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ZONING BOARD OF APPEALS MARCH 2008 MINUTES
1
TOWN OF FALMOUTH
BOARD OF ZONING APPEALS
TUESDAY, MARCH 25, 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 6:32 pm.
Mr. Audet was designated as a voting member for the meeting.
1. Minutes
Mr. Keeler moved to approve the January 29, 2008 meeting minutes as amended, Mr. Meyer
seconded. Minutes approved 6-0.
Administrative Agenda Items:
2. Evaluation of applications
Mr. Farris stated that the application of Bridget Douglas is not complete; he requested more
information on the plot plan and has not received it. The other applications are complete.
Bridget Douglas– Is requesting Conditional Use approval under Section 5.21 for a Home
Occupation for a daycare at 9 Harriette St, Parcel #U54-011, zoned “RA”.
Mr. Farris stated that Ms. Douglas needed to provide more information about the number of
parking spaces, the distance from the street, more information about the location of the house
on the lot, distance to abutters, more information about the use of the rooms, size of the
rooms/dimensions of the rooms, and calculations of square footage.
Mr. Keeler wanted to hear a complete application; Mr. Meyer also would like a complete
application. Mr. Audet didn’t feel that the drawing is complete.
Ms. Douglas stated that she did the drawing with Patrice in the Codes office. She said she
should have contacted Mr. Farris but didn’t.
Mr. Bayer said that Section 8.8 b states that the Board can review the appeal and can
determine whether to hear the application. He felt it was best to recommend that they defer this
application until the application is complete.
Mr. Thibodeau felt they should give the applicant an idea of what the Board wants to see.
Mr. Bayer said that they shouldn’t do it on a regular basis, but it seems a good idea in this case.
Mr. Thibodeau explained that the Board wants to see the square footage of the entire house laid
out to scale in an engineered drawing; these things will be required in the permitting process for
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the state. How kids will be dropped off and picked up - the traffic flow would be important for the
Board to see; also setbacks from abutters, screening and buffering, any feedback from abutters.
Mr. Bayer said that a letter was received from Daisy Marin on March 21 in regard to this matter.
Mr. Audet said that the location of lighting would also be important. At 5pm in the winter, would
need outdoor lighting. 5.21 c would be important for the applicant to review, also 8.7 and 8.3.
He suggested the applicant be in contact with the Code Enforcement Officer with any questions.
Mr. Keeler asked if 8.8 was appropriate, seeing as this isn’t technically an appeal.
Mr. Thibodeau moved to table the application.
Mr. Keeler seconded.
After some discussion, the Board felt that tabling was appropriate for this application.
Application tabled 5-0.
Regular Agenda Items:
1. Bruce B. Morse II- Is requesting Conditional Use approval under Section 8.3 and 6.7 to
move a property line at 55 Mountain Rd. Parcel #R07-004-B, zoned, “FF”.
Mr. Morse presented his application. His parents currently own 57 Mountain Road, and he now
owns 55 Mountain Road. Both properties were surveyed 1½ years ago, and the survey showed
that the house at 57 was within 7-10 feet of the property line. His father wanted to have the
property line adjusted so that if he ever sold the property it would conform to today’s standards.
The proposed reconfiguration of the lots does not change the square footage of either lot.
Public comment period opened; no public comment.
Mr. Given referenced a note in the application that there was some error.
Mr. Morse said that there was an error on 57 Mountain Road, but that is on the other property
line, on the other side. The surveyors in the past just drew a straight line. His father always
assumed that he had 20-30 feet next to the barn, but he actually has something like 45 feet. Mr.
Morse said he doesn’t think there is any error that affects 55 Mountain Road.
Mr. Thibodeau asked if there was a more detailed survey plan than that in the Board packet.
Mr. Morse provided a full size copy of the survey plan.
Mr. Thibodeau declared that the full size plan was in order.
Mr. Keeler asked Mr. Farris why this application is under 8.3 and 6.7.
Mr. Farris explained that they are trying to correct the boundaries on these two lots. It was not
uncommon to use line-of-sight in the 1960’s and 70’s to create lot lines. These lines met the
Residential B standards at the time, but the house was placed incorrectly on the lot. Now it is in
the Farm and Forest district, which requires larger lots and more frontage.
Mr. Keeler asked about lot width, which is measured at the setback line, and if this application is
decreasing the lot width.
Mr. Farris said they may be decreasing the lot width a bit; there may be an issue where the line
has to be straight for the first 25 feet.
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Mr. Keeler thinks they could preserve the integrity of the existing lot width at the required
setback distance, which would not make the lot width any less conforming.
Mr. Meyer observed that a nonconforming lot can continue as it existed. He was troubled about
whether the Board can actually do this. The lot width from the setback needs to be maintained,
so, the line needs to stay the same for 25 feet from the road, and then they can have the jog.
Mr. Morse said that they can move the jog back. The acreage of the lots will stay the same. He
is looking to build on the 55 Mountain Road lot.
Mr. Audet observed that the lot width in that zone is 250 feet, but this is only 180 feet. However,
it looked reasonable to him.
Mr. Bayer asked Mr. Morse why he was making this request.
Mr. Morse explained that the back corner of the house at 57 Mountain Rd. is 7-10 feet from the
property line. If they ever want to sell the lot, his father wants it to be conforming.
Mr. Bayer asked if Mr. Morse had the authority from his father to be here on his behalf.
Mr. Morse said he did; his father is on vacation.
Mr. Keeler moved to approve the application under 8.3 and 6.7, with the provision that the jog in
the sideline be moved back 25 feet from the road before it is changed. Amended to add: the
square footage of each lot shall remain the same.
Mr. Audet seconded.
Mr. Thibodeau suggested an amendment to the motion that they reconfigure to maintain the
current lot size of each. The sq footage of each lot should remain the same.
Mr. Keeler amended his motion to add Mr. Thibodeau’s comment.
Application approved 4-0. (Meyer abstained)
2. Christopher Branson- Is requesting Conditional Use approval under Section 5.22.1 for an
Accessory at 6 Webber Way. Parcel U01-165, zoned “RA”.
Mr. Branson presented his application. He is applying to add an accessory apartment. The
existing house is over 3,000 sq feet which is more than he needs; they want to break off part of
the existing living space to add an accessory apartment; there is no additional construction
planned. Robert Greenlaw surveyed the building, and has provided the calculations of the
square footage of each dwelling unit planned. Unit #1, the accessory living space will be 748 sq
ft, 29% of the size of the primary living area. The primary unit will be 2595 sq feet. Mr. Branson
provided additional material by fax, which was provided to the Board in their packets.
Public comment period opened – there was no public comment.
Mr. Meyer asked if the area is served by public sewer.
Mr. Branson said yes.
Mr. Keeler asked for clarification about the statement about no new construction planned.
Mr. Branson clarified that there is no new construction in the footprint; there will be interior
construction.
Mr. Keeler asked if Webber Way is a Private Way.
Mr. Farris said that it is one of the old private ways, with a right-of-way over the lot.
Mr. Branson said that he was not aware of any formal agreement.
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Mr. Keeler observed that this application would result in one more user over a private way.
Mr. Branson said yes.
Mr. Keeler asked about the figure of 2595 feet, and wondered if that represented all finished
floor area.
Mr. Branson said it was.
Mr. Keeler said that on the wing labeled “studio” in the diagrams, it looks like a two story
structure from the pictures.
Mr. Branson explained that it is one story of living space, with a garage underneath. It is a
finished space.
Mr. Keeler observed that the 2595 square feet does not count the garage space.
Mr. Branson said that was correct.
Mr. Keeler asked if Mr. Farris was comfortable with what was in the submission; Mr. Keeler
wasn’t sure it contained all the detail that is requested in 5.22.1 and 2.
Mr. Farris said he was. Mr. Branson and he had some discussion about some of the details of
the lot. The deed lacks specificity pursuant to metes and bounds. To get that information they
would have to do an abstract of all abutting property. That is the lot as depicted on the Town’s
maps.
Mr. Keeler asked about one other requirement about description of the entryways.
Mr. Branson said that all the entrances are shown on the diagram.
Mr. Keeler said that one main entrance is required, and that all others shall be subordinate.
Mr. Farris said that is shown in the photos and front elevation.
Mr. Branson said that in the first photo in the packet the main entrance to the dwelling is shown
right in the middle. The entrance to the second dwelling is around the corner to the left.
Therefore, the primary entrance is the one that is front and center, and the secondary dwelling
entrance is around the corner. Mr. Branson explained to the Board where the entrance to the
secondary dwelling will be.
Mr. Audet was concerned that the entrances were clear to emergency personnel if they came.
Mr. Thibodeau asked if the zoning district was shown here.
Mr. Branson said it is on the plot plan, it is RA-1.
Mr. Thibodeau observed that the plan is not to scale, and that section 5.22 b states that a plot
site plan is required. He felt that the application has some merit but falls short of the
requirements of the ordinance. He was concerned about setting a precedence of applications
not meeting requirements. He thought this application doesn’t meet the standards that the
Board is looking for. He referenced a lack of details for plumbing facilities, use of the rooms,
and that it is not a scale drawing; in his opinion the use of the rooms are not shown accurately
enough. He wanted the applicant to show boundaries, abutters, parking, sewage, etc.
Mr. Branson said that most of the information is here. All plumbing and bath fixtures are shown,
and the use of the rooms is shown. The plan says “not to scale”, but he thought Mr. Greenlaw
did do it to scale, because Mr. Greenlaw went out and measured. He reiterated that there will
be absolutely no new construction going on, not moving anything, or changing parking. There
is more than adequate parking on the site. To do an accurate survey would be a huge expense,
which he felt would not add anything to the application. He hopes the Board will not require him
to do a useless exercise that would not add any useful information.
Mr. Thibodeau said that he was not looking for a boundary survey. He thought they could take
the tax map and superimpose it. He was trying to set a standard that all applications should
meet minimum standards.
Mr. Branson said that he had gone to great expense in hiring Mr. Greenlaw in trying to put
together information that the Board really needed. He consulted with Mr. Farris to try and turn in
a complete application, he was not trying to cut corners.
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Mr. Given said that he felt there was enough in this application to meet the request. He thought
in going forward the Board does need to get more information for applications, but he felt this
one had enough.
Mr. Audet knows firsthand that it is critical to have the apartment secondary to the main living
area. He asked if the current use is a single family dwelling.
Mr. Branson said that he thinks there was a home office there, so there were two uses.
Mr. Audet observed that it is such a sprawling property that he thought the accessory was the
main dwelling when he looked at the photo. The accessory wasn’t subordinate to the main
dwelling in the photo. Section 5.22 says all entrances shall be subordinate to the main entrance.
Mr. Branson said that this is a sprawling structure, but the accessory is distinctly subordinate.
The main focus of the building when you come into the property is to the right, away from the
accessory unit. Mr. Branson explained the location and design of the driveway, and how it
draws focus to the main unit first. The ridgeline of the right side is higher than the left side, so it
draws the eye away from the left side. It is a very unusual structure, and an unusual property,
and he is looking forward to making it a nicer place.
Mr. Bayer asked about a staircase going down in the proposed apartment, and asked if there is
a basement there.
Mr. Branson said that there is an unfinished basement. The tenants will have access to it for
storage, but it is not part of the rental.
Mr. Bayer referenced section 5.22.1 and said that sewage facilities are part of the required plan.
Mr. Branson said that the tax map shows where the sewer easement goes through the property.
Mr. Thibodeau asked if it is shown on the plan.
Mr. Branson said that it is not.
Mr. Thibodeau asked Mr. Branson about his statement about there being no new construction.
Mr. Branson clarified that it would be interior renovations.
Mr. Thibodeau asked if he will need a building permit.
Mr. Branson said that he assumed so. Regarding the sewer easement, he said he is unsure
where the sewer pipe runs. Aside from digging it up, he doesn’t know how to locate it. The
town probably has more information that he has.
Mr. Bayer asked if there are any other right-of-ways other than the sewer easement.
Mr. Branson said that he was not aware of any.
Mr. Meyer said that in regards to the entrance, it looks like there is a door from the main
entrance into the kitchen of the accessory apartment.
Mr. Branson said yes there is; there is already a deadbolt on that door. His understanding is
that the prior owner was already using this dwelling for this use. His plan is to leave it as is, with
no access from primary to secondary dwelling.
Mr. Meyer asked if that door into the accessory dwelling is a functional door.
Mr. Branson said that it is.
Mr. Meyer asked if the square footages shown are provided by Mr. Greenlaw’s measurements.
Mr. Branson said yes.
Mr. Meyer observed that the Board has had very incomplete plans in the past for accessory unit
applications. This application is minimally sufficient, with the input of the surveyor.
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Mr. Thibodeau asked Mr. Farris what will have to be submitted for fire separation when the
applicant applies for the building permit.
Mr. Farris explained what the applicant would need to submit, which included a scale drawing of
the floor plan showing also the existing layout.
Mr. Thibodeau said that he is not suggesting anything that the applicant wouldn’t have to do
anyway for the building permit. He didn’t feel he is out of line requiring a scaled drawing and is
therefore in favor of tabling the application. He asked if it would put the applicant in a bad
position in regards to the purchase and sale if the Board doesn’t approve the application tonight.
Mr. Branson said that it would. His closing is imminent, and he was not sure what a table would
do for that. No approval would have a big effect. It would be a true hardship.
Mr. Thibodeau moved to approve the application under 5.22.1 with the condition that the
applicant provides the code enforcement officer with the information required by b and c of that
ordinance to the CEO’s satisfaction, including a scaled floor plan, locations of egress,
separation, parking, and sewer easement.
Mr. Bayer seconded.
Mr. Bayer said that this application is a lot better than the Board has seen and approved and is
satisfied that it complies with the requirements. It doesn’t exactly comply, but seems unfair to
this applicant to require more.
Mr. Audet said that it doesn’t seem unfair to ask for what the ordinance requires.
Mr. Meyer said that he agreed with Mr. Bayer. He has seen less complete applications. He
asked if Mr. Farris is confident that this is public sewer.
Mr. Farris said that he was.
Mr. Meyer suggested a modification to the motion that the door from the main dwelling into the
accessory be maintained as a usable door, even if locked, for the purposes of public safety.
Mr. Keeler said that he felt that the Board needs to turn the ship a little more gently to get where
they want to go. In this instance the applicant provided more information when it was
requested. A lot of the information required was provided, some of it the Board had to dig for,
but Mr. Keeler was generally comfortable with what was provided. The item that he was most
troubled with was the notation that the drawing is not to scale, but that may have been an error;
it seems to be a very detailed drawing. He was not sure what is required for providing
information on sewage when one is on public sewer. He would like to see the plan cleaned up,
taking off the notation of “drawing not to scale”, but he was ready to move forward on this. In
reference to the subordination of structure, he was not sure that is a requirement, just
subordination of the entryway. According to the pictures, the entryway is coming into both
dwellings, which seems a good thing. He was not comfortable with Mr. Thibodeau’s motion; he
would rather amend the motion to require the drawing be to scale.
Mr. Thibodeau said that he was not asking for anything the applicant won’t have to do anyway.
He didn’t think these conditions are unreasonable. He has not asked for anything that isn’t in
the ordinance, and he was not turning this applicant away; he has been very accommodating
with this applicant.
Mr. Bayer said that he didn’t feel that it is unreasonable to ask for additional information, but he
was concerned with fairness to the applicant compared with what has been required in the past.
He agreed that not everything is mentioned here, but he was not prepared to depart from
precedence, and this is a very detailed application compared with some others that have come
before the Board.
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Mr. Audet said that he was looking at both tax cards and coming up with a difference in square
feet of living space.
Mr. Branson said that the tax map was not based on actual measurements.
Mr. Keeler said that since they have a statement from surveyor here they have to take that at
face value.
Mr. Farris said that gross living area is shown on the tax sheet as 2568 sq feet. That easterly
wing of the building is supposed to be unfinished. There was an unfinished potting shed, which
seems to have been finished at some point.
Mr. Audet asked if Mr. Branson was representing that the measurements of the surveyor are
accurate.
Mr. Branson said yes, he was there when he measured it. It is no longer a potting shed.
Motion fails 2-3 (Meyer, Bayer, Given)
Mr. Meyer moved to approve the application under 5.22 with the condition that the door into the
apartment from the main foyer be left as a functional door, though it could be locked, and a
scaled drawing to the satisfaction of the code enforcement officer be provided before the
building permit is issued.
Mr. Keeler seconded.
Application approved 4-1 (Thibodeau)
Other Business:
Bill Plouffe, Town Attorney, presented to the Board that an appeal of a Board decision against
Jeffrey and Lynne Leighton of Underwood Rd. has been taken to Superior Court. The board did
not make explicit findings and conclusions at the time of the original decision. Mr. Mazziotti, the
applicant’s attorney, felt that the minutes were sufficient, but the judge and Mr. Plouffe both felt
that more accurate findings would be appropriate. The judge felt that whoever won, the case
would be appealed, so he has remanded the decision to the Board for findings and conclusions.
It will go back for decision by the Supreme Court at that time.
As long as no one requests that the record be re-opened the board can adopt findings based on
the record. The Board can have staff or Mr. Plouffe draft findings and conclusions, a Board
member can submit them, or they can deliberate and then have staff or Mr. Plouffe draft them.
Mr. Meyer asked Mr. Plouffe if he felt there was an adequate record to draft findings.
Mr. Plouffe said yes. Mr. Mazziotti had a court transcript made, and the records are sufficient.
Mr. Keeler asked if they know at this point whether it will come back to the Board.
Mr. Plouffe said that it will definitely come back on remand to this board; the question is whether
the Superior Court will want to review it again.
3. Verrill Dana, LLP Attorneys at Law, On Behalf of Margaret Ann Gauthier, Trustee of
the Paul J. Gauthier family Trust- Is appealing a decision of the Code Enforcement Officer
regarding the division of a lot at Pride Farm Road, Parcel R09-043-C, zoned F&F.
Scott Anderson, on behalf of Margaret Ann Gauthier, presented the application. Steve Gauthier
is also here and has been the primary person working with the Town on these issues. He
provided the Board members with a diagram detailing the two options of the desired lot split.
Steve has been in touch with Mr. Farris regarding this lot split; it is approx a 50 acre lot. Option
A was conveying a small parcel along Pride Farm Road to a buyer. The response from Mr.
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Farris to this proposal was that no building permit would be possible due to subdivision rules.
Option B was a conveyance of a large portion of the northern edge of the parcel to an abutter.
That would leave the trust with a smaller parcel along Pride Farm Road, which they would then
sell to a buyer. Mr. Farris has indicated that a building permit would not be allowable for either
option. The trust is willing to do either of these options. Mr. Anderson asked if the Board
wanted to hear each separately, or consider them together.
The board decided to hear the issues separately, for clarity of the legal issues. They will hear
Mr. Anderson’s presentation on the first issue, and then hear the Town’s rebuttal.
Mr. Anderson explained that Option A is that the trust would split out a small parcel on Pride
Farm Road and sell it. They are appealing Mr. Farris’s decision that a building permit would not
be allowed on that parcel without the Trust going before the Planning Board for subdivision
approval. The Trust wants the Board to reverse that decision and allow this split without
subdivision approval. He explained the history of splits of the parent lot. The ordinance states
that any more than 3 splits in five years would need subdivision approval. The creation of R09-
43-L in 2004 is the only split in the last 5 years. That conveyance was between the Trust and
Steven Gauthier. The Trust was established by Mr. Gauthier’s father. A conveyance between
family members does not trigger subdivision approval. A 2004 letter from Tom Lister at the
Town certifies that the transfer was an exempt transaction. The title insurance company
questioned this conveyance, since it was from the Trust and not from a direct family member.
Mr. Farris’ response to this was that the trust was a family trust and thus fit the criterion.
According to state subdivision statute, specifically section 4.b of the definition of subdivision,
once a particular lot is exempt you do not count that lot going forward when you try to determine
if three lots have been created in 5 years. So going back 5 years, not counting the conveyance
to Steve Gauthier, the current proposed split doesn’t trigger subdivision.
The 2/4/08 letter from Mr. Farris, which is the decision being appealed here, stated that a Trust
is an entity under the law but not a person as defined in the subdivision statute. In Mr. Farris’s
response to our appeal, he states that he has not reversed his April 26, 2004 letter that the lot
created for Mr. Gauthier was a legal transfer. So, Mr. Farris agrees that the 2004 conveyance
was an exempt lot, but he contends that the current proposed split is the third split in five years
and thus triggers subdivision. Our position is that the opinion in 2004 was correct, that it was an
exempt lot, and the current proposed split is the first split in five years and a building permit
should be issued for this property without requiring subdivision approval.
Mr. Farris, the code enforcement officer for the Town, stated that he didn’t disagree with Mr.
Anderson, if you agree with the premise that you can continue to split a vacant lot every five
years. In 2002 the State changed the statute, retroactive to June 2001, to require residency.
There was some discussion held at that time that the Town would not cite anyone during that
time period and that building permits would be issued, but that they would be counted as lot
splits for the purposes of subdivision. When Mr. Gauthier came in with his newly-created lot,
there were two splits that had taken place since the 2001 law took place. The Town accepted
that lot, but for the purposes of the five year rule, we had two lots that were created without
subdivision review within five years. In a letter March 17, 2004, Mr. Farris stated that further lot
splits would be subject to subdivision. Douglas Title’s April 22, 2004 letter stated that they felt
that the conveyance to Mr. Gauthier triggered subdivision approval. The Town issued a building
permit and chose not to call it an illegal lot, but for the purpose of the five year rule, they had
their two lots. But it was questioned. And then the law changed, and now you can no longer
create lots from a vacant lot every five years. If you bought a lot tomorrow that was big enough,
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it is Mr. Farris’ opinion that you couldn’t split it, unless you live there, without subdivision
approval.
Mr. Anderson responded to Mr. Farris’s statements. He said he didn’t feel that anything that
has been done has been out of the subdivision rules; it is totally legal. He said that you have to
look at this in five year blocks, a 2001 conveyance was seven years ago, and would not apply in
2008. There was a change in the law in 2001, but it is not limited to when you have your
residency in the parcel. The statue defines a subdivision, with two exceptions. The first
exception is what Mr. Farris was talking about - establishing residency; the second is whether
the lot is exempt, according to certain criteria, one of which is a conveyance from a blood
relative, which still applies.
Mr. Farris said that the homestead exemption says to him that if you buy 40 acres and intend to
split it, you must build on the 40 acres and live there for 5 years before you can split off. The
parent parcel must remain in the hands of the owners.
A public comment period opened:
Bob Simons, 311 Pride Farm Rd., asked if a land owner is allowed to split a vacant lot off in any
time period without going to subdivision. R09-43-C has not been split; the last split was the
Gauthier split.
Public comment period closed.
Mr. Plouffe said that subdivision law is complex, there is doubt about various provisions and it
gets interpreted different ways. He said that he has always interpreted it as having a rolling fiveyear
window, so you have to look at the past five years to determine what you are going to do
as far as the second dividing. The accepted view of the Bar is, if a person acquires a lot, in a
five year period they can make one dividing and do not need subdivision review. Another
dividing in that five year period that does not qualify for an exemption would require subdivision
review. A conveyance to an abutter is exempt, but it cannot create another lot. There are
questions about what that means. It is generally accepted that it is a five year window, lots that
qualify for an exemption are not counted, as long as availing one’s self of an exemption was not
to avoid the subdivision law; you cannot have intent to avoid subdivision. This applies to all
exemptions now.
Mr. Bayer asked if they assume the d.4 exemption, conveyance to a relation to a donor, is
legitimately a gift -
Mr. Plouffe said that they have to; it was the determination of the Town and was not appealed,
so it stands.
Mr. Bayer asked how it applies to the rolling five year window.
Mr. Plouffe said that lot doesn’t count.
Mr. Bayer said the last lot conveyed was in 2001, if we follow that.
Mr. Plouffe said that is the point of 4.b; you consider its existence, but you don’t consider it for
subdivision. If a developer splits a lot, then comes in three years later with a 10-lot subdivision,
you consider the first lot, but you don’t include it in subdivision review.
Mr. Keeler said that it has always been his interpretation that there is a rolling five-year window;
he hadn’t thought of it in Mr. Farris’ way before. He went back and reviewed the ordinance, but
he still doesn’t think of it that way. The 2004 conveyance was a gift lot, one could argue the
Trust/mother relationship, but subdivision is three or more lots within a 5-year period. You don’t
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have to count one of the lots if one is a homestead, but he doesn’t think the legislature got rid of
the rolling five-year window. Whatever issues come out of dividing land into parcels, they get
absorbed if you only add one every five years. Where the homestead exemption is described,
the conference materials provided by Mr. Farris in the Board’s packets state that a patient
landowner can divide their parcel once every five years without subdivision approval. Mr.
Keeler thought that this rule is still applicable. He understands the purpose of the “intent to
avoid” goal, but thought it would be very hard to prove. He still thinks a landowner gets a free
bite every five years.
Mr. Meyer asked Mr. Farris if it was his argument that there is intent to avoid subdivision here.
Mr. Farris said that he chose not to raise the issue of intent to avoid. The Town was successful
in proving intent before. When this parcel was first suggested in 2005 he was concerned with
intent, but not in this application. He admitted that he failed to notice the point in the conference
materials referenced by Mr. Keeler i.e. that a “patient landowner can divide their parcel once
every five years”. He said that doesn’t come up very often in subdivision training. He felt that
reference puts this question to rest. He now thought that the applicant could convey to an
abutter if it doesn’t create another lot, sell the original parcel and get a building permit.
Mr. Audet asked if Mr. Gauthier lives currently at 43-L.
Mr. Gauthier said that he does live on 43-L. He went for the permit in 2003.
Mr. Audet stated that that conveyance was a gift and is exempt.
Mr. Keeler moved to grant the appeal of Margaret Ann Gauthier with respect to the letter from
Mr. Farris dated Feb. 4, 2008.
Mr. Thibodeau seconded.
Finding of fact – the 2004 conveyance of the lot from the larger parcel was an exempt
conveyance under subdivision law.
Conclusion of Law - subdivision approval is not required for the conveyance of the parcel
highlighted in red in the diagrams provided by the applicant.
Motion passed 5-0. Appeal granted.
Mr. Anderson presented the second option: that the northern piece of the parcel could be
conveyed to an abutter, without creating a build-able lot, and that the remainder parcel could be
sold to a third party without subdivision approval.
Mr. Keeler asked who the abutter is.
Mr. Anderson said that there was no particular abutter in mind.
Mr. Thibodeau asked what happens if someone purchases an abutting piece of land and then
buys this parcel and merges it with their parcel.
Mr. Anderson said that length of ownership of the abutter doesn’t qualify. There is no restriction
on the time an abutter has owned the abutting lot before the conveyance of this lot.
Mr. Thibodeau asked Mr. Plouffe’s interpretation of this.
Mr. Plouffe said that he agreed that there is no time limit on the ownership of the abutting lot
before they can accept this conveyance, and then turn around and split this new larger lot and
sell it. He questioned whether the Board has jurisdiction to provide advisory opinions.
Mr. Anderson said that they haven’t filed a building permit for either of these options, but the
trust can’t move forward with either option because Mr. Farris had stated an opinion that a
building permit couldn’t be issued.
11
Mr. Bayer thought it was an excellent point about this potentially being an advisory opinion.
Mr. Keeler said that he had assumed that there was a real transaction here, but now it sounds
like this is just in theory. He didn’t think the Board had something to rule on here.
Mr. Anderson said that the ordinance provides that a decision or an opinion of the code
enforcement officer can be appealed to the Board.
Mr. Keeler said that, in the abstract, he could see how in a conveyance to an abutter you can
see the intent to avoid.
Mr. Anderson said that the issue was Mr. Farris’ opinion that, after the conveyance to an
abutter, the remaining parcel could not receive a building permit without Planning Board review.
The Board should not issue a decision that a parcel could be conveyed to an abutter, but they
could rule on the decision of the code enforcement officer.
Mr. Bayer said that the March 6, 2008 response from Mr. Farris stated that any division of R09-
43-C would require subdivision approval.
Mr. Anderson said that they are appealing the decision in the email from Mr. Farris on March 4,
2008 which stated that the lot was not buildable if they sold a portion to an abutter and then the
balance to a buyer.
Mr. Keeler observed that that opinion was based on what Mr. Farris now thinks was an incorrect
premise on the subdivision rule.
Mr. Audet said that the Board has now determined that we have a rolling five year window. How
the applicant decides to split that lot is up to them.
Mr. Keeler said the Board can’t give a ruling on this; they don’t have anything in front of them.
Mr. Anderson said they can’t rule on the sale to an abutter, but they can review the decision of
Mr. Farris or can determine that the email is not right for appeal.
Mr. Keeler asked if they could make a determination that the email is not right for appeal.
Mr. Plouffe thought so.
Mr. Bayer said that they could refuse to hear an appeal, outlined in section 8.8 b, if it doesn’t
present an appeal-able issue.
Mr. Thibodeau suggested Mr. Farris can write a letter to address this email and clarify the issue.
Mr. Farris said he would be glad to issue an opinion on a specific plan or specific issue.
Mr. Keeler moved that the second appeal of Margaret Ann Gauthier not be determined on the
finding of the Board that it is not right for action by this board.
Mr. Audet seconded.
Motion carries 5-0.
Meeting adjourned 9:33 pm.
Respectfully submitted,
Melissa Tryon
Recording Secretary

 

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