ZONING BOARD OF APPEALS
Town of Frye Island
A. MEMBERS PRESENT: Earnest Wrzesinsky, Bruce Nisula, Barbara Aranyi, and Watson Clark
B. OTHERS PRESENT: ( See sign in sheet); Bill Foye, C.E.O. Frye Island
C. LOCATION: Frye Island Community Center
D. CALL TO ORDER: Chairperson Nisula called the meeting to order at 7:00 PM
E. PRIOR MINUTES: The minutes of the July 27, 2001 as revised were reviewed. Accepted Unanimously.
F. Board Chairperson Nisula reviewed procedures for the presentation at the meeting of an appeal application. He also read from Section 102-16,I,2,f of the Shoreland Zoning Ordinance: “The Board of Appeals shall limit any variances granted as strictly as possible to ensure conformance with the purposes and provisions of this chapter to the greatest extent possible and in doing so may impose such conditions to a variance as it deems necessary.”
G. NEW BUSINESS:
1) Discussions were opened regarding the Request for Variance from Frye Island Inc., Lot 91.
Mr. Rich Roedner, the agent for Frye Island Inc., gave testimony on the application giving substantially the same facts as in the written application. He did, however, in the course of the discussion amend the application. He deleted the request for a porch or a deck, and requested a building footprint of 28’ by 42’ with a water setback reduction of 17’ and a front (road) property line setback reduction of 20’. He provided a drawing correcting the scale from the original drawing provided with the application, noting that the latter was in error. In response to a question from the floor, he stated that the septic pump-back would be approximately 300 ft from Lot 91. Ernie Wrzesinsky stated opposition to the variance request and expressed doubts that this can be considered a hardship. He stated that Frye Island Inc has had other opportunities to sell the property and rejected those offers, passing up opportunities to achieve a reasonable return. Chris Gruner stated his opposition to any variance, stating several issues including: 1) that water runs off from sunset road onto the property, and 2) that the property is wet during spring run off and heavy rains. Further, he questioned why Frye Island Inc would fight so hard for a variance on this property when it has many other shorefront properties that could be sold for building. He also testified that he had made an offer to Frye Island Inc. to buy the lot as a privacy lot. Mr. Donahue, Lot #1630, stated he was opposed and also questioned why one would seek a variance on a questionable lot with so many other lots available. Rich Kaplin, Lot #1694, questioned whether the procedure was correct, if Frye Island Inc. could in fact request a variance without the intent to build on the property. Chairman Nisula responded that according to the Ordinance the applicant has the right to request a variance. Bob Roberts asked Rich Roedner if Frye Isand Inc had applied for a building permit. Rich responded no, they had not. Mr. Roberts then questioned the validity of the appeal absent a building permit application. Chairperson Nisula responded that in the case of an Appeal of a decision of the CEO a permit application is required, but not in the case of a Variance Appeal. Dick Norris, Lot #61, expressed opposition to the variance as the lot was originally sold in the early 70’s and he does not believe this is a hardship, and that he was also concerned about water runoff. Don Hadley stated he has no opposition to the variance, that he has been on the property many times and other than a small bog on the property the lot is dry. He also testified that he had offered to buy the lot from Frye Island Inc. as a buildable lot at one time. Rich Roedner presented a drawing showing a small area (10-15’ wide) of bog along a portion of one side. Ernie Wrzesinsky questioned whether in the case of a bog, the 100 ft setback would run from the edge of the bog. Marge Hommel, Lot #68, stated that a bog of this size would not affect setbacks. Questions arose concerning the size of the structure with decks and porches, and Rich Roedner stated that he wished to modify the application to eliminate the porch and deck from the structure. He also stated that records indicate that the last time F.I.I. acquired the property after several changes in owners was in 1986. Jeanne Sullivan Toomey stated that we couldn’t assume that a future owner would build a monster home on the site. Bill Foye suggested that the building orientation could be changed to run lengthwise to the road which would move the structure further from the water and by changing the footprint of the structure to 28’ by 42’ a buffer of land inside the side setbacks of 6’ was desireable to allow for a path. Mr. Roedner agreed to this.
A motion was made and seconded that the Board accept the following finding of fact:
Finding of Fact
1. The owner of the property is Frye Island Inc.
2. The property is located at Lot 91, in the Residential – Zoning district, Shore land.
3. The applicant is owner, represented by Rich Roedner, Frye Island Inc. General Manager.
4. The applicant requests a variance to 30 ft. front yard and 82 ft. from the water to allow a 28’ by 42’ home to be built on this site.
5. A completed application was submitted July 18, 2001.
6. At the request of the applicant a public hearing was postponed from the July 27 2001 board meeting to September 21 2001 and held on that date.
7.Relevant sections of the ordinance are: Section 101-6 F Subsection 1: “minimum setbacks of 50 ft. front yard and Section 102-15 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.”
8. Dimensional standards required by the ordinance are: 50’ setback from the road and 100’ setback from the water.
9. The applicant requests a variance to 30’ front yard and 70’ (amended to 83 ft.) from the water to allow a suitable home to be built on this site. The applicant states that a strict application of the setback standards results in a building area wholly inadequate for the construction of a suitable home on this site. A summary of the Variance request follows:
A. The applicant states that the land in question cannot yield a reasonable return unless the variance is granted. Under existing sales history waterfront lots can easily be sold for $100,000, and a lot without a permitted use has no comparative value. The only viable use on the property is a single-family home.
B. The need for the variance is due to the proximity to the lake, and to a “cove” on the neighboring property. The setbacks from the water along the lakefront of the lot in question results in adequate building area. However, in this case, the lake cuts into the neighboring property, causing the water setback to be measured from the side of the lot, with the resulting loss of building area.
The situation is unique to this lot for two reasons. First, every other lot in the neighborhood is already built on, and second, the other lots appear to have met the setback, as measured from their own property line with the lake.
C. The essential character of the locality is a single-family dwelling. A variance will allow the construction of another single family dwelling, wholly in compliance with surrounding lots.
D. The appellant has owned the property since early 1986. The hardship is not the result of action taken by the appellant or previous owner.
10. Other relevant facts include: In a letter dated July 26, 2001 from Alexander Wong of the State of Maine Department of Environmental Protection Mr. Wong offered the following opinion for board consideration;
“ If a valid permit for waste disposal can be obtained, and if the applicant can adequately address the 4 criteria for hardship, then a variance may be granted. However, the construction of a screen porch and deck are not necessary in order for the owners to obtain a reasonable return on the property. A reasonable sized home, without a porch and deck, is enough for the owners to obtain a reasonable return on the property.
The main proposed structure is a 28 ft by 48 ft house. Whether or not this size structure is the minimum amount necessary to grant a reasonable return is unclear to me at this time. I would like to remind the board that in dealing with this proposal, it should ensure that the structure be limited to the minimum amount necessary to grant a reasonable return, and that any variance should reflect the size of the lot.” Motion carried Unanimously.
The board members discussed their conclusions regarding the justifications for each of the four undue hardship standards. Motions were made and seconded to approve the following conclusions:
1. The applicant purchased the property in 1986 and the hardship is not the result of action taken by the appellant or prior owner. Approved by 3 to 1 vote , Ernest Wrzesinsky dissenting.
2. The granting of a variance will not alter the character of the locality because single-family dwellings are commonplace. Approved unanimously.
3. The need for a variance is due to the unique circumstances of the property which is close to a cove nearby.- Approved by 3 to 1 vote , Ernest Wrzesinsky dissenting.
4. The land in question cannot yield a reasonable return because there is inadequate space between the setbacks for a dwelling. Rejected by 3-1 vote, Bruce Nisula accepting.
5. This lot could yield a reasonable return if sold for other allowable uses. Accepted by 3-1 vote, Bruce Nisula dissenting.
The Board considered the above facts and conclusions. A motion was made, seconded and approved (3-1 vote, Bruce Nisula dissenting) that the application be denied .
2. Discussions were opened regarding the request for variance from John L. and Dylan L. Paladino, Lot 1625.
A letter from John and Dyan Paladino was entered into the record authorizing Don Hadley to represent them on the application for variance. Mr. Hadley gave testimony on the application dissimilar to the facts contained in the original application. It was pointed out by Ernest Wrzesinsky during Mr. Hadley’s review that there were inconsistencies between a layout of the property and proposed building presented by Mr. Hadley at the meeting and the plot plan originally supplied with the application for variance. Mr. Hadley stated that the only changes were related to orientation of the septic tank and drain field, and did not really affect the project substantially. Mr. Hadley, however, admitted that with the design presented at the meeting, the building could be postioned at least 5’ closer to the septic system than indicated in the original application, which would reduce the setback encroachment. It was expressed by several, including Chairperson Nisula, that inconsistencies between the application and the presentation are indeed a concern to be addressed. A further issue was that there were discrepancies between the septic design submitted in the application and that decribed in the presentation. Later, Bill Foye offered the observation that the Portland Water District had changed their septic system requirements since 1989, which was the date on the report in the application. It was questioned whether an updated septic system analysis, performed with an eye to minimizing encroachment on the 100’ water setback should be provided to the Board. A letter in opposition to the variance request sent by Jim Gordon, Lot #1626, was read and entered into the record. Questions were raised as to the size of the proposed structure and whether as suggested by Alexander Wong of the D.E.P., decks were not necessary to achieve a reasonable return. Andy Wright, a potential buyer of the property, stated that they have scaled down the size of the proposed structure to the point where any further changes would likely end their interest in the project. He stated that in their view decks or similar porches are critical for the enjoyment of the property. Rich Kaplin, Lot # 1624, stated that he had no objection to granting the variance request as long as the portion of the structure to the left lakeside face of the structure remained an open deck. Several comments and suggestions were made questioning whether 1) the building could be designed somewhat wider and not as deep so that variances could be minimized and 2) the building could be moved closer to the road which would reduce the impact on the water setback. Discussion by the Board noted that the Town’s setback requirement for accessory buildings, such as garages, was 30’ from the front (road) property line. Chairperson Nisula repeated the Ordinance that guides the Board in considering shoreland variances: “The Board of Appeals shall limit any variances granted as strictly as possible to ensure conformance with the purposes and provisions of this chapter to the greatest extent possible and in doing so may impose such conditions to a variance as it deems necessary.” Further, he opined that accomplishing this would require a statement from a professional engineer or a Portland Water District official as to what minimum distances between property line, septic system, and building could be achieved.
A motion was made and seconded, that we table the application to permit the applicant to submit an analysis of the relative positions of the septic systems and the house and submit a revised site plan showing a building as close as possible but no closer than 30’ to the road property line and encroaching as little as possible into the 100’ setback. Accepted unanimously.
As routinely done, the application will be on the agenda for the October 5, 2001, meeting of the Board.
A motion was made and seconded that the meetings for 2002 be set for the following dates; May 24, June 28, July 26, August 23, Sept. 20, and Oct 11, 2002. Motion accepted unanimously.
H. CORRESPONDENCE AND ANOUNCEMENTS:
1. Future Meeting Dates as Follows:
October 5, 2001
I. ADJOURMENT: A motion was made and seconded to adjourn the meeting at
10:43 PM. Unanimously Approved
Watson Clark, Secretary – Board of Appeals
ZBA Minutes 9-21-01