ZONING BOARD OF APPEALS

Town of Frye Island

Minutes of Meeting of July 27, 2001

 

A. MEMBERS PRESENT: Ernest Wrzesinsky, Paul Lyons, Bruce Nisula, Watson Clark and Barbara Aranyi.

B. OTHERS PRESENT: Alex Wong - Maine D.E.P., Bill Foye – C.E.O. Frye Island, Bruce Lane – Lot 507, Theresa Lane – Lot 507 .

C. LOCATION: Frye Island Community Center

D. CALL TO ORDER: Ernest Wrzesinsky, who was sole nominee and unanimously elected Presiding Officer of the Meeting pending election of a new Chairperson, called the meeting to order at 7:00 PM.

E. PRIOR MINUTES: The minutes of the last meeting of the Board, dated May 26, 2001 were unanimously approved.

G. NEW BUSINESS:

1)  A letter of resignation from the Board of Appeals from Chairman Robert Roberts was read. His election as a Selectman of the Town of Frye Island made it inappropriate for him to continue as a member of the Board of Appeals. A motion was made and seconded to accept the resignation. Unanimously accepted.  On behalf of the Board, a letter will be sent  to ex-Chairman Roberts thanking him for his many years leading the Board.

2)     After his resignation as Secretary of the Board was accepted unanimously, Bruce Nisula was the sole nominee for the Chairperson and was elected to that position by unanimous vote (Chairman Nisula served as Presiding Officer for the remainder of the meeting); Watson Clark was the sole nominee for Secretary and was elected to that position by unanimous vote.

3)     It was noted that the Board had received a request from Rich Roedner, Frye Island Town Manager, to postpone the hearing on a variance request for Lot 91 and reschedule to the September 21, 2001 meeting.

4)     Discussions were opened regarding the Request for Variance from Bruce R. Lane, Lot 507.

Bruce R. Lane, owner, gave testimony on the application.  He testified  that his request to CEO Daigle, the Frye Island CEO at the time, had been for a permit to extend an existing 4’ by 8’ deck along the front of his house. The proposed deck would measure 8’ by 20’.  He provided the Board with a picture of the front of his house showing the existing deck and stairs.  He selected among the several plot plans that he had submitted with the application, the one with “Road 50’” written at the top as the one he wished considered final by the Board.  He disputed the CEO’s decision to require a variance saying he felt he should not need  a variance from the 100’ setback in order to expand his deck in the manner proposed since the proposed deck would not be any closer to the water than the existing deck.  In his opinion, the Shoreland Zoning Ordinance permitted the construction of such a deck without a variance.  A letter to the Board from Robert and Jan Roberts of Lot 111 written in opposition to the granting of a variance was read aloud. Theresa Lane addressed concerns expressed in the letter from Robert and Jan Roberts regarding parking and access for the public to Beach 3. Theresa stated that the realty that handles their rentals has been notified of the problems and there would not be further difficulties. The Lanes have also increased the private parking area on lot 507 to help eliminate interference with public access to Beach 3.

Bill Foye, recently appointed CEO of Frye Island, testified that he had spoken with ex-CEO Daigle concerning the requirement for a variance.  He indicated that at issue was the Lewis vs. Town of Rockport, 1998 ME144 case where the Maine Supreme Court took a conservative stand on the interpretation of the “Expansion of Non-conforming Structures”. The court took the position that the phrase “no more nonconforming” was undefined in the Rockport ordinance and strictly construed that any increase in square footage within the setback would increase nonconformance. He noted that since the inception of the Shoreland Zoning Ordinance a more liberal interpretation had been used by the D.E.P. and many other municipal CEO’s including Frye Island’s prior CEO’s  to permit expansion of non-conforming structures.  Bill stated that as CEO, he needed to know the Board’s interpretation of the ordinance before he could support the proposed expansion in the Lane request.  A Board Member commented that the deck expansion as proposed would be 26%, which is within the 30% limit in the ordinance.

Alex Wong of the Maine D.E.P., who had sent a letter dated July 26, 2001, to the Board stating that the DEP “does not consider this type of expansion, in and of itself, as an prohibited increase in nonconformity”,  also provided testimony.  He noted that under  State of Maine Guidelines For Municipal Shoreland Zoning Ordinances a variance would not be required.  Further, he recommended that the Town of Frye Island consider adding something along the lines of what the DEP currently publishes in their State of Maine Guidelines for Municipal Shoreland Zoning Ordinances:   “Increase in nonconformity of a structure - any change in a structure which causes further deviation from the dimensional standard(s) creating the nonconformity such as, but not limited to, reduction in water body, tributary stream or wetland setback distance, increase in lot coverage, or increase in height of a structure.  Property changes or structure expansions which either meet the dimensional standard or which cause no further increase in the linear extent of nonconformance of the existing structure shall not be considered to increase non-conformity.  For example, there is no increase in nonconformity with the setback requirement  for water bodies, wetlands, or tributary streams if the expansion extends no further into the setback area than does any portion of the existing nonconforming structure.  Hence, a structure may be expanded laterally provided that the expansion extends no closer to the water body or wetland than the closest portion of the existing structure from that water body or wetland.  Included in this allowance are expansions which in-fill irregularly shaped structures.”

 

Findings of Fact

1. The owner of the property is Bruce R. Lane and Mary Theresa Lane.

2. The property is located at Lot 507, in the Residential-zoning district, Shoreland.

3. The applicant is owner, whose deed is dated December 15, 2000.

4. The applicant proposes to add a deck to an existing structure within the 100’ water setback on the subject property.

5. A completed application was submitted June 11, 2001.

6. A public hearing was held on July 27, 2001.

7. Relevant sections of the ordinance are: Paragraph B, Subsection 1: “All new and accessory structures shall be set back at least one hundred (100) feet, horizontal distance, from the normal high water line.”; and 102-12, Paragraph C, Subsection 1, a: “A non-conforming structure in the Shoreland Zone may be added to or expanded after obtaining a permit from the same permitting authority as that for a new structure, if such addition or expansion does not increase the non-conformity of the structure”.

8. Dimensional standards required by the ordinance are: 100’ setback from the water.

9. The applicant stated that he does not feel he needs a variance.

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 200’ deep and 50’ wide.

13. Other relevant facts include the following:. Mr. Daigle, CEO, writes in his letter to the Applicant, dated June 14, 2001, that “on June 7, 2001, Paul Lawrence , PWD, and myself measured from the high water or the full pond to the deck and found the setback to be 53’”. The applicant purchased the property December 15, 2000, which is after the Frye Island Shoreland Ordinance was adopted by the Town. Robert and Jan Roberts sent a letter expressing opposition to the granting of a variance within the 100 ft setback. Alex Wong of the DEP presented the latest version of the DEP’s shoreland zoning guidelines to the Board.

A motion was made and seconded to accept the Statement of Fact as written. Unanimously approved.

The Board considered the facts, and discussed the issue of whether the proposed deck would be allowable without a variance.  The upshot of the Board’s deliberations was as follows: The crux of the question in interpreting the relevant zoning ordinance (Shoreland Zoning Ordinance Section 102-12 Non-conformance) is how to resolve the apparent conflict between the Maine Supreme Court case (Lewis v. Town of Rockport, 1998 ME 144) and the existence and wording of Section 102-12 of the Shoreland Zoning.   On the one hand, in Lewis, the position taken by the Court was that any modification of or addition to an existing non-conforming building would result in an increase in the square footage of non-conforming space, and such an increase is not permitted by Rockport’s ordinance.  Rockport’s Board had used a “no more nonconforming” argument in allowing the expansion, which argument the court rejected.  On the other, the Frye Island Shoreland Zoning Ordinance permits expansion of the non-conforming portion of a structure (albeit by no more than 30% in floor area or volume).  The mere existence of such an ordinance clearly indicates that the correct interpretation of the wording  “increase in non-conformity”  with respect to the Frye Island Ordinance cannot be to restrict the total square footage of non-conforming space, but rather to prohibit the placement of any space beyond the existing encroachment.  For example, since the Ordinance specifically prohibits expanding toward the water body and does not prohibit expansions outside the 100 foot setback, the only place left for such 30% expansions to occur is within the 100 foot setback area, but no closer to the water, which would by definition increase the total square footage of non-conforming space.   Therefore, the correct interpretation of the Frye Island Ordinance is that additions to non-conforming structures, that are subject to the 30% rule, must increase the total square footage of non-conforming space, but shall not increase the existing encroachment on the setback, which would increase the non-conformity of the structure.  In essence then, Lewis does not apply here because the interpretation of the Ordinance is straight-forward, even though the words “increase the non-conformity” are not explicitly defined.

A motion was made and seconded that the Board conclude that the proposed deck would not increase the nonconformity of the structure any more than exists at present; therefore, no variance is required.  Unanimously approved.

H. CORRESPONDENCE AND ANNOUNCEMENTS:

1. Future Meeting Dates as follows:

August 24, 2001

September 21, 2001

October 5, 2001

I.                   ADJOURNMENT: A motion was made and seconded to adjourn the meeting at 9:00 PM. Unanimously approved.

 

Watson Clark

Secretary, Board of Appeals

ZBA Minutes 7-27-01 Rev. 2