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Lamoine Board of Appeals
Minutes of December 21, 2004

Draft - Subject to Approval & Change

Chairman Chris Tadema-Wielandt called the meeting to order at 7:01 PM. The meeting was recorded on audio tape, a portion recorded on video tape, and the entire meeting telecast on the Lamoine Government Cable TV Channel.

Present were: Appeals Board members Chris Tadema-Wielandt, John Wuorinen, Warren Craft, Nicholas Pappas, Jay Fowler, Alternates Hancock “Griff” Fenton, Reggie McDevitt; Secretary Stu Marckoon, Appellant Christine Schmidt, Planning Board members Michael Garrett, Stuart Branch and Cable TV producer Christopher Bowman.

Minutes – The board made numerous corrections to the minutes of November 30, 2004. Mr. Fowler moved to accept the minutes as corrected. Mr. McDevitt 2nd. Vote in favor was unanimous.

Request for Variance from Building & Land Use Ordinance – Christine Schmidt

Chairman Tadema-Wielandt said it appears there is a quorum since all board members and both alternates are present. He asked if anyone had a conflict. There were none.

Chairman Tadema-Wielandt said Ms. Schmidt applied to the Planning Board to construct what falls under the definition of a sign in the Building and Land Use Ordinance. He said the Planning Board did not issue a permit, rejecting the application because the sign requested exceeds the dimensional limits in the ordinance. He read Building and Land Use Ordinance section 14,F,16: Signs and Billboards: Signs and billboards relating to commercial or industrial use of the premises shall not exceed 6 square feet in area, 8 feet in height from grade, and two signs per premise. Signs and billboards related to commercial or industrial uses not on the premises shall be prohibited except as permitted under state law.

Chairman Tadema-Wielandt said according to the Planning Board permit application the sign Ms. Schmidt wants to create is 3-feet by 8-feet, and the Variance Application asks for a 4-foot by 8-foot sign. He read the project description from the Variance Application: “A display unit – 4’ x 8’ and about 6-inches deep with a clear plastic cover, melamine back and small roof for protection from the elements.”

Chairman Tadema-Wielandt said it appears from the file the application was filed in a timely manner on November 12, 2004, four days after the Planning Board denied the permit. He said the proper fee of $50 was paid. Chairman Tadema-Wielandt asked if there were any questions.

Mr. Pappas asked if the Board was talking about a 3’ x 8’ sign. Ms. Schmidt said 4’ x 8’. Mr. Fowler asked if the Appeals Board have allowed any signs larger than 2’ x 6’. Mr. Marckoon said in his 12-years there has never been a sign issue come before the Board of Appeals. Mr. Garrett said there had been no sign issues during his tenure on the Planning Board. He said few signs put up around town measure up to the standard in the ordinance. He said the dimensions are absurd. He said the Planning Board had recommended changes, but the size was well below what’s proposed. Mr. Branch said there are a number of signs in town larger than 6-square feet, including the sign at the Transfer Station and the Town Hall sign, and as you drive through town there are a lot of signs. He said he hopes there is a way to resolve this so Ms. Schmidt could get something she wants.

A brief discussion followed on the dimension allowed by the ordinance. Chairman Tadema-Wielandt clarified that it was 6-square feet. Mr. Fowler asked how large a sign has to be before it becomes a billboard. Mr. Branch said there was some question in the Planning Board as to whether it was all sign or partly a display of wares, and he wondered if there was any difference. Mr. Fenton said the ordinance addresses that, and it includes both the sign and display. He asked about the definition of a sign. Mr. Fenton read the definition from the Building and Land Use Ordinance: “A name, identification, description, display or illustration which is affixed to, painted or represented, directly or indirectly upon a building, structure, parcel or lot and which relates to an object, product, place, activity, person, institution, organization or business on the premises.

Mr. Fenton said the variance is requesting a display unit instead of a sign. Chairman Tadema-Wielandt said it appears the Planning Board treated the application as one for a sign and the basis for disapproval was that it exceeded the permitted dimension of six square feet.

Chairman Tadema-Wielandt read the variance application and said there were four standards Mrs. Schmidt had to meet in order to justify allowing the variance. He said Mrs. Schmidt would have to convince the board that the land in question cannot yield a reasonable return unless the variance is granted; the need for a variance is due to the unique circumstances of the property and not to the general conditions of the neighborhood; the granting of a variance will not alter the essential character of the locality, and the hardship is not the result of action taken by the appellant or a prior owner.

Ms. Schmidt said she owns a business in Southwest Harbor and displays paintings in her windows. She said that draws people to the property, and she hopes to sell the Southwest Harbor business. She said except for a couple of signs on the main road in Lamoine, she doesn’t know if people would be drawn to her gallery. She said with the proposed sign, people would look at what she has to offer and decide whether or not to visit. She said the best way to sell her work is for people to see it, and she hopes a display unit would draw them to the gallery which sits well back from the road.

Chairman Tadema-Wielandt asked Ms. Schmidt if she felt that a 6-square foot sign was not adequate. Ms. Schmidt pulled out a piece of her work and said they run 14” by 18”. She said she could make the display unit 3’ x 8’, but she didn’t know if they could go smaller than that. She said she didn’t think it would be large enough. Chairman Tadema-Wielandt asked if the display would merely be a representation of what one would find in the gallery. Ms. Schmidt answered yes. Chairman Tadema-Wielandt asked if it would be feasible to use photographs of work she wanted to display, and reduce them to a smaller size. Ms. Schmidt asked if that was 2 x 3. Chairman Tadema-Wielandt said six square feet. Ms. Schmidt said that’s a thought. She said it would be so small, though, that people would not know what is being displayed.

Mr. Fowler said the sign would be so far from the road that people couldn’t see it. Ms. Schmidt said there is a small sign on display now at the head of her driveway. Discussion followed on the type of sign. Chairman Tadema-Wielandt said the ordinance says the sign shall not exceed 6 square feet, and two signs per premises. He asked the board what its understanding was. Mr. Fowler and Mr. Wuorinen said they understand that to be two signs individually no larger than 6-square feet. Mr. Fenton said the language is not clear, whether the total of two signs would not be larger than 6-square feet or the individual signs cannot be larger than 6-square feet.

Mr. Fenton asked what part of the sign on the submitted drawing counts for display. He asked if the roof counts. He said the 6-square feet in the ordinance is not defined. Chairman Tadema-Wielandt said if one were to construct a sign in excess of the allowed dimension, the Code Enforcement Officer could issue a notice of violation. He said he was struck by the language as meaning two signs, each less than 6-square feet. Mr. Branch said the issue has not come before the Planning Board. Mr. Garrett said it’s not for the Planning Board to decide. Mr. Branch, in response to a question from Chairman Tadema-Wielandt said the Planning Board did not discuss two signs or adjacent signs. Chairman Tadema-Wielandt said the proposal on the artist’s rendering might be two signs.

Mr. Craft asked if a person coming down the road (Douglas Highway) would see artwork. Ms. Schmidt said not until they come down her road (Artists’ Way). Mr. Pappas said there is a very short window down Artists’ Way, and if one were not looking, they wouldn’t see the sign. Chairman Tadema-Wielandt asked Ms. Schmidt if the people looking for the gallery are unsure whether the art is 6’ x 6’ or oils or whatever. Ms. Schmidt said the first year she was there she didn’t want people, but they started showing up to her home. She said she didn’t know if the sign would work, but she would like a small semi-retirement business.

Chairman Tadema-Wielandt asked about the answer to the first set of standards for a variance, and read Ms. Schmidt’s Application: “In order to sell my work a display unit will give potential customers an idea of my style and they then can decide whether to proceed to the gallery at the bottom of the property.” Mr. Craft asked if that answers the question. Mr. Fowler said it didn’t say anything about land use. Chairman Tadema-Wielandt said the usual instance where a variance is requested is when one wants to build a house on an undersized lot. He said he’s not sure a 4’ x 8’ sign and the inability to erect it would prevent a reasonable return on the land. He said it was hard to see how. Ms. Schmidt said it’s not just a reasonable return; it’s any return. She said the definition stretches the point. Chairman Tadema-Wielandt said that question needs to be answered by state law.

Mr. McDevitt said the MDOT would erect a directional sign. Ms. Schmidt said she planned to apply for an MDOT sign in the spring. Mr. Fenton asked if Ms. Schmidt constructed something temporary, could that possibly be allowed. He said maybe with a 1’ x 6’ board with hooks to mount the displays, there might be a way to get around the ordinance with a temporary display. Ms. Schmidt said she could have the display panels on wheels when she needs them. Mr. Fenton said that might be taking the idea to the maximum. Chairman Tadema-Wielandt cautioned that it was not the place of the Appeals Board to advise people on how to circumvent the town ordinances. He said the Board needs to determine whether the application meets the statute. He asked if the property is going to yield a reasonable return.

Mr. Craft said he didn’t think that if Ms. Schmidt didn’t put up a sign that it would cause a hardship. Mr. Wuorinen said he’s inclined to agree with that interpretation. Mr. Fowler asked if the sign was that critical for Ms. Schmidt. Ms. Schmidt answered no. Chairman Tadema-Wielandt said Ms. Schmidt has succeeded selling her art elsewhere.

Chairman Tadema-Wielandt said the 2nd question regards the unique circumstances of the property. He said that’s usually in relation to a building or lot, possibly in a subdivision that might be different from all the lots in the neighborhood. He asked if this lot was any different than other lots in the neighborhood. Ms. Schmidt said the only way they could use the property to sell her work was to have something to draw people to it. She said she could erect another building. Mr. Fowler asked if word of mouth and reputation often bring people in. Ms. Schmidt said yes and no. She said there is no way for word of mouth to reach new tourists. Chairman Tadema-Wielandt asked about brochures. Ms. Schmidt said her experience with brochures is that people don’t read them until they get home.

Mr. Craft asked about sales over the Internet. Ms. Schmidt said she ruled that out in fear she might get too busy.

Mr. Marckoon suggested the Board look at the scope of Section 14 of the Building and Land Use Ordinance. Chairman Tadema-Wielandt read that section: This section governs the establishment of buildings, developments, or other structures for commercial/industrial uses: the use of lands, building, or structures, other than a home occupation, the intent of which is the production of income from the buying and selling of goods and/or services, exclusive of rental of residential buildings and/or dwelling units. The establishment of 3 or more commercial, industrial, institutional, or retail establishments on any one tract or parcel of land shall constitute a subdivision. (see section 12)

Mr. Marckoon said Ms. Schmidt has not asked for a commercial building permit. He said this appears to be more like a home occupation. Mr. Fowler asked if the home occupation was in a separate building. Ms. Schmidt said the gallery is in her garage. Mr. Fenton said section 14B makes no reference to home occupation. He said this might fit the project nicely, but he’s not sure how a sign plays into that.

Chairman Tadema-Wielandt said Section 14 as the section considered by the Planning Board. He said that really isn’t the section that deals with signs outside of a commercial section. Mr. Fowler said with a home occupation, it wouldn’t matter what the sign size was because the standard in section 14 doesn’t apply to home occupations. Mr. Garrett said he thinks it does. Mr. Fowler said the application is checked commercial. Ms. Schmidt said it is commercial, but it’s done at a home.

Chairman Tadema-Wielandt said he didn’t know the proposed use meets the definition of commercial, and he didn’t know if it rises to the level of commercial use under the land use code. He read the definition of commercial use: The use of lands, buildings, or structures, other than a "home occupation" defined below, the intent and result of which activity is the production of income from the buying and selling of goods and/or services, exclusive of rental of residential buildings and/or dwelling units. Chairman Tadema-Wielandt then read the definition of home occupation: an occupation or profession which is customarily conducted on or in a residential structure or property and which 1) clearly incidental to and compatible with the residential use of the property and surrounding residential uses; and 2) which employs no more than two (2) persons other than family members residing in the home.

Mr. Craft said it seems the ordinance reads that the 3’ x 2’ restriction does not apply for a home occupation. Chairman Tadema-Wielandt said that is the section that deals with commercial and industrial uses. Mr. Craft asked what governs the size of the sign. He said this section does not govern what is done with a home business.

Mr. Wuorinen referred to Section 1, the scope and read the last sentence: This code does not require that a permit be obtained for the construction or placement of a dog house, children's playhouse, tool shed, or similar small building having not more than 100 square feet providing such structures meet all other requirements of this code. He asked if this is a display a sign or a small structure. Mr. Craft said it has a roof, and the dimensions don’t exceed 100-square feet.

Chairman Tadema-Wielandt said while this might be useful to Ms. Schmidt; the Board’s job is not to advise her. Mr. Fenton said if section 14 doesn’t apply, maybe there should be another look by the Planning Board. Chairman Tadema-Wielandt said he didn’t know but the Appeals Board couldn’t issue the variance Ms. Schmidt has applied for. He said state law requires positive findings on four distinct things. He said he didn’t think the Appeals Board could issue a permit, unless the Board issues a variance.

Mr. Fenton asked if the Board should issue findings of fact. Chairman Tadema-Wielandt said it can and must. Mr. Fowler said it’s null and void. Mr. Wuorinen said the reasonable return justification is tough. Mr. Craft said it should indicate income.

Chairman Tadema-Wielandt said the Board is being asked to grant a variance from the size limit. He said Ms. Schmidt needs to convince the Board that lack of a 2’ x 3’ sign would not yield a reasonable return on her land, but a 4’ x 8’ sign would. Mr. Craft said Ms. Schmidt has not done that.

Chairman Tadema-Wielandt said Ms. Schmidt has to show unique circumstances of the property. He asked if the layout of the land was something special. He said the Board would have to find that it would not alter the character of the locality. He said he didn’t think it would make any difference to the neighborhood. Mr. Craft asked what would happen if the sign were portable. Chairman Tadema-Wielandt said that’s not what was proposed. Ms. Schmidt said that would be easy enough to do. Mr. Wuorinen asked if there were any distinction between a fixed and moveable sign.

Chairman Tadema-Wielandt said the Appeals Board has discussed ideas and alternatives, and it needs to act on the application. Mr. Craft said the Board needs to determine the meaning and spirit of item number one. He asked if it means land value or income. Chairman Tadema-Wielandt said a reasonable return does not equal a maximum return. He said he hasn’t heard there would not be a reasonable return. Ms Schmidt said it would only be a modest return. Chairman Tadema-Wielandt said he didn’t know, but the proposal sounds like a maximum return.

Mr. Wuorinen asked if the Board was ready to vote on Item # 1. Chairman Tadema-Wielandt asked if there was any other comment on reasonable return. Mr. Craft said Ms Schmidt has other options. Chairman Tadema-Wielandt said it’s not absolutely essential that Ms. Schmidt have a 4’ x 8’ sign, and she would not go out of business or lose her property because she doesn’t have one.

Mr. Wuorinen moved that the board find the land cannot yield a reasonable return unless the variance is granted. Mr. Fenton asked if he could 2nd the motion. Chairman Tadema-Wielandt said it would be better for a regular member to do that. Mr. Pappas 2nd. Vote was 0 Yes, 5 No.

Chairman Tadema-Wielandt said the law requires an affirmative finding on all four criteria, and it makes no sense to go any further. He said he needed a motion to deny the variance. Mr. Wuorinen moved to deny the application of Christine Schmidt for a variance of the Building and Land Use Ordinance. Chairman Tadema-Wielandt 2nd. Vote in favor was 5-0.

There being no further matters to discuss, Mr. Wuorinen moved to adjourn, Mr. Craft 2nd, and the vote in favor was 5-0.

Respectfully submitted,


Stu Marckoon, Secretary