TOWN OF FRYE ISLAND
BOARD OF APPEALS
MINUTES OF OCTOBER, 8 2004 MEETING
Meeting called to order at 7:10 p.m.
In attendance: Bobbie Aranyi, John Gardner, Rich Kaplan, Tim McCarthy & Ernie Wrzesinsky.
Minutes of the meeting of September 24, 2004 were approved, with corrections, by unanimous vote.
The Board approved, by unanimous vote the following meeting schedule for 2005:
May 27, 2005
June 24, 2005
July 22, 2005
August 19, 2005
September 23, 2005
October 7, 2005
The Board postponed selection of a secretary until the May 27, 2005 meeting, while looking to fill the vacant Alternate Member position at the same time. If no applicant is found, will discuss with Town Manager the hiring of a secretary.
The PALLI Administration Appeal was heard:
This is an appeal of the decision by the Code Enforcement Officer to deny a Building Permit to Mr. Palli due to his having allowed his Growth Permit to expire.
Mr. Palli stated that this was all a misunderstanding, that the CEO is hard to contact because he only works two days a week. He and the CEO had exchanged faxes for a month and a half because the CEO gave Mr. Palli leeway after the expiration date of July 11, 2004. When Mr. Palli had all the information for the Building Permit and a check ready the CEO found out there was a realtor involved and the process broke down.
Mr. Gardner asked if Mr. Palli had applied for the Growth Permit, and he answered no, that it went with the property when he bought it.
Mrs. Aranyi asked when the Growth Permit was issued and the CEO, Paul White, advised it was issued on October 11, 2003 and it expired on July 11, 2004, and that he granted Mr. Palli an extension of one week to apply for a Building Permit.
Mr. Kaplan stated that the letter of the law is our guide and all the dates show no compliance
Mr. Palli advised that he was taken back by the $2,000 fee for a permit, that he has been buying and selling real estate for many years.
Mrs. Aranyi asked how Mr. Palli knew of the problem and the CEO advised that he spoke on the phone with Mr. Palli and exchanged faxes with him, but never got the information needed for a Building Permit.
Mr. Wrzesinsky asked Mr. Palli if he ever met with the CEO and he answered that he had not.
Mr. McCarthy read Town of Frye Island Growth Management Ordinance 101-V-15, Appeals whose last sentence states, “the Board of Appeals may reverse the decision of the Code Enforcement Officer only upon a finding that the decision is clearly contrary to the specific provisions of this ordinance”.
Mr. Palli stated that he should not be penalized because the CEO only works two days a week..
Mr. Kaplan asked the CEO if the realtor issue could have been an issue and the CEO stated that it was possible, but he can not definitely say.
Mr. McCarthy asked if specifications are required on a Building Permit and the CEO answered that they are, that he contacted Mr. Palli on this but never got floor plans.
Mr. Wrzesinsky stated that the CEO allowed almost two months, after the Growth Permit expired for the applicant to obtain a Building Permit, and that he went out of his way in doing this.
Mr. McCarthy made a motion to deny Mr. Palli appeal, based on the requirements of the Growth Ordinance procedure to obtain a Building Permit, and it was seconded by Mr. Kaplan.
On a vote of five (5) to zero (0) the motion passed.
The FINNEGAN request for a variance was continued from the September 24, 2004 meeting. Mr. Kaplan had not attended the September meeting and announced he would abstain from voting.
The September hearing was continued to allow Mr. Finnegan the opportunity to obtain a survey showing the accurate location of the house on Lot 1982.
Mr. Finnegan presented a October 7, 2004 survey made by Land Services Inc. of Raymond which placed the north west corner of the house at 44 feet from the front property line. This would require a variance of 6 feet to the front yard setback.
Mr Finnegan read a statement into the record in which he stated that his actions regarding the setback was in reliance to Line 4 of the “INSTRUCTIONS FOR APPLYING FOR A PERMIT-TOWN OF FRYE ISLAND” which was given to him by the CEO. This instruction states, “Setback measurements will be verified on the site by the Code Officer prior to the issuance of the building permit”.
14. The applicant provided the following financial data; they have sold the house for $239,000, their costs are $204,000 so far and it will cost $46,800 to move the house, resulting in a total cost of $250,800. This is a loss of $11,800 on the sale.
The Board discussed item #4 of the Building Permit Application and that it requires the CEO to determine the setbacks. The CEO advised he would have issued a CO if the bank had not found the problem because the previous CEO (Mr. Foy) must have been satisfied that it met the setback because he issued the Building Permit.
Based upon the facts stated above the Board concludes that:
1. The applicant has shown that strict application of the ordinance to the applicant and the applicant’s property would cause undue hardship:
A. The land in question can not yield a reasonable return unless a variance is granted: The applicant provided evidence that correcting the front yard set back will not allow for a reasonable return but rather a loss of $11,800.
B. The need for a variance is due to the unique circumstances of the property and not the general conditions in the neighborhood as all lot in this area are square or rectangular while this lot is shallow with a curved road frontage.
C. The granting of a variance will not alter the essential character of the locality as this is a residential zone.
D. The hardship is not the result of action taken by the applicant or a prior owner but rather the failure of the Previous CEO to measure the setback as required in the Application for the Building Permit.
Mr. Gardner made the following motion:
That the Applicant has met the four part Hardship Test. The fact that a permit was issued by the previous CEO indicates that item 4 of the Building Permit was satisfied. Therefore the Applicant proceeded in, good faith, with construction. Mrs. Aranyi seconded this motion.
By a vote of four (4) to zero (0) the Board approved this motion.
On the basis of the above Finding of Fact and Conclusions, the Board of Appeals voted by a vote of four (4) to zero (0) to approve the application for variance.
The REALI request for a variance was continued from the September 24, 2004 meeting. Mr. Kaplan had not attended the September meeting and announced he would abstain from voting.
Mr. Reali presented a October 7, 2004 letter from Land Services Inc. of Raymond which placed the north corner of the foundation 86.3 feet from the high water mark and the south corner 89.1 feet from the high water mark. The sona-tubes being ten feet closer.
The CEO, Paul White, presented a copy of the Department of Environmental Protection, Guidelines for Municipal Shoreland Zoning Ordinances, Chapter 1000, which defines a Structure as; “anything built for the support, shelter or enclosure of persons, animals, goods or property of any kind, together with anything constructed or erected with a fixed location on or in the ground, exclusive of fences. The term includes structures temporarily or permanently located, such as decks and satellite dishes”.
Paul White, CEO, advised that this means that this foundation is a structure. He also advised that this is consistent with what our Ordinances say. Ordinance 101-III-D,17 includes the same wording as the DEP definition.
The Board believes the applicant has a structure based upon its (the Board) interpretation of the Ordinance and the DEP Guidelines definition of a structure. Based upon the prior sentence the Board does not believe a variance is needed.
On a motion by Mr. McCarthy and a second by Mr. Gardner the Board voted of four (4) to zero (0) to confirmed its conclusion that no variance is needed in this matter.
The meeting was adjourned at 9:55 p.m.
Submitted by Ernest Wrzesinsky, Chairman.