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ZONING BOARD OF APPEALS JANUARY 2008 MINUTES
TOWN OF FALMOUTH
BOARD OF ZONING APPEALS
TUESDAY, JANUARY 29, 2008
These minutes are not verbatim
MEMBERS PRESENT: Rich Bayer, Fred Jay Meyer, Jim Thibodeau, Dennis Keeler, Willie
Audet and Stan Given.
MEMBERS ABSENT: Kevin McCarthy
Rich Bayer served as Acting Chairman.
The meeting opened at 6:40 pm.
Mr. Audet and Mr. Given were designated as voting members for the meeting.
1. Minutes:
September 25, 2007 Meeting minutes: Jay Meyer moved to approve as
amended; Willie Audet seconded. Minutes approved 5-0.
Jim Thibodeau moved to table the October and November minutes. Jay Meyer
seconded. Minutes tabled 5-0.
Administrative Agenda Items:
2. Nanci Kahn represented by Michael Mooney - Is requesting Conditional Use
approval under Section 6.2a for a new deck and foyer at 44 Hurricane Rd. Parcel R08-
092, zoned “FF”.
Dennis Keeler moved to approve the administrative agenda item. Willie Audet seconded.
Application approved 5-0.
Regular Agenda Items:
3. Gary Wilson represented by Peter McNaughton– Is requesting approval under
section 6.5 to rebuild a garage at 114 Gary Rd. Parcel #U43-009, zoned, “VMU”.
This item was removed to the regular agenda at the request of Jay Meyer.
Stan Given was a voting member for this application.
Mr. Meyer asked if the garage is going to be enlarged.
Mr. McNaughton, representing the applicant, said no, it isn’t.
Mr. Keeler asked Mr. McNaughton to indicate on the sketch provided where the garage is
currently, and whether the foundation is still there.
Mr. McNaughton said yes, the foundation is still there. A tree fell on the building.
Mr. Keeler asked if this is in the shoreland zone.
Mr. McNaughton said that it isn’t.
Mr. Keeler asked if there was any expansion or addition planned.
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Mr. McNaughton said that no, the plan was to replace the same thing that was lost. In
response to questions from Mr. Bayer, he specified that it would be the exact same
dimensions with the same materials, except that the siding would be replaced with vinyl.
A public comment period was opened- there was no public comment.
Mr. Meyer asked about the section 6.5 basis for this application. He wondered if it could fall
under section 6.10.
Mr. Farris said that it could but he looked at it as replacing a destroyed or damaged
nonconforming structure due to it being 14 feet from the property line. Due to it being a
nonconforming lot it can be no closer than 10 feet.
Mr. Meyer said that section 6.5 says if it is feasible it should be moved to meet the setback
requirement. He thought he saw a rear setback of 15 feet on this property.
Mr. Farris said the issue is the setback of the left property line.
Mr. Thibodeau asked if the setback is 15 feet in that zone.
Mr. Farris said yes. Section 6.10 is usually interpreted as applying to a freestanding
accessory structure. This garage is attached.
Mr. Thibodeau moved to approve the application for the reconstruction of an existing garage
to be on the existing foundation, for the same use and same dimensions as current.
Mr. Keeler seconded.
Mr. Keeler thought that the application could fall under section 6.10, but he said he was
comfortable with it as is, due to it being attached.
Mr. Bayer observed an additional requirement under section 6.10 to conform with existing
fire codes, and Mr. Farris said that would be addressed under the building code.
Mr. Meyer observed that the issue of setback compliance is a de minimis issue.
Application approved 5-0.
4. Stewart MacLehose- Is requesting Conditional Use under Section 8.3 and 6.7 to build
a single family dwelling at lot 35 Hartford Ave, Parcel# U04-035, zoned “RA”.
This item was removed to the regular agenda at the request of several board members.
The applicant wishes to construct a new single family dwelling on this lot in the 1920’s
Country Club Villas subdivision. The applicant has had the lot surveyed with the shoreland
zone and wetland boundaries delineated. The lot meets the net buildable area requirements.
The lot is verified by the CEO as buildable under the ordinances but requires Board
approval because it fronts on a “paper street” and therefore is nonconforming.
Mr. Bayer recused himself from hearing this item, so Willie Audet and Stan Given were both
voting members for the application. Jay Meyer served as chair for the item in Mr. Bayer’s
place.
Stewart MacLehose, applicant, explained that they are applying for a section 8.3 conditional
use because the property doesn’t have the 125 feet of required road frontage. It does have
a paper street that would provide frontage. He is applying under section 6.7 so that he can
get emergency vehicles to the house. The fire department has agreed that if he brings the
driveway up to road standards, they would be okay with the project.
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Mr. Given asked about the sketch with the wetland setback shown.
Mr. MacLehose said that Wetland Consultants, associated with Sweet Associates, surveyed
the wetlands to get the proper siteing of the wetlands. He handed out the report to the
Board. He also handed around a copy of an email from the Fire Department at Mr. Keeler’s
request.
Mr. Farris said that he talked with Doug Patey from the Fire Department about the 6.7
‘emergency vehicle access issue’. The Fire Department says that the paper street should be
brought up to road standards but did not specify which standards - street standards or
private way. The applicant will therefore bring up the driveway to the minimum standards of
a private way.
Mr. Keeler because this is a nonconforming lot, he only has to satisfy the “reasonable
access” issues, and not the street frontage standard?
Mr. Farris said that was correct; the applicant has agreed to bring the road up to minimum
private way standards.
Mr. MacLehose handed out copies of the survey showing the shoreland zone and wetland
area delineated, at the request of Mr. Thibodeau.
Mr. Thibodeau asked if access would be off Hartford Avenue.
Mr. MacLehose said that it would.
Mr. Thibodeau asked on which side of the wetland setback the applicant plans to build.
Mr. MacLehose said he was planning to build in the triangular area, on the southern edge of
the property. When looking at the survey, he plans to build in the southeastern portion of
the lot. He is planning a modestly sized 2 story home, 1500 square feet total.
Mr. Thibodeau said that he would like to add to the conditions of approval that the road
would have to be built to the requirements set forth by the Fire Department, and that the
location of the house is shown on the survey plan submitted to the Code Enforcement
Officer.
Mr. Keeler observed that one requirement of the ordinance is to show how a project is
compatible with neighborhood; there is nothing in this application showing the project.
Mr. MacLehose said that he is just here for the use of the lot; not for the actual structure.
Mr. Keeler said that it’s hard to agree a project is compatible with the neighborhood without
seeing something. He agreed a condition was needed that the house be shown on the plan.
Another requirement of the ordinance is impact on water views; he asked if there were any
concerns expressed by the owner of the house on Providence Street behind this property.
Phil Kaplan, architect for the applicant, passed around a diagram showing the two houses
behind the property. He passed around another diagram showing the general height of the
proposed home, which showed the scale of the proposed home. He said that the home will
be approximately 10 feet below the homes behind it. He also passed around pictures of the
two homes behind the proposed home. He said that the view from one of the houses where
the proposed house will be placed is already obstructed by trees. The other house only has
one window there.
Mr. Keeler asked about a plan of the footprint of the proposed house.
Mr. Kaplan said that the house isn’t designed yet. He said he could provide a sketch of the
building envelope on the diagram. They plan a footprint of 800 sq feet, 1500 square feet in
the home.
Mr. Keeler asked if the lot has been vacant.
Mr. Farris said yes, always.
Mr. Given asked about a septic system.
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Mr. Farris said that there was public sewer and public water there.
Mr. MacLehose indicated on the map the location of the public water main.
Mr. Audet asked for clarification that the lot has not been purchased.
Mr. MacLehose said that was correct.
Mr. Audet said he was looking at the criteria of section 8.3 h, relating to drainage. He
thought it looked like the proposed home will fill in a big hole.
Mr. MacLehose said that there is a 10 foot slope.
Mr. Audet was concerned about the compatibility with the neighborhood. He observed that
the Board was being asked to approve an application when they don’t know what the
applicant is going to build. He wanted to know what assurance board has that the applicant
will comply with this criteria after approval.
Mr. MacLehose said that he was asking for conditional use approval; he thought that Mr.
Audet was asking about issues that would be addressed by the Code Enforcement Officer
when he applied for a building permit.
Mr. Audet said that the Board needs to evaluate how the applicant will comply.
Mr. MacLehose said that at this point he doesn’t own the property; he said he was just trying
to get to the point where he knows they can build there.
Mr. Kaplan said that he was here before with a similar issue. He testified that, at that time,
the Board said that the scope and scale was to be consistent with the surrounding
neighbors, but they determined that it is not this Board’s place to determine the design of the
building.
Mr. Farris agreed with Mr. Kaplan’s statement, saying that there has been an opinion from
the town attorney saying the same thing, that the Zoning Board does not have architectural
controls, as long as it is essentially compatible with the neighborhood, similar size, singlefamily
home, etc.
Mr. Thibodeau asked if the Board can require a peer review.
Mr. Farris said that yes, it was within the purview of the Board, but it would be unusual.
Mr. Thibodeau said that it was appropriate for the Board to listen to the public’s concerns
about a project, as they have an obligation to make decisions on the public’s behalf.
Mr. Audet returned to the subject of section 8.3 H, the soil erosion and drainage question.
The applicant has indicated that there is a 10 foot slope here, and indicated that the house
will be in this area, but there is nothing to tell how the drainage will be handled, right near
the wetland. He thought that it looks like a difficult site, right next to a coastal wetland. He
asked if there will be a silt fence.
Mr. Farris said that an erosion control plan will be part of a building permit package.
Mr. Audet said that he was a little uncomfortable with the bulk question – he wondered
about the design of the proposed house.
Public comment period opened.
Adam Jones, representative for the estate of Harold Jones, which owns the white house
shown in the photos, spoke about his concern about the impact of the project on his
property values and water views. He said that, since the proposed house is not shown on
the map, it is hard to tell where it will be, but he guessed it will probably be right in the
middle of the water view. The white house is a very small house and its value is based
primarily on the view, so if the view goes away, the value will be significantly impacted. Mr.
Jones handed around photos taken from the white house showing the water views.
Mr. Meyer asked if he had any other concerns.
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Mr. Jones said his concerns were primarily the views and property values. He said that the
property in question was going to be taken by MDOT for wetland mitigation for the
Presumpscot Bridge project. He said that it was considered a high-value wetland, but that
the plan was abandoned.
David Nichols, 30 Providence Avenue, said that he shares the water view with Mr. Jones.
He said he was pleased with the Board’s consideration of the compatibility with the
neighborhood. He testified that the applicant already lives in the neighborhood, and that he
thinks Mr. MacLehose will try hard to have the project fit in. As this process moves forward,
he thought it would be helpful for the neighbors to see what the proposed home will look
like, and its impact on the views.
Rich Bayer, 18 Harding Avenue, said that he has no view of the area, but he is familiar with
it. He said that his children sled down the hill on this property. He thought this application
was the perfect application of fill-in use of vacant land. This property is down the street from
the recent Habitat for Humanity house. That was a good use of that lot, and he thought this
project would be a good use of this lot. This is a considerable drop off, and he thinks it will
ameliorate the impact of the proposed home on the views. He thought it was fair for the
board to require a sketch of the house as it is a two-story house. He said he supports this
application, but thinks tabling it could be good idea.
Public comment period closed.
Mr. Kaplan said that the applicant is a current member of the neighborhood, and that his
intent is to make this as small and simple as possible. It will be a very green structure, 1500
square feet total. He said he would be happy with an approval that is contingent on a
sketch. He requested some movement from the Board so that the applicant can move
forward on the purchase.
Mr. Thibodeau thought the application had some merit, but he thought Mr. Audet had a good
point in that the Board needs to see what this will look like. Doing a conceptual sketch
doesn’t seem like a huge thing to ask. He asked if there was something that would cause
the applicant grief if this item is tabled.
Mr. MacLehose said that the Purchase and Sale agreement has already been extended
once; he didn’t know if the seller will be willing to extend it again.
Mr. Keeler asked when the current date is.
Mr. MacLehose thought that the current date is March 15th.
Mr. Audet observed that the applicant is asking the Board to determine the impact of the
proposed home on water views without knowing where the house will be.
Mr. MacLehose said that he thought it was a complete application; he doesn’t own the
property. He wondered how far he goes with architectural designs without any guarantee
that the Board will approve the project.
Mr. Keeler asked Mr. Farris, if the Board approved based upon the statements made
tonight, or materials submitted if it gets tabled, does that mean the purchaser of this 5-10
years from now can change this. He asked how the Board ensures that the applicant
complies with this determination.
Mr. Farris said that, per the town attorney, this will remain a nonconforming lot due to the
paper street, so anyone who wants to build on it would have to come back to the Board. If
the applicant built a road it would be a conforming lot, and this Board would have no say.
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Mr. Keeler asked for clarification that if the applicant removed the need for an application
under section 6.7 by building a private way, he wouldn’t be before the Zoning Board.
Mr. Farris said that was correct.
Mr. MacLehose said that he doesn’t want to impact the water views; he loves the
neighborhood.
Mr. Farris observed that there was a certain question of economic impact here; building a
private way would increase the lot value and would therefore encourage building a larger
home to be consistent with the lot value. The applicant is just building a driveway.
Mr. Keeler asked about the current deadline to satisfy the permitting condition.
Mr. MacLehose said that the technical deadline is 2/15 with a right to extend to 3/15; the
Purchase and Sale agreement is conditional on the lot being buildable.
Mr. Thibodeau observed that the application has merit provided the Board can get past the
two issues of compatibility and impact on water views. He suggested that the application be
tabled pending an architectural rendering of the proposed house.
Mr. Keeler said that he was in a position to accept this if materials had been submitted in
support of the statements made in the application. A plan showing even just the building
envelope and some description for the record regarding the height, or not-to-exceed height,
of the proposed house would be something to ensure that the Board feels that it has carried
out its duty to the public. He had a hard time saying that tonight. If the applicant is willing to
table this and come back with materials showing what he has described, Mr. Keeler
expressed that he would be willing to go along with that. He felt that he needed something
in the record to go along with an approval.
Mr. Audet moved to table the application.
Mr. Thibodeau seconded.
Application tabled 5-0.
5. Lawrence Rowell– Is appealing a decision of the Code Officer and requesting a
Variance under section 8.4 at 6 Cole St, Parcel #U29-10-002, zoned “RB”.
The applicant wishes to amend his lot by acquiring land from an adjacent lot.
Stan Given was a voting member for this application.
Matthew Ek of Sebago Technics, representing Mr. Rowell presented the application. The
applicant has a house on lot 2 of the Cole Street subdivision. The owner of lot 1 wants to
convey a triangle of land to lot 2 to bring lot 2’s garage into compliance. The issue is lot 1 is
only 26,000 sq feet, and the conveyance would bring it down to 23,599 sq feet. The
applicant therefore needs the variance due to lot size. Another lot in this subdivision is
20,082 sq feet. The applicant has to go before the Planning Board after approval from this
Board. He is not proposing to build anything.
Mr. Rowell explained that Mrs. Bickford, the owner of lot 1, is in a nursing home now; they
have been neighbors for 40 years. He can’t go around his garage without being on her
property. It is her wish that this be done.
Mr. Ek said that a letter from Mrs. Bickford showing intent is available; it was submitted to
the Planning Board.
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Mr. Rowell said that he has talked with all the neighbors, and all of them are okay with the
project.
Mr. Ek said that there is no fence or anything there now, but a new owner of lot 1 could put a
fence there, and it would be right next to the garage.
Mr. Keeler observed that this application reads as an appeal and a variance request.
Mr. Rowell said that he spoke with the Code Enforcement Officer a few weeks ago. The
town attorney turned this down, saying that the applicant couldn’t do the conveyance without
going before the Zoning Board and getting a variance.
Mr. Farris said that this is not an appeal. It can only be done with the granting of a variance.
Mr. Keeler asked for clarification that this is simply a variance request and not an appeal.
Both Mr. Rowell and Mr. Farris said that was correct. Mr. Farris said that he initially thought
that due to this 1958 subdivision being in place prior to the adoption of modern zoning, he
thought it would not be subject to minimum lot size, setbacks, etc. However Section 4.1
says essentially that you cannot change a nonconforming lot.
Public comment period opened.
Mary Holmen, a friend of Esther Bickford, said that she has spoken with Mrs. Bickford and
can attest to her intent to simply transfer property to her good neighbors.
Public comment period closed.
Mr. Thibodeau said that he felt the application meets the criteria 8.4 b 2 & 3, but he believed
that the land can provide a reasonable return as it stands. Referencing the criteria that the
hardship not be the result of a previous owner, he asked how long the garage has been
there.
Mr. Rowell said that he didn’t know; it’s been there since he purchased the property in 1978.
Mr. Farris said that the house was built shortly after the subdivision was created in 1958.
There were no setback requirements then.
Mr. Keeler asked what the applicant’s concern was here.
Mr. Rowell said his concern was if someone else bought the property and didn’t want him
going on their property.
Mr. Keeler said that he didn’t think the applicant could get a variance; he suggested an
easement from the current owner allowing Mr. Rowell access to the land, preventing a
fence, etc. Mr. Keeler didn’t feel that the application could meet the reasonable return
criteria, since it’s been working fine so far.
Mr. Rowell argued that if he decided to sell his property it would be an encumbrance.
Mr. Meyer agreed with Mr. Keeler, and suggested a right-of-way or an easement. He
observed that the reasonable return criteria is hard to meet. This property has been
functional for a long time as it is.
Mr. Rowell thought this was the easiest, cleanest way to do this, simply straighten out the lot
line.
Mr. Audet explained that the application just doesn’t meet all the standards the state has
given the Board to meet. He said it doesn’t meet the reasonable return criteria. He
expressed his support of an easement.
Mr. Thibodeau explained that to meet the criteria of reasonable return you could tear down
the garage and move it and still get a reasonable return. That’s how strict the criteria is.
Mr. Keeler moved to deny the application for a variance.
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Mr. Thibodeau seconded.
Application denied 5-0.
Findings of fact:
Criteria 8.4 b 1 – reasonable return: vote that criteria is met: 0-5.
Mr. Keeler said not just that it isn’t met, but that it couldn’t be met.
Criteria 8.4 b 2 – unique circumstances of property: vote that criteria is met: 3-2. (Bayer,
Keeler opposed)
Mr. Thibodeau expressed that he believes that the unique circumstance of this property
is that the garage is too close to the property line and is nonconforming in the setback.
He said he does not have enough information to say if that is a general characteristic of
the neighborhood, but he doesn’t believe that is the case.
Mr. Meyer said that his view is that the need for a variance is due to the particular layout
of the garage on this particular lot.
Criteria 8.4 b 3 – essential character of locality – vote that criteria is met: 5-0.
Mr. Bayer said that if the Board were to make this change, it is de minimis and would not
change the overall character of the neighborhood.
Criteria 8.4 b 4 – not result of action by owner or previous owner: vote that criteria is met: 4-
1 (Bayer).
Mr. Meyer said that the structure was built before modern zoning. At that time it wasn’t
running afoul of any setbacks. It was conforming back then.
Findings of fact – criterion 1 is not met, 2-4 are met. Conclusion of law is that the variance
cannot be granted.
6. Mark Kaplan- Is requesting Conditional Use approval under Sections 6.2b and 6.11
for an enlargement and a setback variance under Section 8.5 at 16 Shoreline Dr.
Parcel # U01-078, zoned “RA”.
Willie Audet was a voting member for this application.
Mr. Kaplan explained that he was here before the board in June 2007.
Mr. Bayer asked if the Board had any information from the previous application.
Mr. Farris said that this was a different application, and a different approach to solve the
same problem. The Board therefore can hear it again.
Mr. Kaplan said that he purchased the house at 16 Shoreline Drive in May 2007. He is
looking to improve the neighborhood with this project. It is a poorly designed, poorly laid out
house which has also been neglected. It is a relatively modest house, so it is difficult to
change it and keep it comparable with the size and keeping of the neighborhood. He thinks
it is the only multilevel house in the neighborhood. The house has 5 different levels, with
four stairways that are not connected. He needs a small setback variance to make a
workable design to move access to Avon Street, as well as improve and modernize the
house. The house has always had a Shoreline Drive entrance; there are no building permits
on record for improvements on the house. It has never had an entrance on Avon Street;
there are no walkways on that side. The proposed encroachment into the setback is to build
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only a few sq feet. A 4 foot encroachment is within 20%. The porch is within 16 feet of the
property line, but it is 30 feet from the street. The right-of-way of the street encroaches 13
feet into the front lawn. The neighbors are anxious to see improvement to this property.
The building was built prior to current setback standards.
Public comment period opened.
Susan Blackman, a neighbor, said that any change is an improvement from the exterior of
the house.
Myra Alden of 9 Avon Road said that the home is in definite need of improvement. Her only
concern was that she has not seen any drawings of the proposed improvements. Her house
is only 2 homes up and this house is between her and the water view. She was interested in
seeing drawings showing the impact on her water views. She would like to see a stake or
something that would indicate what impact this would have on her water views. Even so,
she was not sure that she would oppose the project in any way.
Mr. Kaplan showed Mrs. Alden drawings of the house design.
Mr. Meyer asked if Mrs. Alden has any views over the roof of the applicant’s house.
Mrs. Alden said that the house between hers and the applicant’s kicks out in front of her
house. There is no direct view from the corner of her house to the water.
Public comment period closed.
Mr. Keeler asked for clarification of why the applicant needs a variance.
Mr. Kaplan described the changes that are needed to improve the layout of the house. He
is trying to create an entrance on a certain level of the house; he needs the variance
because in order to reach that level he must raise the roof to accommodate new entry stairs
and he will encroach upon the setbacks. He said, and Mr. Farris, having been in the home
on a number of occasions, concurred, that there was no other feasible alternative to creating
the entrance to the house, other than getting the variance tonight.
The Board discussed possible other alternatives, but none seemed to be reasonable. After
some discussion, Mr. Thibodeau felt that the applicant had met the criteria of 8.5.
Mr. Audet asked about the setback dimensions on the diagram. With Shoreline Drive as the
new front yard setback, the rear setback is labeled on the plans as 20 feet, but is supposed
to be 40 feet.
Mr. Kaplan thought that was probably mislabeled. He said he is not planning to do anything
outside the existing structure in that area.
Mr. Farris said that the lot is only 49 feet wide on that narrow end.
Mr. Audet said that, with Shoreline as the new front, the rear set back is 40 feet in that area.
Mr. Kaplan said that he can build to the existing structure that is currently within a setback.
Mr. Farris as long as you are not closer than 10 feet to the property line under 6.2 b.
Mr. Bayer asked Mr. Kaplan to describe the five levels of the current configuration.
Mr. Kaplan said that there is a basement level, then several stairs to the garage level; four
stairs to the Shoreline Drive level; several stairs to the foyer level, then four stairs to the
living room and kitchen level, and finally four stairs to the bedroom level.
Mr. Bayer asked why it is there is no other feasible alternative to this design. He asked why
the applicant can’t put a doorway anywhere.
Mr. Kaplan explained that the objective is to get a doorway to a particular level of the house.
He said he can’t get a door into that section without some encroachment on the setback.
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On the Shoreline Drive side the house is two stories; on the Avon Drive side it is 1 to 1.5
levels. The windows that are down low to the ground are level with Shoreline Drive. The
only place on the Avon side that is level to the ground is the little foyer area.
Mr. Meyer asked if it was feasible to have a door leading into the living room.
Mr. Kaplan said that it is not staying a living room, and he would still need stairs to get into
that level. It’s higher than the foyer by 3-4 stairs.
Mr. Thibodeau moved to approve the 8.5 setback variance request of the applicant.
Mr. Keeler seconded.
Mr. Meyer asked Mr. Farris about the maximum permissible lot coverage. It is 20% under
the RA zone, can go up to 50% under 6.2. He asked about the history of the Board on how
they have applied this.
Mr. Farris said that is a conflict. Under 6.2 you can be 50%.
Mr. Bayer said that the ordinance reads that the variance cannot be granted if the variance
could cause the house to exceed the maximum permissible lot coverage. As it is, the house
already exceeds that. According to the applicant’s numbers, it is very slight.
Mr. Bayer said that the section 8.5 variance is easier to get due to the single family primary
residence. In considering section 8.5 e, the comments of Mr. Farris give this application
weight. He thought there is a fine line between convenience and demonstrated need, and
due to the multiple levels and grade of this property, he was inclined to see this as a need.
Mr. Keeler agreed that no other feasible alternative seems to be available. He thought the
applicant really does have a difficult situation with this house. This is a different standard
than an 8.4 variance.
Application for variance approved 5-0.
The Board then took up the section 6.2 b application.
A public comment period was opened – there was no public comment.
Mr. Keeler asked the applicant what he is requesting here.
Mr. Kaplan explained that it is a 6.2 because it is an enlargement on a nonconforming lot.
Mr. Keeler asked if this is because of the roof.
Mr. Farris said that it is an expansion within the setbacks.
Mr. Meyer asked if it is more than 20 feet from an adjacent structure.
Mr. Farris said that he is confident that it is.
Mr. Bayer referenced the aerial photo included in the packets, noting that there is nothing
labeling the distance to the adjacent structure.
Mr. Kaplan said that it is well over 20 feet.
Mr. Keeler asked if it is 6.2 b, and not 6.2 a because there is some enlargement within the
standard setback.
Mr. Farris said that it is within the standard 20 foot setback.
Mr. Kaplan said that a lot of the house is within standard setbacks.
Mr. Farris said that the new roof on the building is within the 20 foot setback, but it is greater
than the 10 foot setback allowed under section 6.2.
Mr. Kaplan said that the roofline is changing, new dormers are being added. All of which
are staying over existing driplines. There will actually be some reduction in the driplines due
to a reduction in the overhang.
Mr. Keeler observed that there are some volume changes and height increases.
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Mr. Farris said that was correct.
The Board determined that they didn’t have to address the issue of moving closer to the lot
lines. The porch was granted under the variance, and the applicant is actually moving back
a bit due to the overhangs being moved back from 24 inches to 12 inches.
Mr. Thibodeau moved to approve the conditional use under 6.2 b and 6.11.
Mr. Meyer seconded.
Mr. Keeler asked why the applicant needed approval under section 6.11.
Mr. Farris said that it is because the shoreland zone is 250 feet. Shoreland zone requires a
100 foot setback, which this property meets.
Application approved 5-0.
7. L. Allan Carlsmith-Is requesting approval to build on a nonconforming lot under
Section 6.7 and, a Setback Variance under Section 8.5 for a single family dwelling at
32 Andrews Ave. Parcel #U01-100, zoned “RA”.
Stan Given was a voting member for this item.
Mr. Farris informed the Board that the Section 8.3 and 6.7 applications need to be decided
before the 8.5 variance is considered because the applicant is not the owner of the property.
Mr. Bayer said that he thought the Code Enforcement Officer had determined that the lot is
buildable.
Mr. Farris said that he made that determination due to his opinion that it is a conforming lot.
However, the recent opinion of the town attorney is that the application needs approval
under section 6.7.
Mr. Bayer referenced a letter from Mrs. Peterson, the current property owner, stating that
she is granting the Board the right to act on the application.
Mr. Carlsmith presented his application. The lot is towards the end of Andrews Avenue; it is
the next to last lot on the left. It is not the waterfront lot. The lot is very small; it originated in
a development in 1922, called the Martins Point Park Development. These lots were 100
feet deep from the road and had 40 feet of frontage. Most people here bought two or more
40 foot lots to build on. When you apply the standard setbacks to a lot this small you have
very little left. He said that his intention is to take advantage of the southern facing nature of
the lot, which makes it an excellent location for a solar heated home. A solar heated home
needs to have the roof panels facing southward. The standard 40 foot rear setbacks and 20
foot front setbacks would not leave him with much of a house, and many of the houses in
the neighborhood don’t meet those criteria.
Mr. Bayer asked Mr. Farris about a note in the Board packets that the application was not
complete. The applicant needs to address the issue of the setbacks meeting the roof
overhangs.
Mr. Carlsmith said that he submitted a photo of an exemplary home, something they would
like to put there, but that photo shouldn’t be considered as the final design. The home in the
photo has rather extreme roof overhangs. Mr. Carlsmith said that he wasn’t aware of the
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setbacks coming to the roof overhangs when he submitted his application. It is not his plan
to use this exact house, but it was used to create the drawings submitted.
Mr. Bayer observed that under 8.5, c-e, the granting of this variance is limited to the
setbacks of a primary, year-round residence of the applicant. He asked if the board felt that
this should be the current year round residence of the applicant in order to be considered.
Mr. Farris observed that this interpretation would exclude any new construction on any lot
that needed this variance. The way this reads is that you can only do findings on an existing
house.
Mr. Keeler said that section 8.5 was adopted to provide a little relief from the harsh
standards of 8.4. This was for people living in current homes; it provided a little statutory
leeway for those existing houses that were nonconforming. It was an intentional loosening
up of a very strict standard. He said it was not his understanding that it was meant to allow
new construction.
Mr. Bayer said that he didn’t remember this ever being applied by this Board to someone
who wanted to build a new home. He said that, if it does apply only to existing homes, this
variance can’t be granted.
Mr. Thibodeau observed that the building envelope that the applicant has presented is,
without the variance, 20 feet wide at the narrow end, 28 feet wide at the wide end, and 68
feet long. He thought that a house could be built in those limits. He felt that the application
couldn’t get past 8.5 e.
Mr. Bayer asked the board about the reading of the variance relating to the issue of a
current, primary year-round residence.
Mr. Meyer said that the problem here is that since the house is not built, there are a lot of
alternatives as to what house could be built. If they intend to build it as their primary
residence, he felt that it would be met.
Mr. Carlsmith said that it will be his primary year-round residence. He testified that his
intention is to build a solar house; a house within those dimensions carrying solar panels
adequate to cope with a Maine winter would create an undesirable roof design.
Mr. Bayer had questions of the variance applying to an existing, primary year-round
residence only.
Mr. Audet asked Mr. Farris if Bill Plouffe, the town attorney, had chimed in on this issue.
Mr. Farris said that he had not.
Public comment period opened:
Susan Blethen, who owns the property immediately behind this property, said that she was
certain that a house will be built here at some point, and feels that this type of design
sounds appropriate. She would be looking at the home, and would be interested in a solar
powered home in the area.
Janet Peterson, the current owner of the property, testified that she was very pleased with
the Carlsmiths’, and felt that Mr. Carlsmith has done his homework. She said that the lot
will be sold, that these people will be good neighbors, and she believes that they will build a
house that will fit the neighborhood. She hopes the board will approve the application.
Sherri Genoitz, a neighbor, thinks it is important to point out that most of the houses in the
neighborhood would not have been built under the current standards. All the lots are tiny.
She thinks the board should encourage people to infill, and should approve the application.
13
Public period closed.
Mr. Thibodeau asked if the plan was to build a home similar to the house in the photo, and
the footprint laid out on plans, i.e. a 27x 38.5 footprint.
Mr. Carlsmith said that those are the exterior dimensions of the exterior walls of the
exemplary house used.
Mr. Thibodeau asked if the applicant could eliminate the roof overhang.
Mr. Carlsmith said that on one hand, yes, but that also reduces the roof area available for
solar panels. He said that he hadn’t yet calculated the design of this size house with
regards to heat loss. He said that he threw this design out as speculation, to show what
style house he considered appropriate.
Mr. Thibodeau asked if he could turn this house 90 degrees and fit it within the building
envelope. He said he was looking at the section 8.5 e criteria, which reads “no other
reasonable alternatives”, and he thought that maybe there is a reasonable alternative here.
Mr. Carlsmith said that he believed that the house as shown, with the roof dimensions 35.6
feet by 47 feet would not fit the setbacks without a variance. The buildable area without the
variance at the south end gets very narrow. At the north end you could fit it in, but it would
violate the setbacks.
Mr. Thibodeau asked if the applicant felt that, if he looked at other alternatives, he could fit
the house within the envelope.
Mr. Carlsmith said that he couldn’t answer that tonight.
Mr. Keeler asked if the applicant has explored other alternatives.
Mr. Carlsmith said that no, he’s been trying to move the purchase and sale agreement
along.
Mr. Keeler asked Mr. Farris if the 20% maximum lot coverage was an issue with this
application.
Mr. Farris said that he didn’t address this issue due to the discussion with the applicant
regarding the roof overhangs and changing the proportions of the house to accommodate it.
It is a 9,854 sq foot lot, with a 3400 sq foot footprint. The lot coverage would include the
garage.
Mr. Bayer asked what the dimensions of the building envelope are.
Mr. Farris said 29 feet on one end, 17 feet on another, 70 feet long, plus or minus, meeting
the standard setbacks.
Mr. Carlsmith said that the buildable area of this property, with the standard setbacks, is
approximately 20 feet wide at the small end, 27.5 feet at the large end, and 68 feet long; the
setback rules require setbacks to follow the curvature of the road.
Mr. Thibodeau moved to approve the application under section 6.7.
Mr. Meyer seconded.
Mr. Keeler asked Mr. Farris why the application was under section 6.7.
Mr. Farris said that 6.7 approval would allow someone to build on this lot. It is a legal lot
due to its creation before modern zoning, but it is nonconforming. Approval from the Board
is needed to build on a legally existing, nonconforming lot.
Mr. Keeler asked if it needed to meet the section 8.3 criteria.
Mr. Farris said that he didn’t think so.
Mr. Bayer asked if this lot has remained vacant since the effective date of the zoning
ordinance.
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Mr. Farris said it had. Since the Board has reviewed Mr. MacLehose’s application under the
8.3 criteria earlier tonight, the precedent is that 8.3 criteria should be followed with this
application.
Mr. Thibodeau asked if they were using the 8.3 criteria against the house design presented
here. He thought that the specific house as presented may have some problems under 8.3.
Mr. Farris said that the applicant is looking at a particular style, not that specific house.
Mr. Bayer said that the best way was to look at the lot itself, not at the specific structures.
He wondered if that was too minimal of a review. He asked if the Board can review the lot
and say anything can be built on it as long as it meets the setbacks.
Mr. Keeler said that he was not comfortable with a carte blanche approach. He said that
there was a natural building envelope here, as opposed to the prior applicant earlier tonight.
He said that he thought the 8.3 criteria are satisfied here.
Mr. Bayer agreed, since it has a rather defined building envelope already, with established
buildings surrounding it.
Mr. Meyer referenced the 8.3 issue of impact on water views, but he observed that the most
impact would be on neighbors who are here tonight in support of the application.
Mr. Bayer said that he was willing to vote in favor of the application due to the narrow
building envelope.
Mr. Keeler asked if the applicant had a sense of the height of the proposed home.
Mr. Carlsmith said that he didn’t.
Mr. Meyer asked if his intent was to build more than a two story building.
Mr. Carlsmith said that the house design presented is a two story building.
Mr. Farris stated that the town would consider it a story and a half, cottage style home.
Mr. Meyer clarified his question to ask if the applicant wants to have a three story building,
or is he satisfied with two. His concern is with water views and the impact on the property
values of the abutters, even with a conditional use.
Mr. Carlsmith said that the water views in this area are all on the first level, and he thought
this issue would be better handled with an easement or deed restriction rather than
setbacks. There are many two story buildings in the area. He said he was not interested in
a three story building at all.
Mr. Bayer said that if the Board approves the application without any restrictions, the
property can be built without any restrictions. He wondered if the Board should maybe table
this portion of the application pending more information regarding the house design.
Mr. Carlsmith suggested that it is within Mrs. Peterson’s power to place restrictions on the
deed.
Mr. Thibodeau said that since the representative drawing presented is a 1.5 story building,
he suggests a restriction on the building to limit it to a house similar to the design presented.
Mr. Bayer added the wording “at the discretion of the CEO”. He asked if this is acceptable
to the applicant.
Mr. Carlsmith said that he would prefer the latitude of a two story building
Mr. Bayer suggested the Board table the application.
Mr. Farris observed that Mr. Carlsmith characterized this as a two story building, and he
understands it as two stories, even thought architecturally it is a 1.5 story.
Mr. Carlsmith asked why the Board should restrict this lot from building a two story building.
Mr. Bayer explained that the Board is required to consider the criteria of sections 8.3 and 8.7
along with 6.7, which address issues such as sewage, drainage, etc. and without a specific
structure to evaluate, it becomes difficult to approve.
Mr. Meyer said that he was hesitant to place the restriction of a particular style, but that a
reasonable height restriction is okay.
Mr. Bayer asked the applicant if he had a time constraint if this item is tabled.
15
Mr. Carlsmith said that he and his wife had no time constraint. He asked for clarification that
the Board is addressing conditional occupancy only at this point, and not the variance.
Mr. Bayer confirmed that was the case.
Mrs. Blethen said that she has water views from an upstairs window, and hearing about the
house proposed, she still has no concerns about the home or its impact on water views.
Mr. Keeler observed that the Board could try to approve this application with conditions, and
the applicant could end up wishing they were not put in place, or the Board could table it and
allow the applicant to come back with something that will alleviate these concerns and fit
within the 8.5 criteria. This will allow the applicant to explore other options and potentially
not need the variance.
Mr. Thibodeau removed the motion on the table to approve the application.
Mr. Thibodeau moved to table the application under 6.7.
Mr. Meyer seconded.
Mr. Keeler clarified that the motion was to table only the 6.7 application, in order for the
applicant to bring more information to the Board.
Mr. Carlsmith observed that Mrs. Peterson has offered this lot for sale based on the written
opinion of Mr. Farris that the property is grandfathered for building, and is therefore a
buildable lot. If the Board tables this application, he was concerned that the Board was
putting Mrs. Peterson in a position where she doesn’t have a lot for sale.
Mr. Bayer observed that once approval from board is published, the value of the lot will
increase.
Application tabled 5-0.
Mrs. Peterson asked if this means she can’t sell the lot between now and the next time this
application comes before the Board.
Mr. Bayer said that was up to her, the Board has simply not made a decision on this
application.
Mr. Farris thought the question was if this tabling encumbers her lot.
Gloria MacGregor, representing Mrs. Peterson, asked for clarification on whether the board
has determined it is a buildable lot.
Mr. Keeler clarified that the Board hasn’t made the determination yet, because they don’t
have something in front of them against which to measure the criteria of 8.3 and 8.7.
Mr. Bayer explained that section 6.7 points to those sections.
Mr. Farris believed this application doesn’t encumber the lot due to there being no Purchase
and Sale agreement on the lot.
Mr. Audet asked if the question of Right, Title and Interest was handled by the letter from
Mrs. Peterson, and Mr. Farris said that it was.
Mrs. MacGregor said that she didn’t understand why this wasn’t approved, since the
applicant has to get a building permit before building.
Mr. Farris explained that if this was a conforming lot, and someone proposed a plan for a 35
foot high colonial the town could issue a building permit, but due to this being a legally
existing nonconforming lot they have to come before the Board.
The Board took up the section 8.5 variance request.
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Mr. Bayer asked if the board could even consider the variance, since the build-ability of the
lot has not been determined.
Mr. Thibodeau suggested that they could act on the exemplary design as presented.
Mr. Thibodeau moved to deny the application for a variance under section 8.5, amended to
add: moved to deny the exact footprint layout that was presented in the application.
Mr. Meyer seconded the motion, as well as the amendment
Mr. Keeler was concerned as to whether the applicant had shown that there is no feasible
alternative, and that the need for a variance is not caused by the owner building the house
as it is proposed.
Mr. Meyer observed that, even though there is a small building envelope on this property
without a variance, there would be ways to build a house there. Because of this particular
parcel, it is feasible to build something here, but it may not be feasible to build a solar house
on this lot.
Application denied 5-0.
Findings of fact:
Criteria 8.5 a - unique circumstances of the property. Vote that criteria is met: 0-5.
Mr. Bayer observed that they are all small lots in this neighborhood; they all have small
building envelopes, that is the general characteristic of the neighborhood.
Criteria 8.5 b – essential character of locality. Vote that criteria is met: 5-0.
Mr. Bayer said that the essential character of the locality would not be changed because
they are generally small lots and small houses in that locality.
Criteria 8.5 c – hardship not result of action of owner. Vote that critera is met: 1-4 (Meyer,
Keeler, Thibodeau, Given opposed)
Mr. Keeler explained that to him this criteria is not met because the very fact that the
applicant is building the house causes the need for the variance.
Criteria 8.5 d – not impair abutting property. Vote that critera is met: 5-0.
Mr. Thibodeau said that there are still significant setbacks in the application that are
similar to the neighbors and are not exceedingly close to neighbors.
Criteria 8.5 e – demonstrated need, not convenience. Vote that critera is met: 0-5.
Mr. Meyer said that it would be feasible to build on this parcel.
Findings for fact: criteria a, c and e are not met; criteria b and d are met. Conclusion of law
is that the variance cannot be granted.
Meeting adjourned: 10:55 pm.
Respectfully submitted,
Melissa Tryon
Recording Secretary

 

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