BOARD OF APPEALS
Town of Frye Island
MEMBERS PRESENT: Bruce Nisula (Chairperson), Watson Clark, Barbara
Aranyi, Paul Lyons, and Earnest Wrzesinsky.
B. OTHERS PRESENT: Code Enforcement Officer Bill Foye and others per sign-up list
LOCATION: Frye Island Community Center.
CALL TO ORDER: Chairperson Bruce Nisula called the meeting to order at
PRIOR MINUTES: The minutes of the last meeting of the Board, dated May
23, 2003, were distributed and reviewed. A motion was made and seconded to
approve the minutes as written. Approved Unanimously.
OLD BUSINESS: None
G. NEW BUSINESS: Bruce Nisula provided the Board members with a copy of the Order On 80B Appeal, Earnest and Shirley Fielder Vs. Town of Raymond for Board review in a subsequent meeting.
Bruce Nisula then stated that the Administrative Appeal case and Variance Application from Carmen B. Byrnes, lot 44 would be reviewed during the course of this meeting. Bruce then outlined the responsibilities of the Board for review of the facts in the case and noted that the Board was required to rule on those facts as presented, within the guidelines as set out in the ordinances.
Bruce stated that the Administrative Appeal would be considered first, and if granted then the Variance Application would be considered. If the Appeal were not granted then there would be no need for the variance request to go forward. Attorney Fletcher identified himself as attorney and spokesperson for the applicant and stated that he wished his letter of November 22 to be treated as the basis of the Administrative Appeal, which appeal is based on the applicant’s contention that the denial of the permit on the part of the Code Enforcement Officer was based on a misinterpretation of the ordinance.
Mr. Fletcher spoke briefly regarding the background of the case and the basis for the Administrative Appeal, and presented into evidence as a supplement to the application a letter with enclosures dated June 25, 2003 and addressed to Wayne Fournier, Frye Island Town Manager. The Letter outlined planned discussion points Mr. Byrnes wished to cover during the hearing. Key points referenced in the letter are summarized as follows:
The complete letter with attachments was entered as part of the record and is available for review.
Mr. Fletcher introduced Ed Byrnes, the husband of the applicant. Ed Byrnes explained that he was one of the original residents of Frye Island, served on many committees over many years and served the Island as best he could. It was never his intent not to comply with requirements of building standards. He hired a reputable architect and contractor to design and build the original cottage on lot 43 and the so called “Tree House” on lot 44. He stated that he had relied on the contractor to assure that all the required permits were obtained and that construction would follow the permits. He stated that his original intent was that the tree house on lot 44 be able to stand alone as a single family residence and that it was constructed that way from the beginning, including a kitchen area. Donald Theriault was the contractor and John H. Leisure was the architect. A written statement from John Leisure was entered into evidence stating that the “tree house” on lot 44 “was specifically designed as a separate residence to provide independent living. The structure itself was designed to include, among other things, a bedroom, bathroom, kitchen and laundry facilities”. In his comments Mr. Byrnes stated that the kitchen also included a dishwasher and garbage disposal – “all the features one would expect in a normal kitchen”.
Ernie Wrzesinsky asked why the plumbing permit did not include the dishwasher and garbage disposal and if there is another document available because the documents we have are confusing and apparently inaccurate. He also asked if an actual building permit for lot 44 was available.
Mr. Fletcher responded that they provided all the documents they could locate in town records.
Dick Norris, Lot 61, a member of a review team updating Frye Island Zoning and Land Use Ordinances, stated that it was his memory that The Town of Standish in 1976 passed bylaws that any two contiguous non-conforming lots, substandard in size, under single or joint ownership, must be combined, and therefore, that lots 43 and 44 could not be sold separately. The lots would have been combined at that time. However, the Standish Ordinances were reviewed by Mr. Norris during the meeting and the pertinent section was not located during the meeting.
Don Hadley, Lot 174, stated that the structure on Lot 44 is 55’ from the high water mark and therefore did require a variance.
James Kuiken, Lot 323, submitted into evidence an original drawing showing the layout of the tree house (the building on Lot 44). Jim stated that he installed the wiring in the structure, but none for a kitchen. There was no kitchen shown in the original drawing. The Board reviewed the drawing and notations were made on the drawing indicating that it was accepted into evidence. As stated by Mr. Kuiken, the Board members could not find evidence of a kitchen in the plans.
Mr. Byrnes and Mr. Fletcher said that the area shown as a bar in the print is actually the kitchen.
Board members Ernie Wrzesinsky and Paul Lyons stated that if the original intent were for the Lot 44 tree house to be a stand alone single family residence it would have had its own septic system and would not be just one foot from the Lots 43 and 44 common boundary. They also questioned the legality of having two structures on the same septic system.
Jim Kuiken recommended that Lots 43 and 44 be allowed to be sold separately because it was in the best interest of the Town.
Bruce Nisula stated that the Board was constrained to follow the law in considering the Administrative Appeal before it, regardless of any perceived benefit to the Town.
Marge Hommel, of Lot 68, stated that she could not find the minimum lot size requirement in the Standish ordinance.
The Board requested documentation of the application submitted to Standish. Mr. Fletcher stated, “We do not know what was submitted to the town”.
Bill Foye, Code Enforcement Officer for Frye Island suggested the Board consider a consent agreement to transfer the matter back to the selectmen for resolution. He stated that the economic impact on the Byrnes family would be very heavy and suggested that an accommodation to the family could be made. They have not been able to sell the property as one piece, but they have potential buyers if the lots were divided.
Bruce Nisula submitted the following Finding of Facts for consideration by the Board:
FINDINGS OF FACT
1. The owner of the property is Carmen B. Byrnes. Book 3688 Page 108, Registry of Deeds, Cumberland County, Maine, records a Quitclaim Deed in which Edward J. Byrnes on May 21, 1975 conveyed to Carmen B. Byrnes title to Lot 43 and Lot 44 on plan entitled "Land in Standish Maine, owned by Sebago Lake Shores…"
2. The property, comprised of contiguous Lots 43 and 44, is located in the Residential District, Shoreland Zone.
3. The applicant is owner.
4. The land is being used as residential property.
5. On May 21, 1975, Lot 43 and Lot 44 were separate lots in a single ownership in the Town of Standish.
6. On September 26, 1983, the Standish Board of Appeals approved a variance for "Lot 43&44 Frye Island" which allowed Byrnes "to construct a 30'X36' Seasonal bedroom within the 75' setback required from the water and 8' X 25' addition to bedroom and bath on house."
7. The application for variance, dated September 8, 1983, states the proposed use of the building to be as a "Bedroom and bath".
8. Plumbing Permit #490, dated May 31, 1985, approves as follows: "Hook-up to an existing subsurface wastewater disposal system".
9. Standish's "Land Use" ordinance states in Section 181-53 as follows: "Building Permits. No building, improvement or other structure shall be installed or erected, moved, added to, or structurally altered without a permit therefor issued by the Code Enforcement Officer;" and in Section 181-55 as follows: "It shall be unlawful to use or occupy or permit the use or occupancy of any building or premises, or both, or part thereof, hereafter created, erected, changed, converted or wholly or partly altered or enlarged in its use or structure until a certificate of occupancy shall have been issued therefor by the Code Enforcement Officer…" The identical language exists in the Frye Island Land Use Ordinances.
10. Standish's "Land Use" ordinance states in Section 181-3 as follows: "ACCESSORY BUILDING-- A subordinate building incidental to and located on the same lot with the main building which is customarily a garage, workshop, bunkhouse, and the like."
11. On July 1, 1998, Frye Island separated from Standish and became its own Town.
12. In October 2000, Frye Island adopted 101-I-3(A)(6) which states, " Minimum lot size (minimum area per family) shall be as follows: 1.) Area: forty thousand (40,000) square feet without public water; twenty thousand (20,000) square feet with public water."
13. A relevant section of the Frye Island Ordinance is as follows: 101-I-4(D)(2)(b), which states, "Contiguous lots, vacant or partially built. If two (2) or more contiguous lots (i.e. lots which share a common property line) or parcels are in a single or joint ownership of record as of May 26, 1976, and if any of these lots do not individually meet the dimensional requirements of this Ordinance or subsequent amendments, and if one (1) or more of the lots are vacant or contain(s) only an accessory building, the lots shall be combined to the extent necessary to meet all dimensional requirements. This subsection is intended to apply to all lots, whether shown on a recorded plan or not. It is specifically intended that this provision can require the merger of improved lots with unimproved lots and is not limited to merging unimproved lots only. Lots which were separately improved prior to enactment of the Frye Island Zoning Ordinance shall not be merged."
14. A relevant section of the Ordinance is as follows: 101-III-7, which states, "Whenever a provision of this Ordinance conflicts with or is inconsistent with another provision of this ordinance or of any other ordinance, regulation, or statute, the more restrictive provision shall control."
15. A relevant section of the Ordinance is as follows: 101-III-12(E)(3), which states, "Contiguous Lots Vacant or Partially Built.
a. Two (2) or more contiguous lots or parcels or parcels shall be combined to the extent necessary to meet the dimensional requirements if all of the following conditions apply: i. They are in single or joint ownership of record at the time of or since adoption or amendment of this Ordinance. ii. Any of these lots do not individually meet the dimensional requirements of this Ordinance or subsequent amendments. iii. One (1) or more of the lots are vacant or contain no principal structure."
16. In a letter dated October 15, 2002, William M. Fletcher representing the owner, requested "a letter from the Town indicating its agreement that the lots may be separately sold in accordance with applicable zoning." In a letter dated October 24, 2002, W. H. Foye, the CEO, found "that if the ownership of Lots 43 and 44 is split, a violation of the Ordinances would result and Lot 44 could no longer be occupied. "
17. In a letter dated November 22, 2002, William M. Fletcher, on behalf of the owner, requested an appeal of that decision, and expressed the hope that "the Board will …approve the sale of Lot 43 and Lot 44 as separate residential lots".
18. A Survey Plan of Lot 43 and Lot 44 Frye Island, compiled by Main-Land Development Consultants and dated November 2002, shows the southeast corner of the structure on Lot 44 closely abutting Lot 43. A second part of this two (2) part current application requests a variance from the side setback requirement for a building on Lot 44 from Lot 43.
19. The applicant makes an Administrative Appeal of a decision of the Code Enforcement Officer in which the applicant contends that the CEO's decision was based on a misinterpretation of the Ordinances.
20. An application dated February 6, 2003, was completed and submitted to the Town May 13, 2003.
21. A public hearing was held on June 27, 2003.
22. A relevant Maine State Statute (1973) is as follows: "4807-A. Minimum lot size required. In all areas of the State, notwithstanding any other provision of sate or local law or regulation, no person shall: 1) Dispose of waste from any single family residential unit by means of subsurface waste disposal unless such lot of land on which such single family residential unit is located contains at least 20,000 square feet; and if the lots abuts a lake, pond, stream, river or tidal area, it shall further have a minimum frontage of 100 feet on such body of water;"
23. A letter, dated October 8, 2002, from the Department of Human Services, State of Maine, approves Byrnes application for a waiver to the Minimum Lot Size Law for Lot 44. The proposal is to construct an onsite wastewater disposal system to serve an existing three-bedroom single family residence on the parcel. However, there is no residence with three bedrooms on the parcel; so there appears to be some confusion on the part of the Department about the situation. Further, the Department indicates that 12 MRSA 4807-B was the "sole basis" for review; apparently, in that decision they did not consider 4807-D which states "that contiguous lots in the same ownership on or after October 3, 1973 shall be considered as one lot for the purposes hereof". Also, the position of the Department with respect to Lot 43 is not in evidence.
24. Other relevant facts include the following: Jim Kuikin the electrical contractor for the building gave testimony that the original building had no kitchen, and presented an original plan dated 6-14-85, which shows no kitchen.
25. The plumbing permit does not indicate approval for a dishwasher or garbage disposal.
It was moved and
seconded that the above findings of Fact be accepted.
Bruce Nisula submitted the following Conclusions for consideration by the Board:
Based upon the above stated facts and the provisions of the ordinance cited, the Board concludes as follows:
Applicant asserts (see lawyer's letter of November 22, 2002) that "We do not believe that the Standish zoning now applies to Lot 43 or Lot 44, nor does the Frye Island zoning appear to contain any mention of the applicability of the Town of Standish zoning to Frye Island property." The Board does not subscribe to applicant's belief as described in the foregoing statement, and makes the following clarification of its position on the applicability of Standish zoning laws with respect to property on Frye Island: Prior to July 1, 1998, when the Town of Frye Island came into existence, the applicable zoning laws were those of Standish. Something which was unlawful on June 30, 1998, under Standish zoning law and has been unlawful from July 1, 1998, until the present under Frye Island zoning law, is presently unlawful; it is not "non-conforming". On the other hand, something which was lawful on June 30, 1998, and has been unlawful from July 1, 1998, until the present, is presently non-conforming. In arriving at this position, the Board relies on the The Frye Island Land Use Ordinances, which have the following definitions: 1) "Non-conforming Building, Lot, or Structure: A building, lot or structure, the size dimension or location of which was lawful prior to the adoption or amendment of these zoning provisions but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption or amendment. 2) Non-conforming Use: A land use which was lawful prior to the adoption or amendment of these zoning provisions but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption or amendment." The key words are "lawful prior to the adoption… of these zoning provisions".
The Board assumes for the purposes of this Administrative Appeal that the building located on Lot 43 is a legal dwelling unit. The application states that both the building on Lot 44 and that on Lot 43 are homes being used for residential purposes, that is, dwelling units. The fact that they are both being used as dwelling units does not necessarily mean that both were legally constructed as dwelling units. A critical factor in the Board's final conclusion on this Administrative Appeal is its determination of the status of the building on Lot 44; that is, was it constructed as a legal dwelling unit? Four considerations bear on the Board's decision as follows: 1) A substantial fact against the building on Lot 44 having been constructed as a legal dwelling unit is the applicant's failure to present to the Board permits, waivers, and certificates of occupancy showing that the building was legally constructed as a dwelling unit. On the contrary, the permit and variance information presented by the applicant support the conclusion that the building on Lot 44 was approved and permitted to be used as a "Bedroom and bath," and as such, a legal accessory building to the adjacent dwelling unit. The Board notes that Standish defines "bunkhouse and the like" as accessory buildings, and deduces that a "bedroom and bath" is a legal accessory building. Also, a structure that constitutes a legal accessory building, which contains an extra bedroom and bath for an existing dwelling, cannot be legally converted to a dwelling unit without complying with various ordinances, not to mention with 12 MRSA 4807-A through D. The Board is presented no permits, waivers, and certificates of occupancy showing that the building was legally changed from an accessory building containing a bedroom and a bath to a dwelling unit. To sum this point, the Board does not find sufficient documentation to allow a conclusion that the building on Lot 44 was constructed as a legal dwelling unit. 2) Another significant fact against its having been legally constructed as a dwelling unit is that a separate subsurface waste disposal system was not installed on Lot 44 to handle the wastes from that structure when it was constructed in 1985, and one has not been installed since. Section 4807-A requires minimum water frontage of 100 ft and area of at least 20,000 s.f. for the lot on which a single family residential unit is located, whereas Lot 44 has only 90 ft water frontage and only about 15,500 s.f. of area. Not only was no separate subsurface wastewater disposal system installed, but approval of the use of the system on Lot 43 by a residential unit on Lot 44 in writing from the Maine State Department of Human Services prior to occupancy of the building on Lot 44 in 1985 is not in evidence. For example, the Board finds no evidence of approval in writing from the Department of Human Services, as required in Section 4807-B, that multiple unit housing on different lots may dispose of wastes by means of the single subsurface wastewater disposal system on a single non-conforming lot; and no evidence of some sort of waiver from Section 4807-D which provides "that contiguous lots in the same ownership on or after October 3, 1973 shall be considered as one lot for the purposes hereof." In short, the existence of a single family residential unit on Lot 44 in violation of Maine Minimum Lot Size Law is evidence against the building having been lawfully constructed as a dwelling unit. 3) Another significant fact indicating that it is not a legal dwelling unit is that the Standish Board of Appeals considered and granted a variance from the water setback requirement, but none from the side setback requirement, when it permitted construction of the building. Clearly, the fact that the building was constructed within a foot or so of the property line between Lot 43 and Lot 44 would have been a non-issue with respect to the side setback for merged lots with an accessory building. In any event, viewed as a separate dwelling unit on its own parcel, the dwelling unit has been and is now illegal since it violates the side setback requirement. 4) A substantial fact against a dwelling unit is the building plan dated 6-14-85 that shows no kitchen, and the plumbing permit does not indicate approval for a dishwasher or garbage disposal. Collectively, the above findings of fact lead the Board to the conclusion that the building on Lot 44 is not a legal dwelling unit, but rather that it is a legal accessory building.
The Board's interpretation of the apparently conflicting parts of 101-I-4(D)(2)(b), which states, "Lots which were separately improved prior to enactment of the Frye Island Zoning Ordinance shall not be merged" is made based on the following: 1) The instruction provided in the Ordinance under : 101-III-7, which states, "Whenever a provision of this Ordinance conflicts with or is inconsistent with another provision of this ordinance or of any other ordinance, regulation, or statute, the more restrictive provision shall control;" and 2) The general ordinance interpretation rule that the drafter would not have included a provision that clearly was inconsistent with the foregoing section. Thus, the Board concludes that the intended meaning of the term "separately improved" does not extend to only "an accessory building", and accordingly that merging the lots is not prohibited.
In October 2000, Frye Island adopted 101-I-3(A)(6) which states, " Minimum lot size (minimum area per family) shall be as follows: 1.) Area: forty thousand (40,000) square feet without public water; twenty thousand (20,000) square feet with public water." Lots 43 and 44, one with a dwelling unit and the other with an accessory building, merged based on the Frye Island Ordinances. The relevant Frye Island Ordinance is as follows: 101-I-4(D)(2)(b), which states, "Contiguous lots, vacant or partially built. If two (2) or more contiguous lots (i.e. lots which share a common property line) or parcels are in a single or joint ownership of record as of May 26, 1976, and if any of these lots do not individually meet the dimensional requirements of this Ordinance or subsequent amendments, and if one (1) or more of the lots are vacant or contain(s) only an accessory building, the lots shall be combined to the extent necessary to meet all dimensional requirements."
In summary, the Board concludes that the building on Lot 44 is not a legal dwelling unit, and finds that it is a legal accessory building, subordinate to the dwelling unit on the merged parcel, comprised of Lots 43 and 44. The Board recognizes that the merged parcel is a conforming lot for the dimensional purposes of 12 MRSA 4807-A and of the Land Use Ordinances of the Town of Frye Island, which conforming lot satisfies the minimum lot size requirement for only one family dwelling. With respect to the Variance Application, the Board concludes that the position of the accessory building on merged Lot 43/44 is such that the building does not violate a side setback requirement, and therefore no variance of the side setback requirement is required for the building as it is positioned.
It was moved and
seconded that the above Conclusions be accepted.
It was moved and seconded that the Board DENY the Application For Administrative Appeal and that the Chairman advise the applicant by Notice of Administrative Appeal Decision which the Chairman read into the record. APPROVED UNANIMOUSLY
H. CORRESPONDENCE AND ANNOUNCEMENTS:
1. Future meeting dates as follows:
July 25, 2003
August 22, 2003
September 19, 2003
I. ADJOURNMENT: A motion was made and seconded to adjourn the meeting at 9:45 PM.
Above Minutes approved at Meeting of July 25, 2003.
Secretary, Board of Appeals
FIBA Minutes 6-27-03