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Lamoine Board of Appeals Findings of Facts

August 16, 2006

Lamoine Board of Appeals

Findings of Facts and Conclusions of Law

Gordon R. Williams, Jr., Trustee, James K. Tweedie Revocable Trust vs.

Lamoine Planning Board

 

Findings of Fact

The appellant in this case is the owner of property at 45 Meadow Point Road , Tax Map 14 Lot 45. In the fall of 2005 the owner hired a contractor to repair a cabin that had fallen into a state of disrepair. The contractor advised, and the owner apparently agreed, that the cabin was damaged to the point that repair was not a feasible alternative, and it was demolished and removed from the property and a new cabin was constructed.

Neither the contractor nor the owner obtained a Shoreland Zoning Permit or a Building permit as required by the Lamoine Shoreland Zoning Ordinance and the Lamoine Building and Land Use Ordinance.

In early March of 2006 the owner's daughter, Catherine DeTuede, reported to the Town's Code Enforcement Officer , Dennis Ford, that construction of a new structure had commenced without the benefit of the necessary permits. Mr. Ford issued a Notice of Violation on March 14, 2006 and a Stop Work Order on March 24, 2006 . The Notice of Violation required the owner to make application to the Lamoine Planning Board for a Shoreland Zoning Permit, and Building Permit, and to meet with the Board of Selectmen regarding the noted violations.

An application to the Planning Board dated March 26, 2006 and presented on the Planning Board 's agenda for April 3, 2006 . The applicant did not attend that meeting and the Planning Board voted to table the matter until May 2, 2006 . At the May 2 nd meeting the Planning Board requested further information it required to render a decision on the application and the matter was placed on the agenda for June 6, 2006 . With the information requested in hand, the Planning Board voted on June 6, 2006 to approve the following motion:

“The Planning Board finds the un-permitted reconstruction of this property exceeds the maximum allowable increase contained in the Shoreland Zoning Ordinance in both area and volume and therefore cannot be permitted after the fact.”

On June 30, 2006 ,the appellant filed an administrative appeal in accordance with Section 16-I-3(a)1 of the Shoreland Zoning Ordinance. . Proper payment for the appeal along with payment for both the Building and Shoreland Zone Permits were received on July 17, 2006 . The Board of Appeals met with both sides on July 25, 2006 and set August 16, 2006 as the hearing date.

At the hearing on August 16, 2006 , the appellant presented assertions that the cabin is permitted under the Shoreland Zoning Ordinance because it is less than or equal to the 30% expansion permitted under the Ordinance.

Section 12-C-1 of the Lamoine Shoreland Zoning Ordinance provides as follows:

C. Non-conforming Structures

1. Expansions:

A non-conforming structure may be added to or expanded after obtaining a permit from the same permitting authority as that for a new structure, if such addition or expansion does not increase the non-conformity of the structure.

Further Limitations:

a. After January 1, 1989 if any portion of a structure is less than the required setback from the normal high-water line of a water body or upland edge of a wetland, that portion of the structure shall not be expanded in floor area or volume, by 30% or more, during the lifetime of the structure.

The “old” cabin was built sometime in the 1930's. According to the Lamoine Assessors property record cards, the old cabin's exterior dimension were 18' by 24', and with an area of 432 square feet. The appellant testified that the single story structure was constructed of twelve inch (12”) diameter logs, and that the interior floor dimension was likely 16' by 22', resulting in an interior floor dimension of 352 square feet.

The appellant believes the “old” cabin had 8-foot tall walls and a pitched roof with an overall height of 15'. The Planning Board determined the volume of the old cabin was likely 4,968 cubic feet. The appellant did not dispute this volume calculation.

Based on the information in the permit application, and on measurements made by the Code Enforcement Officer the Planning Board determined that the floor area of the “new” cabin, including an added loft which was not present in the old cabin, was 546 square feet., The Board further determined that the 546 square foot area represents a 55% expansion in floor area. The Board also determined the volume of the new cabin, based upon testimony presented by the applicant, is 6,485 cubic feet, a 30.173% increase over that of the old cabin,

At the Appeals Board hearing on August 16, the appellant presented new measurements made by Eric Allen, a licensed surveyor hired by the appellants. Mr. Allen's calculation of floor space of the “new” cabin is 523 square feet.

This is an increase of 171 square feet, or 48.58% in the floor area over that of the “old” cabin.

Mr. Allen's calculation of the volume of the “new” cabin is 6,134.9 cubic feet. He agreed with the Planning Board's calculation of the “old” cabin volume (4,968 cubic feet). By Mr. Allen's calculations, the “new” cabin volume exceeds that of the “old” cabin by 1,166.9 cubic feet, or an increase in volume of 23.48%. However, Mr. Allen's calculations were apparently based an “A” frame roof profile, and appeared to have omitted the volume of a dormer as shown on the appellant's permit application A survey submitted by the appellant shows that the cabin is less than 100-feet from the mean high water mark. The appellant and town agree that the “new” cabin is constructed on the same posts and same footprint as the “old” cabin, and is thus a non-conforming structure.

Conclusions of Law

The Lamoine Shoreland Zoning Ordinance passed in May 1993 is the controlling document in this case. Section 12 of the Shoreland Zoning Ordinance deals with non-conforming structures. Section C-1 is referenced in the findings of facts. Because the floor layout as submitted by the appellants, both in the original application and in the calculations submitted by Mr. Allen exceeds the 30% maximum expansion allowed, the application cannot be approved.

Section 12 of the Shoreland Zoning Ordinance does allow for reconstruction in place provided a permit is obtained within 1-year of the destruction of the non-conforming structure, but limited by Section C-1 to 30% of either floor area or volume of the preexisting non-conforming structure

A 30% floor area expansion would allow a maximum of 457.6 square feet. A 30% volume expansion would allow a maximum of 6,458.4 cubic feet.

The Lamoine Board of Appeals concludes, therefore, that reconstruction of the non-conforming building in the configuration as proposed violates Section 12 C-1 of the Shoreland Zoning Ordinance, and that the Planning Board's June 6, 2006 denial of the appellant's permit application was not clearly contrary to the provisions of the Ordinance

Signed,

Chris Tadema-Wielandt , Chairman

Lamoine Board of Appeals