BOARD OF APPEALS
Town of Frye Island

Minutes of Meeting of September 24, 1999

A.    MEMBERS PRESENT:  Barbara Aranyi, Paul Lyons, Bruce Nisula, and Robert Roberts, Chairman.

B.    OTHERS PRESENT:  (See sign in sheet.)  Gerald Daigle, the Code Enforcement Officer (CEO) of Frye Island was present.  Stan Karpacz was not present.

C.    LOCATION:  Frye Island Community Center

D.    CALL TO ORDER:  The Chairman called the meeting to order at 7:04 PM.

E.     PRIOR MINUTES:  The draft minutes of the 8/20/99 meeting were reviewed. A motion was made and seconded to approve the Minutes of Meeting of August 20, 1999, with the following correction to the motion on the Zamis Variance Appeal: Motion to table included the provision that discussion by the public is closed and will not be continued when the motion is placed back on the floor and that only discussion amongst Members of the Board and answers to any questions they may have of the applicant, the CEO or the public will take place prior to voting on the application.  Unanimously approved.

F.     OLD BUSINESS:  

     1.) Variance Appeal submitted by Richard and Susan Zamis of Lot 1847. The Board discussed the facts of the case and the conclusions regarding the hardship standards.   A motion was made and seconded to approve the following Findings of Fact:

1.      The owner of the property is: Richard and Susan Zamis.

2.      The property is located at Lot 1847, in the Residential zoning district.

3.      The applicant is owner.

4.      The applicant has constructed a porch on the subject property; said porch does not conform with the ordinance specifying 15’ side setback.

5.      A completed application was submitted at the time of the first hearing.

6.      Public hearings were held on August 20, 1999, and September 24, 1999.

7.      Relevant section of the ordinance is as follows: Land Use Ordinance Section 101-6, Paragraph H, Sub-paragraph 2 (15’ setback from side).

8.      Dimensional standard required by the ordinance is side building setback: fifteen (15) feet.

9.      The variance request consists of  a three and 63/100ths (3.63) foot setback reduction to allow the porch to remain in its present location.

10.  The land is being used as residential property.

11.  The conditions and character of the neighborhood are not unusual.

12.  The condition of the property is its quadrilateral shape, 211.86 by 75.67 by 219.88 by 76.54 feet.

13.  The reason presented by the appellant for the variance request is that a variance is needed due to the inability of existing porch to meet side setback requirement of Ordinance.

14.  Other relevant facts include the following: . The owners purchased the property August 30, 1996.  A Building Permit Application (Standish) signed by Susan Zamis and dated May 28, 1998, shows that all structures, existing and proposed, are within the 15 foot side setback requirement.  Apparently, the Standish Code Enforcement Officer inspected the foundation and finding no ordinance violation, permitted construction to continue.  Mr. Edward Johnson (Lot 1681) notified Town of Frye Island Officials  on or about July 25, 1998, that there appeared to be a violation of the side setback requirement.  In a letter to Richard Zamis, dated August 13, 1998, the Code Enforcement Officer requested a “Class D” survey to insure that the position of the new porch was in compliance with the 15 foot minimum side setback requirement, and in a letter dated September 24, 1998, reiterated that Town Officials observed that the new porch was in violation (only 11 feet from the side property line).  Richard and Susan Zamis applied for a side setback variance from the Town of Frye Island, which was heard by the Town Selectmen.  However, the Superior Court decreed in the Edward P. Johnson v. The Inhabitants of the Town of Frye Island and Susan and Richard Zamis civil action, dated June 9, 1999, that the Frye Island Board of Selectman did not have jurisdiction on October 30, 1998, to hear a variance appeal, nor to grant a variance.   Unanimously approved.

The board members discussed their conclusions regarding the justifications for each of the four undue hardship standards.  A motion was made and seconded to approve the following  Conclusions:

Conclusions

1.      The land in question can yield a reasonable return because the triangular shaped portion of the porch which is in violation of the setback requirement is a very small proportion of the overall building, and absent said triangular piece, use of the property would not be substantially impaired.

2.      There are no unique circumstances of the property which are not similar to the general conditions in the neighborhood because the lot is similar in size, shape and topography to those of its neighbors.

3.      The proposed use will not alter the essential character of the locality because homes with porches are commonplace throughout the Town. 

 4.  The hardship is at least in part the result of action taken by the appellant because   despite the fact that the Building Permit Application requested by appellant showed that all structures, existing and proposed, would be within the 15 foot side setback line, the actual final position of the new porch was 3.63 feet beyond that line.   According to testimony, this result was unintended by appellant, and appears to be attributable, at least in part, to the failure of a system that depends on the vigilance  of several other individuals more sophisticated about construction, codes, and ordinances than the appellant.   Unanimously approved.

The Board considered the above facts and conclusions and contemplated various conditions which it might require, if the application were approved. A motion was made and seconded to approve the application with the following condition:  Appellant must by May 1, 2000, obtain ownership of the adjoining property, lot Number 1846. Approved (3-1, Paul Lyons  casting the dissenting vote).

G.  NEW BUSINESS:

1.  Variance appeal submitted by James and Diane Breen.  James Breen, an owner, gave testimony on the application giving substantially the same facts as in the written application.   In addition he testified that the dimensions shown in the application should be corrected to show that the existing structures are 91’ from the normal high water line, and that the proposed addition would be 86’ from the normal high water line.  The Board discussed the facts of the case and the conclusions regarding the hardship standards.   A motion was made and seconded to approve the following Findings of Fact:

Findings of Fact

1.      The owner of the property is James P. Breen and Diane T. Breen.  The copy of the deed (dated December 26, 1986) as submitted shows it is recorded in Book 7741, Page 0226.

2.      The property is located at Lot 243, in the Residential Zoning district, Shoreland Zone.

3.      The applicant is owner.

4.      The applicant proposes to construct an addition on an existing building on the subject property.

5.      A completed application was submitted on September 3, 1999.

6.      A public hearing was held on September 24, 1999.

7.      Relevant sections of the ordinance are:  Shoreland Ordinance Section 102-12, Non-conformance, Paragraph C, Subsection 1, b.iii, which states,  “No structure which is less than the required setback from the normal high water line of a water body, tributary stream, or upland edge of a wetland shall be expanded toward the water body, tributary stream or wetland.”  And,  Shoreland Ordinance Section 102-15, Land Use Standards, Paragraph B, Subsection 1, which states,  “All new principal and accessory structures shall be set back at least one hundred (100) feet, horizontal distance, from the normal high-water line…”

8.      Dimensional standards required by the ordinance are:   100’ setback from the normal high water line of the lake.

9.      The variance request consists of a high water line setback reduction of  14’ to allow construction of an extension of an existing platform, which is itself nonconforming.

10.  The land is being used as residential property.

11.  The conditions and character of the neighborhood are not unusual.

12.  The conditions of the property are as follows:   The lot is 238’ deep and 78’ wide.

13.  The reasons presented by the appellant for the variance request is because the proposed addition will make the seasonal home more enjoyable as a waterfront property.    Unanimously approved.

The board members discussed their conclusions regarding the justifications for each of the four undue hardship standards.  A motion was made and seconded to approve the following  Conclusions:

Conclusions

1.  The land in question can yield a reasonable return because there is an existing platform with stairs.

2.  There is no unique circumstance of the property which is not similar to the general conditions in the neighborhood.

3.      The proposed use will not alter the essential character of the locality because decks, platforms, and stairs are common place.

4.  The hardship is not the result of action taken by the appellant because the appellant purchased the property in 1986.

5.  The proposed addition would increase an existing nonconformity. Unanimously approved.

  The Board considered the above facts and conclusions. A motion was made and seconded to deny the application. Unanimously approved.

H.    CORRESPONDENCE AND ANNOUNCEMENTS:

 1.     Future Meeting Dates as follows:

      a.  This year:

October 8, 1999

b.     A motion was made and seconded to set the Meeting Dates for next year as follows:

May 26, 2000
June 30, 2000

July 28, 2000
August 25, 2000
September 22, 2000
October 6, 2000

Unanimously approved.

2.     The Chairman informed the Members that he would be forwarding to the Planning Board a copy of the “practical difficulty” standards that Maine State Statutes allow towns to adopt.    The Town of Frye Island has adopted an Ordinance which imposes the “undue hardship” standards throughout the Island ( Maine requires this standard in the Shoreland Zone).  Kathy Potts questioned whether choice of standards affected dimensional standards.  Answer was no.

3.     Recommendations for our Board Alternate have been requested by the Board of Selectmen.

4.     Joe Potts announced that the Board of Selectmen would be considering some sort of compensation for Members of the Board.

I.  ADJOURNMENT:  A motion was made and seconded to adjourn the meeting at 9:20 PM. Unanimously approved.

Above Minutes approved at Meeting of October 8, 1999.

Respectfully submitted,

Bruce C. Nisula
Secretary, Board of Appeals