TOWN OF FRYE ISLAND

BOARD OF APPEALS

 

MINUTES OF MEETING OF OCTOBER 14, 2005

Meeting Called to order at 7:07 p.m.

Present were E. Wrzesinsky, B. Aranyi, J Gardner, T. McCarthy, H. Molloy, CEO P. White and Town Attorney Larry Clough.

Unable to attend was R. Kaplan

1. T. McCarthy moved the minutes of the September 23, 2005 meeting, with four corrections,  seconded by H. Molloy, 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 next  meeting.

3.  The Board began reconsideration of the decision in the Toomey Variance.

Mr. Clough provided the Board with a letter from Mr. Cunningham, attorney for Mr. Toomey, dated 10-14-05 addressing concerns raised by the Board and by the Board’s attorney.  Letter is included in the Toomey file.

Mr.  Clough, Town Attorney, provided the Board with a letter, dated 10-13-05, providing guidance to the Board as to the “Undue Hardship” test and detailing court case relative to this matter.  Mr. Clough gave a detailed explanation of these cases.  Letter is included in the Toomey file.

Mr. Cunningham raised the issue of which members of the Board should be allowed to participate in this matter.

Mr. Wrzesinsky stated that Mrs. Aranyi, Mr. McCarthy and Mr. Wrzesinsky were present and voted in the September 23, 2005 meeting.  Mr. Kaplan, who was present and voted in the September 23, 2005 meeting is not present today.  Mr. Molloy was present in the audience at the September 23, 2005, heard the presentation of the matter but was not sworn in as a Board member until the next day.  Mr. Molloy advised that he had also read the file on this matter and was prepared to participate.  Mr. Gardner was not at the September 23, 2005 meeting but advised that he has read the file and is prepared to participate.

Mr. Cunningham presented a letter requesting that Mr. Gardner recuse himself.  Mr. Gardner elected to recuse himself and not participate.  Letter is included in the Toomey file.

Mr. Cunningham presented a letter requesting that Mr. Wrzesinsky recuse himself.  Mr. Wrzesinsky said he would not recuse himself and asked the Board to vote if he should remain.  Mrs. Aranyi stated that we often vote different then Mr. Wrzesinsky.  Mr. Molloy stated Mr. Wrzesinsky gave no explanation why we were asked to reconsider this matter.  Mr. McCarthy stated that Mr. Wrzesinsky has been rude at meetings.  Mrs. Aranyi said she has looked up records by herself  before meetings.  Mr. Molloy made a motion to retain Mr. Wrzesinsky to vote.  This was 2nd by Mrs. Aranyi.  The motion passed with three yes votes.  Mr. Wrzesinsky did not vote.  Letter is included in the Toomey file.

Mr. Cunningham provided the Board with a memo detailing case pertinent to this matter.  Memo is included in the Toomey file.

Mr. Clough advised that knowing there are restrictions is a factor to consider but is not the determining factor.

Mr. Cunningham advised that in the Twigg case the courts are backing away from prior knowledge.

Mr. Molloy asked about the Twigg case and Mr. Cunningham again said the courts are looking at it as only a factor.

Mr. Wrzesinsky said that reasonable return is an issue in this matter and that sale privacy lots are noted in the FINS and discussed at FII meetings.

Mr. Clough advised that loss of beneficial use is not the right to develop, it is, is there any beneficial use of the land.

Mrs. Aranyi asked what about the State putting in100 foot setbacks to protect the lake.

Mr. McCarthy asked if the privacy lots previously mentioned were bought by abutters.  Mr. Wrzesinsky explained that the $65,000 lot was but the $74,000  he only knew as a 1600 lot.  Mr. Molloy said that one was also an abutter.

Mr. Molloy offered that abutters would be the most interested.

Mr. Clough said the standard is not Value, it is the loss of all beneficial use, and this is a difficult standard to meet.

C.E.O. White offered that this is the issue to look at.

Mr. Wrzesinsky offered that Mr. Toomey has used this land for five years.

C.E.O. White asked will he lose all beneficial use of land without a variance.

Mrs. Aranyi stated he boats from it and parks his car there.

Mr. McCarthy said he is not sure there is no value to the land, there is a worth. 

Mr. Clough spoke of the “Cumberland Farms” case which said loss of all.

Mr. Wrzesinsky stated that at the prior meeting Mr. Cunningham went through all the uses allowed for this land and said only farming and timber was allowed.

C.E.O. White said that recreation is allowed.

Mr. Clough said any and all is in the court cases

Mr. McCarthy asked if any cases do not say any or all.

Mr. Clough said “all” is in all cases.

Mr. Cunningham said the issue is not any or all, it is all practical beneficial use.  Greenberg and Marchi strict standards is okay to build.  As to permitted uses, recreation is not a permitted use in the land use ordinance.  The Court has said this was a strict standard.

Mr. Clough said that docks are permitted.

Mr. McCarthy spoke of loss of all practical use asking is recreation a practical use and do you have to have all permitted uses.

Mr. Clough said there has to be some practical use of the property.

Mr. Molloy asked if we had any precedent cases on the island.  Mr. Wrzesinsky said he did not know of any.  Mrs. Aranyi said there was one for 95 feet that did not get a variance and this case has water on 2 sides.

C.E.O. White asked the Board to focus on all beneficial uses of the land.

Mrs. Aranyi asked if the dock was grand fathered.

C.E.O. White said that he felt all docks put in before he began requiring a permit are grand fathered.

The following motion was made by Mr. McCarthy with a 2nd by Mrs. Aranyi:

The board finds that the applicant has failed to meet the standard of  A.  The land in question cannot yield a reasonable return unless a variance is granted.

This passed with 4 yes votes.

Mrs. Aranyi made the following motion as to a finding of facts to support the above motion, with a 2nd by  Mr. Molloy:

Based on decisions of the Maine Supreme Court, this requires that the applicant show that denial of the variance will result in the “practical loss of all beneficial use of the land.”

“Reasonable return” is not tantamount to “maximum return.”

The standard is not solely what the lot would sell for or whether there is a “right to develop” since inherently zoning restricts development.  The standard is the practical loss of all beneficial use.

The testimony to date indicates that the lot is currently being used by Mr. Toomey for recreational boating with a dock having been constructed on the lot’s shorefront.  This use is of significant value to inland lot owners, such as Mr. Toomey and many others.

Hence such waterfront lots, even if not suitable for construction of a residence still provides a significant beneficial use, with Mr. Toomey presently enjoys.

This passed with 4 yes votes.

Mr. McCarthy made the following motion with a 2nd by Mrs. Aranyi:

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

The applicant has met the standard of B. because it has water on two sides.

This passed with 4 yes votes.

Mr. McCarthy made the following motion with a 2nd by Mrs. Aranyi:

The granting of a variance will not alter the essential character of the locality; and

The applicant has met C. because the area is primarily residential, so the proposed building would be consistent with the character of the locality.

This passed with 4 yes votes.

Mr. Molloy made the following motion with a 2nd by Mrs. Aranyi:

The hardship is not the result of action taken by the applicant or a prior owner.

The applicant demonstrated that Lot 225 was created by a 1967 sub-division with a 50 foot setback.  Shoreland zoning increased it to 75 feet and later to 100 feet.

This passed with 4 yes votes.

Mr. McCarthy made the following motion with 2nd by Mr. Molloy:

To accept this Reconsideration of Decision of October 14, 2005.

This passed with 4 yes votes.

4.  Motion by Mrs. Aranyi with a 2nd by Mr. McCarthy to adjourn at 9:43 p.m. passed with 4 yes votes.

Submitted 10-16-05
Ernest Wrzesinsky, Chairman