TOWN OF FRYE ISLAND
BOARD OF APPEALS
MINUTES OF MEETING OF SEPTEMBER 23, 2005
Meeting Called to order at 7:00 p.m.
Present were E. Wrzesinsky, B. Aranyi, r. kaplan, T. McCarthy and CEO P. White.
Unable to attend was J. Gardner.
1 B. Aranyi moved the minutes of the August 19, 2005 meeting. Seconded by T. McCarthy and unanimously approved .
2. Chairman Wrzesinsky advised the Board and those in attendance that the meting will adjourn at 10:00 p.m. Any matters not heard by then will be carried over to the October 7, 2005 meeting.
3. The Toomey Undue Hardship Variance was heard.
Mr. Toomey was represented by Mr. Gregory Cunningham of Bernstein Shur.
Mr. Toomey presented a property survey prepared by Main-Land Development Consultants for Lot 225.
Mr. Toomey presented a historical record of the high water measurements of Sebago Lake.
Mr. Toomey presented an ariel photograph of Frye Island showing the position of adjacent homes.
Mr. Toomey reduced the size of the home from 28 feet by 38 feet to 24 feet by 36 feet.
C.E.O. White advised the Board that he, D.E.P. and the Portland Water District had survey Sebago Lake and determined that the normal high water mark was 266.5 feet.
Mr. Cunningham presented the Marchi (1986) and Greenberg (1994) court cases in support of the Toomey variance.
Chairman Wrzesinsky advised that the Twigg (1995) court case should also be considered. Mr. Toomey said that he purchased the lot from Standish for taxes of $1,600 and around $2,000 in other costs or fees. Mr. Cunninghan said that in the Twigg the land had a dock and that you do not have to show you can not get a sale. Mr. Toomey advised that his lot has a dock.
Mr. Kaplan asked Mr. Toomey if he ever tried to sell his lot which received a negative response.
Mrs. Aranyi ask what the size of the septic bed would be and the response was 6 feet by 35 feet.
Abutter, Mr. Trueman, owner of lots 223 and 224 said one of his lots was purchased as unbuildable and it was his belief that lot 225 was unbuildable.
Mr. McCarthy as Mr. Toomey if there was any record of lot 115 being unbuildable and Mr. Toomey said no.
The board rejected a motion by Chairman Wrzesinsky, for A. of the Undue Hardship test, based on 1. There was no evidence that the lot could not be sold, 2. The land was being used for recreational boating and 3. Recently unbuildable lots on Frye Island have sold for $65,000 and $74,000.
Parts B. C. and D. passed with four (40 yea votes.
Mr. Kaplan asked Mr. Toomey if he could build a lesser sized home and the answer was yes.
Mr. Cunningham said he could go 100 feet from the lake and 75 feet from the stream.
C.E.O. White said it was not a stream but part of the lake.
Chairman Wrzesinsky advised that marketability is part of many cases.
Mr. Kaplan stated that if he could not build we must give the variance.
Mr. McCarthy made the following motion:
Part A. Reasonable Return:
A. The land in question can not yield a reasonable return unless a variance is granted: Based upon the applicants documentation of not having to prove the land can not be sold and the citation of the Cushing vs R.I. a land owner has the right to develop his land and is not required to sell it. Also the undue hardship exists only because the problem is unique to the property, we believe the criteria of reasonable return is met. (Motion by Mr. McCarthy and 2nd by Mr. Kaplan, passed by yes votes from Mr. McCarthy, Mr. Kaplan and Mrs. Aranyi with a no vote by Mr. Wrzesinsky).
Mr. Kaplan moved and Mrs. Aranyi 2nd a motion to Condition the approval of the variance on the following; that all structures must be set at 80 feet which is a relief of 20 feet from the required 100 foot setback under Shoreland Zoning. This passed with 4 yes votes.
Meeting was adjourned at 9:55 p.m.
Submitted by E. Wrzesinsky