. A motion was made and seconded to approve the following conclusions:
The proposed use will not alter the essential character of the locality because sheds are common place.
The hardship is not the result of action taken by the appellant because the applicant purchased the property in 1979. Unanimously approved.
The Board considered the above facts and conclusions. A motion was made and seconded to approve the application. Approved (Vote 3-1 with Nisula casting the dissenting vote).
1) Variance appeal submitted by Peter Bearor, Lot 85
It was noted that the application package available for timely review by the Board Members lacked the following: a) An accurate and complete plot plan with all dimensions; b) Detailed evidence showing what property features render alternative sites unusable; and c) Documentation that the existing non-conforming shed was an approved structure. Peter Bearor, owner, gave testimony on the application giving substantially the same facts as in the written application. In addition, he stated that placing the shed on the other side of the lot was more expensive in that it would require taking down several trees and excavating to place a foundation. Patty Meyer, Lot 86, favored the addition to the existing shed instead of two sheds. The date of construction of the existing, non-conforming shed was not known, but was stated to have been prior to July 1, 1998. The Board discussed the incomplete and inaccurate nature of the written application. A motion was made and seconded to table the application to the next meeting to permit the applicant time to submit a revised, complete and accurate plot plan and other detailed evidence, such as photographs of the property to show why other areas are judged not feasible for the shed. Unanimously approved.
2) Annual Election of Officers of the Board of Appeals
Election of Officers: Robert Roberts was the sole nominee for Chairperson and was elected Chairman by unanimous vote; and Bruce Nisula was the sole nominee for Secretary and was elected to that position by unanimous vote.
3) Scheduling of Future Annual Elections of Officers of the Board
A motion was made and seconded to schedule future annual elections for the May meeting. Unanimously approved.
4) Impending Resignation of Board member Stan Karpacz
A motion was made and seconded that the Chairman should send a letter to Stan on behalf of the Board recognizing his valued participation as a Board Member, thanking him for his service to the Board and the Town, and wishing him well. Unanimously approved.
5) Modifications to “INFORMATION FOR BOARD OF APPEALS APPLICANTS”
A motion was made and seconded to adopt the draft modifications, dated 8/25/00, of Information for Board of Appeals Applicants as presented to the Board with the following modification: (correct spelling of “Maine” on the last page.) Unanimously approved.
1. Future Meeting Dates as
September 22, 2000
October 6, 2000
motion was made and seconded to adjourn the meeting at 9:37 PM. Unanimously
Above Minutes approved at Meeting of September
Bruce C. Nisula
Secretary, Board of Appeals