TOWN OF FRYE ISLAND

BOARD OF APPEALS

MINUTES OF MEETING OF SEPTEMBER 24, 2004

 Meeting was called to order at 7:00 p.m.

 Present were John Gardner, Bobbie Aranyi, Tim McCarthy and Ernie Wrzesinsky, absent was Rich Kaplan.

 Chairman Wrzesinsky read opening remarks relative to the conduct of the meeting.
 

 FINNEGAN VARIANCE:

 This variance request pertains to Lot 1982, High Point Drive, Frye Island and was filed by Warren Finnegan.  The property is owned by Warren Finnegan and Jeffrey Pomeroy.  The nature of the variance is a request for a variance of 4 feet 8 inches from the 50 foot front yard setback required for a residence in a residential district.

 Mr. Finnegan and Mr. Pomeroy stated that they have substantially completed the house, that they are builders and have built the house to sell.  Mr. Finnegan advised that they learned of the setback error as the result of an inspection by the Androscoggin Savings Bank while the bank was doing a mortgage inspection.  He also stated that they did not measure for the setback because the road is curved in front of the house and that they had no survey done to work from.  Mr. Finnegan asked the CEO how he would determine the setback and Mr. White advised, by tape and string working from a survey.

 At this point the Chairman asked the applicants if they would like to request a postponement of their case so that they may have a survey done as it may show that they do not need a variance.  After a general discussion of this matter they elected to ask for the continuance.  On a motion by Mr. Gardner and a second by Mrs. Aranyi the board voted 4 for and 0 against to allow a postponement to the October 8, 2004 meeting.

ROBERTS/BROOKS-GOYNER VARIANCE:

 This variance request pertains to Lot 24, Leisure Lane, Frye Island and was filed by Robert Roberts.  The property is owner by Robert & Janet Roberts and George & MaryAnn Brooks-Gonyer.  The nature of the variance request is to divide Lot 24, a non-conforming lot (less then 20,000 sq. ft.) into 2 smaller non-conforming lots.  The lot is in a residential and Shoreland zone.  Mr. Roberts presented the board with a letter from George & MaryAnn Brooks-Gonyer advising that he could represent them.

Mr. Roberts provided the following information to the board.  That they purchased the property in 1994 from Frye Island Incorporated as a privacy lot.  Note (FII is a private corporation made up of the property owners on Frye Island and it owns a large amount of lots on the island).  He had spoken with the Frye Island Manager, Vic Richards, and the Standish Building Inspector, Mr. Thompson, (at that time Frye Island was a part of the Town of Standish) after they bought the lot and both advised him that they could subdivide it.

Submitted with their application was Warranty Deed in the name of both applicants.  Also attached were two warranty deeds, one in the Brooks-Gonyer name and giving them the northern half of lot 24 and merging it with lot 25 which they own and abuts lot 24 and another in the  Roberts name giving them the southern half of lot 24 and merging it with lot 111.  It was pointed out by the board that Ordinance 101-III-15, A, 5 states that “Lots located on opposite sides of a public or private road shall be considered each a separate tract or parcel” therefore not allowing them to be merged.

Mr. Roberts advised that both the Town of Standish and the Town of Frye Island issued separate tax bills for each half for the past 10 years.  The board noted that the Land Use Map of Frye Island, dated 9-7-01, shows lot 24 as 2 lots numbered lot 3001 & 3002.  He also advised that lot 18 had been sold to 2 abutters on each side in 2002 with 2 separate deeds and presented a copy of one of the deeds.  The board noted that Ordinance 101-III-12, A, allows new lots in the Shoreland Zone with a variance.
 

CONCLUSIONS:

Mr. Robert’s answers to the Undue Hardship requirements are as follows:

A.  The land in question cannot yield a reasonable return unless the variance is granted.

“In our case, the land cannot be sold unless both parties agree.  (One party cannot sell its half interest in the property without consent of the other) In this case there is no return let alone a reasonable one.  The Roberts have installed a dock off their half of the lot and have always encouraged the Brooks-Gonyers to use it.  With different owners this might not be the case and the waterfront access the Roberts bought might not be available to them.  Neither party controls their own destiny unless the lot is split that was always to be and treated this way by the previous and current town is in place by deed. The property has no value to others not wanting to achieve the same goals as the current owners”.

On a motion by Mrs. Aranyi and seconded by Mr. McCarthy the board voted 4 to 0 to accept A.

At this point Joe Potts, President of FII, spoke about deed covenant and how FII can choose to enforce or not enforce them.

B.  The need for a variance is due to the unique circumstances of the property and not the general conditions of the neighborhood.

“The unique circumstances of the property are that it is deeded as a privacy lot and by deed is unbuild able.  It can only be used in the manner we use it for, access to the lake for which we have paid and continue to pay dearly”.

On a motion by Mr. Gardner and a second by Mrs. Aranyi the board voted 4 to 0 to accept B.

C.  The granting of a variance will not alter the essential character of the locality.

“Nothing will or can be altered.  Nothing has or will change.  Two similar sized properties (lots 507 & 504) exist on the west side of Beach 3 which is adjacent to lot 25, one with a cottage on it and the other with a small building which was used as a changing house and sleeping quarters when the cottage on lot 507 was being built”.

On a motion by Mrs. Aranyi and a second by Mr. Gardner the board voted 4 to 0 to accept C.

D.  The hardship is not the result of action taken by the appellant or a previous owner.

“The hardship is created by Frye Island becoming a Town or by Personnel change and not any action of the appellant since we had previous permission to do this”.

 

Paul White, the CEO, commented as to permission to split the lots.  Reference was made to

Mr. Richards and Mr. Thompson giving approval, that separate tax bills have always been issued and that the Land Use Map, dated 9-7-01 shows the property as 2 lots, numbers 3001 & 3002 and the maps are made from the town records.

Marge Hommel asked if Standish billed separately and Mr. Roberts replied that they did since 1994.

Dave Treacy asked who the prior owners were?  The deed prior to the two separate deeds was the Roberts and the Brooks-Goyner deed, they appear to be the prior owners.  Prior to that it was Frye Island Incorporated.

The board discussed the issue of the FII deed covenants and what might happen if FII did not enforce them.  As a result the board decided to put conditions on the variance if the Board votes to approve the variance.

On motion by Mr. Gardner and second by Mrs. Aranyi the board voted 4 to 0 to accept D.

The board determined the following as its finding of facts in this matter:

1.  Two town governments have taxed and assessed this property as 2 lots for the past 10 years.

2.  The Town of Frye Island has labeled this property as lots 3001 & 3002.

3.  They are treated as 2 lots on town maps.

4.  Town Ordinances allow for a variance to be issued.

On a motion by Mrs. Aranyi and a second by Mr. Gardner the board voted 4 for and 0 against to approve these conclusions.

Decision:

On the basis of the facts and conclusions the Board of Appeals voted by vote of four (4) for and zero (0) against to grant this variance and by a vote of four (4) for and zero (0) to attach the following Conditions of Approval.

1.  The Roberts part of lot 24 (lot 3002) can only be sold with lot 111, or the abutter at lot 23, but can not be merged with lot 111.

2.  No structure shall be erected on this property except for a dock.

 

NOTE: Jim Kuiken asked if these conditions where not similar to the FII deed conditions.  The Chair answered that they were, but should FII not enforce their conditions the Town of Frye Island would have standing now.
 

MARKOSKI ADMINISTRATIVE APPEAL

This appeal pertains to Lot 3036, Emerald Point Drive, Frye Island and was filed By Joseph Markowski.  The property is owned by Joseph & Julie Markoski.  The nature of the appeal is a decision by the Code Enforcement Official regarding stair treads and risers that do not conform to the Town of Frye Island Building Code (International Residential Code) Sections R314.2 and R314.4.

 Mr. Markoski stated that he had just completed the house at lot 3036 and the CEO has a problem with the risers and treads on three steps.  That the steps can not comply with the code without extensive and costly changes to the house.  He also said that he was not notified until the house was finished, that he and his wife will be living in the house so no on else would be in danger, that the steps were 44 inches wide where the code requires 36 inches and the architect has suggested he put an inside handrail.

 Paul White, CEO advised that he had told the builder, a Mr. Meyers, while the stairs were being built that they did not met code.  Mr. Meyers said he would fix the stairs if the owner said so.  Mr. White said the stairs were not safe because of improper tread width and riser height.  Mr. White gave the board a letter, dated July 26, 2004, sent to him by Mr. Meyers.  This letter states,      “Use this letter as notice that we understand at this point that the stairs going to the 2nd floor of     the home doesn’t meet the town code.  We will fix stairs to meet the code if the owner wants it     done after they move out at the end of the season.  This would take place some time in the     month of September”.  It was signed by Michael Meyers.   

Mr. White said he had several conversation with Mr. Markowski and several deadlines had passed but no correction was done.

 

CONCLUSIONS:

 Mr. Markowski also asked in his application for a Special Exception in this matter. 

 The Chairman advised Mr. Markoski the Town of Frye Island Ordinance Chapter 101-I-14.C.1.b allows special exceptions only in Zoning matters.

Based on the above stated facts and the provisions of the cited sections of the Building Code of the Town of Frye Island the Board concludes that the stairway as constructed does not conform to the Town of Frye Island Building Code.  That the Code Enforcement Officer advised the Builder while construction of the stairs was taking place and the stairs have not been brought up to code.  The owner, Mr. Markowski, had also been notified by letter.

 

DECISION

Based on the findings of fact and conclusions , the Board of Appeals voted 4 to 0 to deny your application for an administrative appeal and to uphold the decision of the Code Enforcement Officer.  If you are unhappy with this decision you may file an appeal in the Superior Court within 45 days of the date of this decision.
 

REALI ADMINISTRATIVE APPEAL

This appeal pertains to Lot 278, Leisure Lane, Frye Island and was filed by Frank Reali.  The property is owner by Frank & Carmela Reali.  The nature of the appeal is a decision by the Code Enforcement Official not to issue a building permit based on the original building permit having expired in 1993 and a new one can not be issued because the setback from the water is now 100 feet, whereas the original foundation was built when the setback was 75 feet.

 Mr. Reali stated that he had a permit in 1992 to build And that he put in a foundation and concrete tubes, a septic holding tank and a pump box.  He advised that he ran out of funds to continue and stopped building in 1992.  That he always payed taxes on the structure. 

 He was asked by the Chair why he felt he would be granted a permit and who told him so.  He answered that Vic Richards, former Frye Island Manager, Mr. Thompson, former Standish CEO and Bill Foy, former Frye Island CEO had told him there would be no problem. 

 Paul White, Frye Island CEO, advised that he has contact DEP and they advised that the foundation has to be moved.

 Mr. Roberts gave the opinion that it would protect the lake if he did not have to move the foundation back to 100 feet.

 Paul White read Ordinance Chapter 101-I-7.B.2  Abandonment, “A non-conforming use of a building, structure or land which has been abandoned shall not thereafter be resumed.  A non-conforming use shall be considered abandoned if any one of the following conditions apply: 2.  It has been discontinued for a period of one (1) year”. He also read Chapter 101-I-11.D.3.a  “The building permit shall be valid for two (2) years from the date of issue.  a.  If construction has not been completed within the twenty-four (24) month period, the permit shall become null and void”.

 Mr. Vande Hei, an abutter at Lot 277, said Mr. Reali has allowed trees to fall on his property and do damage and has not paid attention to the shore.  He gave the board 3 pictures showing erosion.  That he had no objection if he built as long as he installed rip/rap and could not put the deck on.

 Paul White, CEO, said that his measurement of the property shows the foundation as being 84' from the high water mark and the columns being 75 feet.

Mr. Vande Hei questioned where the measurement was taken from as he did not feel it was the real high water mark and also that since 1992 the erosion has moved this mark closer to the foundation.

The Chair noted that there were two plot plans submitted with the application, showing two different high water marks.

 

CONCLUSION

Based on the above stated facts and the provisions of the cited sections of the Ordinances of the Town of Frye Island the board concludes that the foundation that was constructed some 11 years ago is abandoned and that a new Building Permit is required.

 

DECISION

Based on the above findings of fact and conclusions, the Board of Appeals voted 4 for and none against to deny your application for an administrative appeal and to uphold the decision of the Code Enforcement Officer.  If you are unhappy with this decision you may file an appeal in the Superior Court within 45 days of the date of this decision.

 

REALI  VARIANCE

 This variance request retains to Lot 278, Leisure Lane, Frye Island and was filed by Frank Reali.  The property is owned by Frank & Carmela Reali as shown in a deed, dated July 10, 1984.  The nature of the variance request is to allow the construction of a structure on an existing foundation of 28 feet by 40 feet and a 10 foot deck on existing concrete tubes that are 10 feet closer to the lake.  This is within the 100 foot setback requirement of the Shorefront Zone.  The foundation was constructed by the applicant when the setback was 75 feet and has been abandoned for some 11 years. He is seeking a variance of 16 feet.

 Mr. Reali stated in a previous administrative appeal the following;  Mr. Reali stated that he had a permit in 1992 to build And that he put in a foundation and concrete tubes, a septic holding tank and a pump box.  He advised that he ran out of funds to continue and stopped building in 1992.  That he always payed taxes on the structure.  He was asked by the Chair why he felt he would be granted a permit and who told so.  He answered that Vic Richards, former Frye Island Manager, Mr. Thompson, former Standish CEO and Bill Foy, former Frye Island CEO had told him there would be no problem.

 A discussion was held concerning the actual distance the foundation and concrete tubes are from the high water mark.  As the applicant had submitted two plot plans for lot 278, showing two different measurements, the Chair asked Mr. Reali if he would like to request a continuance to the October 8, 2004 meeting to allow him to have a surveyor determine the actual distance.

 Mr. Reali requested this continuance and a motion by Mrs. Aranyi and a second by Mr. Gardner the board voted 4 for and 0 against to grant the continuance.

 

OTHER BUSINESS:

The board by unanimous vote approved the minutes of the June 25, 2004 meeting.

The board by unanimous vote approved the minutes of the September 3, 2004 workshop.

On a motion by Mr. Gardner and a second by Mrs. Aranyi the board cast a unanimous vote to adjourn at 11:45 p.m.

 

Submitted by:

 

Ernest Wrzesinsky, Chairman